Byrds Manufacturing Corp.

BYRDS MANUFACTURING CORP. 147 Director in writing that it will comply with the foregoing recommendations,7 the National Labor Relations Board shall issue an order requiring the Respondent to take the aforesaid action. 7In the event that these Recommendations be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with the United Steelworkers of America, AFL-CIO, and its Local 1552 as the exclusive representative of all our employees in the appropriate unit described below, by refusing or failing to furnish to said Union, upon request, a list of employees in said unit who have received and are receiving incentive earnings for the period from June 12, 1960, to the present, and in the future, if incentive earnings are received beyond this date, including full information as to the hours worked, incentive hours, and incentive percentage for hours worked in arriving at the total incentive earnings for each of said employees. The bargaining unit referred to herein is described as follows: All production and maintenance employees employed at the employer's Carnegie, Pennsylvania, plant, excluding salaried employees, foremen, su- pervisors (including assistant foremen) in charge of any class of labor, watchmen, guards, and clerical employees. UNION ELECTRIC STEEL CORPORATION, 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. Employees may communicate directly with the Board 's Regional Office, 2107 Clark Building, 701-17 Liberty Avenue, Pittsburgh 22, Pennsylvania, Telephone No. Grant 1-2977, if they have any question concerning this notice or compliance with its provisions. Byrds Manufacturing Corp. and International Ladies Garment Workers Union, AFL-CIO. Cases Nos. 26-CA-1160 and 26-CA- 1220. December 18, 1962 DECISION AND ORDER On July 11, 1962, Trial Examiner Harold X. Summers 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 attached Intermediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices. Thereafter, the Re- spondent, the Charging Party, and the General Counsel filed excep- tions to the Intermediate Report and supporting briefs. 140 NLRB No. 14. 681-492-63-vol. 140-11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. 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 Inter- mediate 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. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modifications : (1) The backpay obligation of the Respondent shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing c6 Heating Co., 138 NLRB 716.2 (2) Immediately below the signature in the notice, insert the fol- lowing sentence : NoTE.-We will notify any of the above-named employees pres- ently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. I Member Rodgers affirms the findings of the Trial Examiner that Respondent had prior knowledge of the union adherence of the discriminatees , for the reasons stated by the Trial Examiner. However, he would reject the Trial Examiner's additional reliance on "the size and nature of the community in relation to the key position and size of the plant, the intensity of feeling on the Union and unionism, the extent of the conversations on the subject which took place . . . ( and) the fact that the number of those who openly espoused the Union cause was so small in relation to the total number of employees . The foregoing factors are, in his view, an unwarranted extension of the "small plant theory," which he has rejected in the past and continues to reject as a basis for finding knowledge. 2 For the reasons set forth in his dissent in Isis Plumbing & Heating Co ., supra, Mem- ber Rodgers would not grant interest on backpay, and does not approve such an award here. The Appendix is further modified by deleting the words "60 days from the date hereof" in the next to the last sentence of said notice and inserting in its place the words "60 consecutive days from the date of posting " INTERMEDIATE REPORT STATEMENT OF THE CASE Upon unfair labor practice charges filed on October 18, 1961, and on February 5, 1962 (and subsequent amendments thereto), by International Ladies Garment Work- ers Union, AFL-CIO, hereinafter called the Union, against Byrds Manufacturing Corp.,' hereinafter called Respondent, the General Counsel issued a consolidated complaint on March 12, 1962, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. Respondent's answer admitted some allegations of the complaint, denied others, and denied the commission of any unfair labor practices. ' The name appears as subsequently amended at the hearing. BYRDS MANUFACTURING CORP. 149 Pursuant to notice,2 a hearing was held before Trial Examiner Harold X. Summers at Star City, Arkansas, on March 14 and 15, 1962. All parties were afforded full opportunity to examine and cross-examine witnesses , to argue orally, and to submit briefs. Briefs have been filed by the General Counsel, by Respondent, and by the Charging Party, which briefs have been fully considered. Upon the entire record in the case, including my evaluation of the credibility of witnesses based upon the evidence and upon my observation of their demeanor, I make the following: FINDINGS OF FACT I. COMMERCE Byrds Manufacturing Corp., a corporation existing under the laws of the State of Arkansas, operates a plant at Star City, Arkansas, where it is engaged in the manu- facture of clothing. During the 12 months preceding the issuance of the consolidated complaint, which period is representative of all times material herein, Respond- ent sold and shipped from its Star City, Arkansas, plant finished products valued at in excess of $50,000 directly to customers located outside the State of Arkansas and purchased and received materials valued at in excess of $50,000 directly from points outside the State of Arkansas. The pleadings establish, and I find, that Respondent is engaged in commerce within the meaning of the Act. II. THE UNION International Ladies Garment Workers Union, AFL-CIO, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Star City, Arkansas, a town of 1,500 persons, is the county seat of predominantly rural Lincoln County, Arkansas. As far as the record reveals, Respondent's Star City plant is the sole manufacturing industry in the county. The plant has been in operation since January 1956. The plant building was erected, and is currently being expanded, by the Star City Industrial Corporation, hereinafter called the Industrial Corporation, whose main function is to bring industry to the vicinity. Respondent occupies the premises on a "lease-purchase " arrange- ment, title resting in Spartan Industries, Respondent's parent; Respondent pays a monthly "rental," and the Industrial Corporation is responsible for maintaining and remedying defects in the building. Respondent, at this plant, is engaged in the manufacture of men's and boys' dress shirts and ladies' blouses and gowns. Almost 700 individuals are involved in the operation, over 600 of whom are nonsupervisory production and maintenance em- ployees; 80 to 90 percent of the latter are women. Harold Evans is the plant manager . Just below him are S. E. Martin , cutting fore- man, Clarence Neely, production manager, Elmer Peterson , pressing foreman, and Cecil Adkinson, shipping foreman. Working under Neely are unit heads Max Culpepper, Ruby Burnett, and Bobby Turner. The pleadings, stipulations, con- cessions, and testimony in the record establish, and I find, that all persons mentioned in this paragraph are supervisors within the meaning of the Act. B. Chronology of events 1. In 1959 or 1960, an unknown labor organization-not the Union-made a distribution of organizing leaflets in Star City. At that time, one B. S. Hundley, a businessman, further discussed in items 4, 5, and 13 , below, made an "antiunion" talk at the plant. The instant record contains no further details. 2. On a date prior to June 29, 1961,3 Margie Hackney and Mary Witten, sisters em- ployed by Respondent, made inquiries at a union headquarters located in an adjoining county, asking that someone be sent to organize the employees of the Star City plant. The inquiries and request were forwarded to the offices of the Union at Little Rock. 2A complaint based on the charge in Case No. 26-CA-1160 alone had issued on Decem- ber 8 , 1961, and Respondent had filed a timely answer . The notice of hearing on the consolidated complaint (issued on March 12, 1962) did not permit the customary 10 days allowed for answer ; Respondent waived the 10-day requirement , and the answer to the consolidated complaint , as further amended at the hearing, was made orally on the record 3 Unless the contrary is indicated , all dates mentioned hereinafter are for the year 1961. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 29, John Vickers, union organizer, visited Star City and spoke with Hackney, Whitten and Merlene Deweese, a third sister also employed by Respondent. A "committee," consisting of the three sisters and Floyd Meeks, was established. There is no evidence, however, that any overt organizing activities were conducted prior to August 18. 3. During the morning of August 18, as Respondent's employees reported for work, John Vickers, Eugene Solon, union business agent and organizer, and Martin Berger, district counsel manager for the Union, distributed leaflets. The leaflets, to which were attached self-addressed bargaining authorization cards, presented arguments in favor of representation by the Union. 4. Later during the morning, Hundley, who was at all relevant times president of the Industrial Corporation, telephoned Harold Evans, plant manager, asking if he and a group of businessmen could visit the plant and speak to the employees about the "union situation." 4 Evans granted permission. Asked what time would be most convenient, Evans suggested 11: 15 a.m. At 11:15 a.m., Hundley arrived at the plant. He was accompanied by Harry Shannon, vice president of the Industrial Corporation, by Industrial Corporation di- rectors Fletcher Harvey, William Hundley [Hundley, Junior?], G. J. Smith, Sr., G. J. Smith, Jr., Fred Thornton, and Kelly Wright's and by Leon Conner, Lincoln County sheriff, William Shepherd, deputy sheriff, and Robert Cockman, city policeman. Hundley took his place at a microphone set up near the front of the plant. At the same time, all employees working that day were told to assemble 6 near the front of the plant. All left their work,7 including supervisors. Hundley spoke first. (He had a piece of paper in his hand, to which he occasionally referred.) He said, in substance,8 You all know who I am. We had this same trouble some years ago; we stopped it beforehand, and we're going to stop it again. . . If you out-of- towners don't like it here, go on home. . . Where unions come in, they break up homes, divide communities, and make enemies of friends. . . I'm not saying this plant will move, but companies have been known to move when organized labor comes in.... You have a "playhouse" here-why break it up? Some people don't like Mr. Evans. Some don't like me, and some don't like Jesus Christ. Your boss is a fine, upright man; he has a feeling for you and he would treat you right. The talk consumed 10 to 15 minutes. Shannon then spoke for 4 to 5 minutes. From a sheet of paper, he read off a number of foreign sounding names (unspecified in the record). He said that they were all Russians and union leaders and that unions only wanted to bring com- munism into the plant. Hundley closed the meeting-at approximately 11:35 a m.-saying that he was willing to reduce some of his rents 9 if any out-of-towners wanted to move into Star City. During the speeches, Production Manager Evans sat in his outer office, in which there was a loudspeaker and through the open door of which he could see the assem- bled employees. He testified that during this period, he was speaking to William Hundley about an air-conditioner the latter had installed in the plant, and that he heard none of B. S Hundley's talk and only part of Shannon's. This is so implau- sible under the circumstances that I do not credit the testimony, and I find that he heard both talks in full. 5. Later the same day, Vickers and Solon began to distribute a second leaflet to outgoing employees. The leaflet referred to the morning leaflet, contained argu- ments for unionization, and invited signed authorization cards and further inquiries. At 4:15 or 4:20 p.m., Lincoln County Deputy Sheriff Shepherd approached Solon, ' This finding is based upon the credited testimony of Evans. Although Evans, earlier, had testified that Hundley did not mention the subject to be taken up, I find more plausible his subsequent testimony that he "may have" asked what the discussion would be about and was given the above answer. 5 All of the foregoing are Star City businessmen. Fletcher Harvey is also town recorder. 8 The testimony is conflicting as to whether supervisors spread the word or whether the plant buzzer was used and, if the latter, who activated it. At any rate, Respondent concedes , and I find, that Respondent called the employees together. 7 The lunch period was scheduled to begin at 11 : 30 a.m. 8 The speech, which is not the subject of serious dispute, is constricted from the credited testimony of various witnesses. 8 Hundley owns and rents homes. BYRDS MANUFACTURING CORP. 151 then Vickers, and asked each of them to get into a nearby automobile in which Sheriff Conner was already seated. They complied. Vickers asked why their distri- bution had been interrupted and where they were being taken; Conner-or Shepherd- said they would find out "soon enough." They were taken three blocks to the sheriff's office, they were asked for and produced identification, and Conner left the room. In answer to their further queries, Shepherd referred to a city ordinance requiring the payment of $1,000 a day for organizing. Conner returned, accompanied by Hundley and Lynn Thomasson, mayor of Star City. Hundley-who acted as spokesman-asked where Vickers and Solon came from. They told him-Vickers said he was from West Helena, Arkansas; Solon, that he worked out of Poplar Bluffs, Missouri-but Hundley persisted in asking whether they weren't from New York, from Pennsylvania, and from the North. Next ensued a discussion of unions and unionism. Hundley asked what benefits a union could bring a small town. They gave answers-more spending money for the town's cash registers, for example-and there was a discussion of whether a union ever encouraged industry to come into a town. The discussion lasted for about 25 minutes. Finally, Hundley shook Solon's hand, and he said that "we" had decided that they could leave now if they promised not to return. When Solon said they could make no such promise, Hundley told Sheperd to "lock them up." A warrant was prepared and served upon them, they called counsel at Little Rock, Arkansas, and they were taken to the county jail. When a bondsman produced $1,000 bond, they were released after about 5 hours. (On August 26, Vickers and Solon were tried for violating Star City Ordinance 125A, an ordinance providing, in substance, that labor organizers pay the city $1,000 per day for the privilege of engaging in the business of organizing. Each was convicted and fined-the record is unclear whether the fine was $100 or $150; the convictions are currently being appealed.) 6. On or about August 21, Charles Weast, an employee, asked Bobby Turner, a supervisor, how the latter felt about the Union. Turner said the factory would close down if the Union came in.10 7. On the evening of September 13, Vickers met with 35 to 40 of Respondent's employees at the home of Margie Hackney.il After explaining to them the function of the Union, he passed around a paper on which those willing to serve on an organ- izing committee could sign. Eighteen persons affixed their signatures. Among those who signed were Deweese, Whitten, Craig, and Bobby McGriff. Vickers informed those present that he intended to notify Respondent and the National Labor Relations Board of the composition of the committee. 8. Next day-September 14-Clarence Neely, production manager, asked Bobby McGriff how he felt about the Union. McGriff said he was "neutral." After a repetition of the same question and answer, the conversation ended. On the next or second day following, Neeley asked McGriff the same question and was given the same answer 12 9. Meanwhile, on September 14, the employment of Deweese was terminated. (A more detailed discussion appears infra.) 10. A few days before September 19, at 3:30 p.m., Evans spoke to the assembled employees (He spoke from the front of the plant, at the microphone) He ex- plained a new bonus system for employees on production, and he also suggested that there were opportunities for the promotion of timeworkers. Before he closed, he mentioned that the plant now had one of the largest orders for dusters that it had had since he was there.i3 10 This finding is based upon Weast's credited testimony. Turner did not testify as to the incident, except to say that he did not remember whether any employees asked him questions about the Union during August, September, or October. I was favorably im- pressed by the demeanor of Weast, who is no longer employed by Respondent and who no longer lives in the area. u Margie Hackney is no longer employed by Respondent . Her separation is not an issue in this case. 12 In so finding, I credit McGriff's testimony. I note that Neely, in testifying, denied he had ever asked McGriff if McGriff were a union member. (Note the variance ) Al- tbough-as will be seen-I am not prepared to accept McGriff's testimony in every de- tail, he impressed me generally as being frank, unassuming, and unevasive Neely, on the other hand, was stiff and nervous , making due allowances for the tensions normally attendant upon being called to testify at a hearing of this sort, I believe that Neely was wrestling with his conscience as he testified. is He came to the plant in December 1960. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. On September 19, before their working hours, McGriff had a conversation with Hazel White, his supervisor.14 She accused him of attending a union meeting, an accusation which he denied. She said she knew who attended, and she named three persons, Mary Whitten, Lona Fay Craig, and one other. She then told him that Evans had a "list" and had told the supervisors who were at the meeting.15 12. Later the same day-September 19-McGriff was transferred. (More details infra.) 13. After 4 p.m. on that day, McGriff went to the auto sales premises of Shan- non (see item 4, above) to consummate a car trade agreed upon several days earlier. Told by the office girl there that Shannon was at the office of B. S. Hundley (which was also the office of the Industrial Corporation), McGriff went to the latter's office. There he found 10 to 12 officers of the industrial Corporation, including Hundley and Shannon, meeting with Plant Manager Evans. Told that Shannon planned soon to return to his own place of business, McGriff returned there to wait for him. Thirty to forty-five minutes later, Shannon joined McGriff. Because, Shannon said, he needed more money than originally discussed, the car-trade deal fell through Then, Shannon brought up the subject of unions. Fle asked what benefits the Union would bring to Lincoln County and to Star City, questions which McGriff attempted to answer Then he said that if the Union came in either the plant would close or Negroes would be working beside or taking the jobs of those now employed. 14. On September 20, the employment of Whitten, Craig, and McGriff was termin- ated. (A more detailed discussion appears infra.) 15. At 3:30 p.m. on September 22, Respondent was informed by telephone of the contents of a telegram sent by the Union. 7 he telegram read as follows: The International Ladies Garment Workers Union hereby informs you that a committee to organize the employees of the Byrds Manufacturing Corp., Star City, Arkansas, was formed the 13th of September 1961. Among the members of the committee are the following: Ellie A. Owen, Joyce Puckett, Margaret O. Block, Mary Whitten, Kathryn Lewis, Frankie Yarbrough, Bobby McGriff, Marvis West, Charles Weast, Lona Fay Craig, Merlene Deweese, Hershell Puckett, Leonard Peterson, Margie Hackney, Margie Rains. We respectfully urge compliance with the National Labor Relations Act during this campaign. Respectfully yours, Martin Berger, District Council Manager, John Vickers, representative. The names of three persons who had volunteered to serve on the committee (see item 7, above) were omitted pursuant to their expressed desires. 16. On September 22, at 3:40 p.m., Plant Manager Evans made a speech to the assembled employees . (He spoke from the front of the plant, at the microphone.) The speech follows: 16 It was not my intention to bring this matter up again. However, due to the many questions asked of me during the past two weeks, I find that the best ap- proach will be to present some of the questions and true answers before you as a group. Apparently, the Union has decided that the organization of Byrds Manu- facturing employees would result in a large amount of money for their coffers. In fact, initially, it could produce approximately $20,000. That would be only the beginning. Then would come monthly dues, and besides that, there are a 1* Thus I credit McGriff. White denied engaging in any such conversation, saying it was her habit to retire to the ladies' room until a minute or so before actual working time. As I stated at the hearing, I do not regard this as having great probative value in deter- mining what happened on September 19, 1961 Moreover, a pretrial statement made by White which was introduced into evidence casts doubt on her present testimony: in the statement , she says she does not remember talking to McGriff before work during the week in question, "although it is possible." Finally, I do not regard as having relevant bearing the fact that McGriff testified the conversation took place 15 or 20 minutes prior to starting time (7 a m.), whereas White's timecard showed she punched in at 6:49 a.m. on September 19; as far as I am concerned , the conversation may have taken place prior to White's punching in , or McGriff may be mistaken by 10 minutes 16 In my opinion, although White ended her testimony with a protestation to the con- trary, she and McGriff were friendly. I regard this conversation as having been a warn- ing to McGriff. In so finding, however, I do not rely on McGriff 's characterization of the conversation as such, a part of McGriff's testimony which was stricken. 19 My findings as to the contents of the speech are based upon both documentary and testimonial evidence. BYRDS MANUFACTURING CORP. 153 lot of other fees such as assessments and contributions. Unions also fine mem- bers who don't attend meetings or who violated any of the many Union rules. In a union, you would be assessed money to pay for strikes called in places you have never heard of. When they do not assess you, they are always after you for contributions for one thing or another. It is obvious that the Union in our industry is nothing but a collection agency. Now, let's look at some other things for a moment. (1) Steady employment. There is no law that requires the Company to open one day, one week, one month, or one year. (2) Breaks. The Company provides you with a 10-minute break in the morning and again is the afternoon. No law requires the Company to do this. (3) Snack bar. No law requires the Company to provide a facility as we have here. Water is all that the law requires and it does not have to be cooled. (4) Fair production quotas. Your quotas have their own built-in incentives. They are based on the average girl being able to earn 15 to 20 percent above her base. The Company is not required by law to give any incentives. They could set production by exceptional people and pay only the minimum wage. How- ever, our Company believes in the incentive system, to allow you (our em- ployees) to earn more than the minimum wage. The average in this plant runs well over $1.25 per hour. (5) Bonus arrangement. What other company in our industry provides a bonus to those to just make production? What other company will allow you to move from one job to another lust to give you a chance for an increased rate of bonus? This type thing costs double in the breaking-in. Your Company believes in giving opportunity to those who desire it. Now let's review some of the questions that have arisen during this Union campaign. QUESTION: Can the Union make the Company run its plant and furnish us a job? ANSWER: No. The Union has no power legally or otherwise to force the Company to operate its plant for one day, one week, one month, or one year. QUESTION: Can they get the things they have been promising'? ANSWER: The Company does not have to give in to any demand which is not for the good of the Company or which might not be a good business prac- tice and might be harmful to the Company. You know that anything that would hurt the Company would also hurt you. There is no way for the Union to force the Company to fulfill the promises that the Union may have made to you. QUESTION: If the Union gets in here, will we have to go out on a strike? ANSWER: I don't know, but if the Company does not agree to the things that the Union has been promising , the only way the Union can try to force the Company to agree is to make you go out on strike. It is easy for the Union to make all kinds of big promises to you, but it is something else for the Union to fulfill those promises. QUESTION: If the Union calls us out on strike, will we get paid while the strike is going on? ANSWER: No. If you don't work, you won't get paid. The Company won't pay your wages and neither will the Union. Sometimes unions pay $1 or ^2 to strikers who carry a picket sign for 10 or 12 hours, but very few people are allowed to picket, so most of the strikers get nothing. QUESTION: Can we collect unemployment compensation while out on a strike? ANSWER: No. Under most State laws you cannot collect unemployment com- pensation if you're out of work on a strike. QUESTION: If a union calls a strike, can I lose my job? ANSWER' Yes. Under the law, if the Union makes you strike to try and force the Company to agree to Union demands, the Company is free to replace the strikers. This means that after the strike is over you may no longer have a job, and the law does not force the Company to rehire you. QUESTION: If the Union gets in here, will the Company close down? ANSWER: Management controls whether or not the Company will operate or shut down. I think the Company will continue its operation as long as it can make a reasonable profit, but I do know that unions have caused so much trouble for other companies that they are sometimes forced to shut down. I've heard of a company which had 20 plants in Missouri , and after the plants were or- ganized all but one had closed or moved . I want to correct the claim by the Union that the plant can never be shut down under Federal law. There is no 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD law that makes a plant stay open, and if business reasons demand it the plant will of necessity shut down. QUESTION: Do I have to join the Union or sign a union card? ANSWER: No. You don't have to belong to the Union to keep your job here, and don't let anyone tell you that you do. The unions did not start this Company, nor has the Union ever given you a job or paid your wages, and the Union never will. QUESTION: Will I lose my job if I am against the Union? ANSWER: No. As long as you do your job properly and observe Company policies, you will keep your job. It is against the law for the Union to try to have an employee discharged for being against the Union. QUESTION: What if I signed a union card? ANSWER: It doesn't make any difference whether you signed a union card or went to union meetings, or even paid the union money. What you have signed or have told anyone doesn't obligate you in any way. The majority of the people agitating here are either below production and/or low-quality workers and a large portion are those who are no longer working here for the reasons stated above. Of the 14 employees on a committee to organize the factory, 7 are no longer with us. I would like to say at this point, we have gone this far without a union, and I don't think one is needed. We all enjoy the direct personal contact available now. Your actions of the past two weeks have proven you do appreciate the personal contact. I would like to mention the city ordinance having to do with union organiz- ing. The city passed this ordinance not for my benefit and not for the dis- advantage of anybody. Any individual accused of violating it has the oppor- tunity to present proof that he hasn't committed a crime or misdemeanor; if he proves this, he has the right to circulate or solicit in Star City. One last item: It is illegal for the Union to threaten you, or any member of your family, in any way. If any threats are made, the law protects you. Feel free to let us know of any threats or violence, and we will assist you in notifying the proper authorities. Again, let me express our desire to deal with you personally and individually, and without outside interference. Thank you for your kind attention. Good night. The speech ended at 4:10 p.m., and the employees were paid for 15 minutes' overtime. 17. On or about September 20, Supervisor Culpepper walked up to employee Charles Weast at the latter's machine. He asked how Weast felt about the Union, and Weast told him that it would bring benefits to the employees. Culpepper said the plant would close down if the Union came in. In answer to Weast's comment that Respondent could not lawfully do this, Culpepper said that it could.17 C. Independent interference, restraint, or coercion The complaint, as amended, alleges that Respondent, through supervisors and agents, engaged in specified acts in violation of Section 8(a)(1) of the Act. Paragraph 11 of the complaint, as amended, alleges that Respondent, through Hazel White on September 19, 1961, through Clarence Neely on September 13 and 14, 1961, and through Max Culpepper on September 26, interrogated employees as to their union membership, activities, and desires. The facts surrounding these allegations are set forth in the Chronology of events,18 items 11, 8, and 17, respec- tively. Clearly, such interrogation-and, in White's case, the conveyance of the impression of surveillance-exhibited the coercive thrust prohibited by the Act Paragraph numbered 12 of the complaint, as amended, alleges that Respondent, through Harold Evans on September 27, 1961, through Max Culpepper on Septem- ber 27, 1961, and through Bobby Turner on August 21, 1961, warned its employees that the plant would "move" if the Union came in. (A comparison of the words of the allegation with the proffered proof demonstrates that it was the intention of the General Counsel to prove threats to "move out" or "close" as well as to "move," and I shall so treat the allegation. There is no prejudicial variance, and, at any 17 This is in accordance with Weast's testimony. Culpepper flatly denies that the con- versation took place On another point-whether, prior to September 22, any employee had spoken to him about the Union-I find Culpepper's answer (negative) to be highly implausible My observation of the two persuades me that Weast should be believed. is Hereinafter, reference to that section will take the form of the abbreviation "Chron." followed by the Item number or numbers. BYRDS MANUFACTURING CORP. 155 rate, the matter was fully litigated.) The allegation, insofar as it concerns Culpepper and Turner, is amply supported by the facts found in Chron. 17 and 6, respectively; they each said that the plant would close if the Union came in, in clear violation of the Act. The allegation with respect to Evans deserves more extended treatment. Accord- ing to my factual findings in this respect (they appear at Chron. 16), Evans told the assembled employees, among other things, "There is no law that requires the Com- pany to open one day, one week, one month, or one year," "The Union has no power legally or otherwise to force the Company to operate its plant for one day, one week, one month, or one year," and "Management controls whether or not the Company will operate or shut down. 1 think the Company will continue its operation as long as it can make a reasonable profit, but I do know that unions have caused so much trouble for other companies that they are sometimes forced to shut down. I've heard of a company which had 20 plants in Missouri, and after the plants were organized all but one had closed or moved. I want to correct a claim by the Union that the plant can never be shut down under Federal law. There is no law that makes a plant stay open , and if business reasons demand it the plant will of necessity shut down." The intended meaning and the intended effect of these words must be viewed in the light of all the circumstances. One of the reasons for his making the speech, Evans testified, was the fact that he had received so many queries from employees, one among them being whether the plant would shut down if the Union came in; in my opinion, the statements quoted above would be hardly likely to quiet the fears of employees who asked this question. Under all the circumstances, in- cluding the unfair labor practices elsewhere herein found to have been committed by Respondent, I regard the above remarks as a thinly veiled threat of a shutdown should the Union's organizational efforts succeed.is Paragraph numbered 9 of the complaint alleges that Respondent, through B. S. Hundley on August 18, 1961, and through Harry Shannon on September 19, 1961, warned employees that the plant would move if the Union came in. The facts surrounding the Hundley allegation appear in Chron. 4. Two ques- tions are involved- (1) whether Respondent is responsible for Hundley's conduct, and (2) whether the conduct constituted interference with restraint or coercion of employees in their exercise of Section 7 rights. 1 he responsibility of an employer for the conduct of an outsider is established only when agency is established The outsider must be acting under the direction or control of the employer or, if the conduct is originally unauthorized, it must be ratified expressly or impliedly. It is not sufficient (to establish the employer's responsibility) to show that the employer enjoys the benefits of the outsider's actions 20 In the instant case, Hundley asked for permission to speak to the employees, notifying Respondent of the subject. Respondent granted permission, suggested the time (during working hours), furnished the facilities (including a sound system), assembled the employees (including supervisors), and was or became fully aware of the statements made. In a subsequent speech,21 Respondent (through Evans) spoke on the same subject, not only failing to disavow Hundley's remarks but speaking in the same vein. Under the circumstances I find the statements of Hundley to be attributable to Respondent 22 For reasons similar to those applicable to the remarks made by Evans on Sep- tember 22 (see above), I find that Hundley's remarks of August 18, attributable to Respondent, tended to coerce Respondent's employees. If anything, his words were more pointed than Evans'. He said that the "trouble" had been stopped before and would be stopped again; said that unions break up homes, divide communities, and make enemies of friends; and, suggesting that plants have been known to move out when unions move in, questioned why they wanted to "break up" their "playhouse." A threat of reprisal is clearly implied. 19 See Custom-Pak, Inc, 126 NLRB 242, 248 20 N L R B v Cherokee Hosiery Mills, 196 F 2d 286, 290 (C A. 5). 21 The speech of September 22 as See A. M Andrews Co of Oregon, et al, 112 NLRB 626; Babcock & Wilcox Company, 108 NLRB 1622, 1623; 8 D Cohoon, et al, d/b/a S D Cohoon & Son, 101 NLRB 966; Southland Jfannfacturing Company, 94 NLRB 813, 814; H & H Manufacturing Company, Inc, 87 NLRB 1373, 1383; and Reliance Manufacturing Company V. N.L R B, 125 F 2d 311, 317 (CA 7) Cf Star-Brite Industries Inc, 127 NLRB 1008, 1012; Monarch Rubber Co., Inc, 121 NLRB 81 ; Livingston Shirt Corp., 107 NLRB 400; Goodyear Clearwater Mill, No 2, 102 NLRB 1329, 1348 ; and N L.R B. v. Armco Drainage & Metal Products Inc., 220 F. 2d 573, 581 (C.A. 6). 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As for the second of the two allegations-that Harry Shannon, for Respondent, threatened that the plant would move if the Union came in-I find no evidence, ex- pressed or implied, that he was acting for Respondent. (The reference is to Shan- non's conversation with McGriff, fully described in Chron. 13.) To say that Re- spondent's acquiescence in, and ratification of, Hundley's speech of August 18 can be found in the surrounding circumstances is one thing; to extend the inference to Shannon's remarks of September 19 is quite another. In the course of their dis- cussions arising from an automobile transaction, Shannon made certain remarks to McGriff about the Union and what effect he believed its advent would have upon Respondent's employees. As far as the record reveals, Respondent did not authorize, did not acquiesce in, did not ratify, and did not know of the remarks. To find otherwise would be to stretch the cloak of authority too far. I do not find Respondent responsible for Shannon's remarks of September 19, and I shall recommend dismissal of this allegation. As its remaining 8(a) (1) allegation, the complaint, in paragraph numbered 10, imputes to Respondent, through B. S. Hundley, the instigation and procurement of and cooperation in the arrest and prosecution of union representatives on August 18, 1961. Giving due consideration to the surrounding facts and circumstances-my findings are recited at Chron. 13-I am unable to find an agency relationship be- tween Respondent and Hundley with respect to the incident. Granted that I have found such a relationship to exist earlier on the same day (see above), I do not believe that Hundley's authority, real or apparent, extends to his part in the arrests. Here, we have the enforcement of a city ordinance,23 in which Hundley played a major part. As far as the instant record reveals, Respondent did not authorize, did not acquiesce in, did not ratify the action, and (I find) did not know of the arrests until after they occurred. I draw no inference from Evans' September 22 allusion to the ordinance; 24 even then, he expressed neither approval nor disapproval of the arrests. I find the allegation to be without support in the record, and I shall recom- mend its dismissal.25 D. The terminations of employment 1. Merlene Deweese Merlene Deweese was hired by Respondent in April 1957. She operated a sew- ing machine, employed on the felling line 26 Prior to the events here in question, it was conceded and I find, she was considered a "good operator." When Harold Evans became plant manager in December 1960, he made a produc- tion change in the shirt line. Prior to his coming, the sleevers 27 were separated from the fellers by an aisle. As the sleevers finished their work, bundle boys would gather their product and distribute it among the fellers. After the change was made, each shirt, as it left a sleever, slid down a trough to the feet of a feller, who would then perform her operation on it. The change had at least one effect: it tied the produc- tion of the feller to "her" sleever, except to the extent that, to take up any slack, the feller was given some of the "extra" bundles which were normally available. In addition, at or about the middle of June, Deweese was switched from felling "open" sport shirts to felling "pullover" blouses and "pullover" boys' shirts. Credi- ble evidence in the record indicates, and I find, that the sleeving operation and, to a lesser extent, the felling operation on a pullover blouse or shirt take longer than the same operation on an open blouse or shirt. This means, among other things, that the feller dependent upon a sleever's production must resort more ex- tensively to the "extra" bundles in order to fill the gap between her sleever's pro- duction and her own productability. And this means, for the feller, more frequent changes of thread to accommodate her machine to the colors of the extra bundles and the shirts as they come from her sleever. I find that, for the reasons indicated above, Deweese's production was less dur- ing the period from June 15 to September 14 than it had been prior to that time.28 I find also that she produced at a faster rate than that of the sleever who kept her supplied. I find further that her production fluctuated upward and down- 211 do not feel called upon to consider its constitutionality. u See Chron. 16. n See NLRB v Bibb Manufacturing Company, 188 F 2d 825 (C.A 5), and N L.R B. v. Russell Mfg. Co., Inc, 187 F. 2d 296 (C.A. 5). 28 Felling a shirt involves sewing the seam on the underside of the arm up to the armpit and down the body to the tail. v Those who attached sleeves to bodies of shirts. 28 No detailed production records of fellers were introduced into evidence. BYRDS MANUFACTURING CORP. 157 ward, a circumstance mainly attributable to the fluctuating necessity for changing -thread. Finally, I find that her production exceeded that of any of the four or five girls felling pullovers .29 During this period, I find, Evans was concerned about low production . At least in June and again in August he spoke to the fellers , seeking causes and demanding improvement . His adjurations were addressed to the group and not to Deweese individually. She had never-prior to the day of her discharge-been individually criticized for her production 30 On September 14-the day after the union meeting-Deweese 's supervisor, Neely, timed her with a stopwatch . Projecting her actual time on a number of shirts and making a 20-percent allowance for breaks and untying bundles, he estimated that she should be able to "make production ." 31 At 3 : 30 p.m., Neely asked Deweese why she had produced only 48 dozen so far that day. Deweese told Neely that she had no work, and he told her to report at the office at 4 o'clock (quitting time). At 4 o'clock, she went to the office , telling Evans that Neely had sent her. He asked if she knew why she was there; she said she did not . He told her she had been timed and was not producing enough . She said she was producing more than the others, and he said he was talking about her, not about the others . She said she was doing as well as she could do. He said that if she put forth the effort she could do better and could make more money, to which she replied she was doing all she could do. She explained why she had had no work for a period during the day-she had finished work sent her by her sleever and there was no thread available of the color necessary for the extra blouses on the rack 32 On the basis of her repeated statements that she could do no better, Evans decided, allegedly, to discharge her for her attitude with respect to production.33 I have carefully considered all the circumstances surrounding Deweese's dis- charge and the arguments of the parties in connection therewith. Taking note of the fact that Deweese had the highest production record in her department; of the fact that she had never been warned about her individual performance; of her part in the union movement, as noted earlier and discussed below ; and of the tim- ing of the discharge in relation to the union campaign , as further discussed below-I find that Respondent's assigned reason for Deweese's discharge lacks plausibility; I find that it was not the actual reason and was, in fact, a pretext.34 2. Mary Whitten Mary Whitten was first hired by Respondent in October 1956. Until April 1961, she worked as a joiner on shirts, i.e., she sewed the backs to the fronts. From April 29Respondent's brief sees significance in General Counsel's failure to introduce produc- tion records which Respondent had made available during the Government's investigation of these charges, and, by implication, asks me therefore to make inferences unfavorable to Deweese . I am aware only that Mary Whitten's records were made available, and these were introduced into evidence. Besides, all production records have been and are in the possession of Respondent. I shall make no inferences, either way, because of their nonintroduction. is In this respect I credit Deweese as against Neely, on whose reliability as a witness I have already commented. ffi The felling production quota at that time was 62 dozen per day. As indicated, no one was making production In January 1962, the quota was changed to 55. 32 Although Evans testified he "was sure there was thread" he made no effort to check this. The credible testimony establishes, and I find, that there was no thread of the proper color. ss Deweese testified that "attitude" was not mentioned. I find this merely to be a difference in interpretation. All that Evans said suggests that he was telling her she was being discharged for her low production in view of her experience-another way of saying "attitude." Respondent urges, in its defense, that (1) others beside Deweese were laid off at or about the same time, and (2) production among the remaining fellers increased after Deweese left. I have fully considered these factors As for (1), although their cases were not fully litigated, it appears that the others (excluding Craig and Whitten) were assignedly laid off for poor production rather than poor attitude; I do not find their cases comparable. As for (2), since Deweese was the best producer among the fellers, it was to be expected that the others would, with experience, approach her plateau of pro- duction ; and there is no reason to believe that, with more experience and constant im- provement of procedures, Deweese herself would not have bettered her production had she not been discharged. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to July 1961 , she was on layoff status ; 35 in July she was rehired and was assigned to sleeve-setting in the duster department ; she sewed the fronts of gowns and pajamas to the shoulders . Like Deweese, prior to the instant occurrences, she was considered (Respondent concedes and I find ) a good operator ; Evans described her as an "excellent joiner" and a "fine lady" who had "produced and done good work." Bobby Turner, unit head, was in charge of the duster department . For some time he had taken steps to improve production among the sleeve setters. Turner had spoken to each of the sleeve setters, including Whitten, and (although the employees were probably unaware of the fact) he and the plant engineer had made time studies of the sleeve setters. On September 19, 1961 , at approximately 2 p.m., Turner asked Whitten how many dozens she had produced thus far that day. When she said. "45 ," he told her he wanted 70 dozen by 4 p.m. She told him this was impossible-a fact of which, I find, he was well aware-but he made no comment. The production records show that she finished 63 dozen that day. Next day, at 3:50 p.m., Whitten, along with another employee, Norma Adair, was told to see Turner . They went to Turner, who said he was laying them off "because of production ." When Whitten protested that she was doing as well as the rest , he told her there was no use explaining- she and Adair should get their cards and go to Evans ' office. They went there, and were told by Evans that they were being let go because their production was too low for their experience .36 He said he would be glad to rehire Whitten on shirts-her old job-if an opening occurred. I have carefully considered the production records of the sleeve setters which were introduced into evidence, and I make the following findings thereon. No one ever "made production," 70 dozen. Whitten's average daily production since August 7 had been 48-plus dozen ; the average daily productions of the five other sleeve setters employed on September 20 were as follows: Jewel Allums, 48, Norma Adair, 44- plus, Betsy Skinner, 43-plus, Louise Crabb, 37-plus, and Ann Owens, 32-plus 37 During the month of September , Whitten's average daily production was 5'7-minus; that of Allums, with whom she was unfavorably compared at the hearing, was 48-minus. I find that Whitten was not laid off for the reasons assigned by Respondent. She had an excellent reputation; she had an excellent production record, both on her prior operation and her present one. Such individual warnings as had been re- ceived by her were administered only in the context of individual warnings to each and every sleeve setter ; and her record compared quite favorably with others who were not laid off. In view of her work-performance record, of the timing of her discharge in relation to the union campaign and her own part therein (both of which are discussed below ), and of Respondent's union animus as displayed by the unfair labor practices found, supra, I find that "attitude with respect to produc- tion" was not the real reason for her termination. 3. Lona Fay Craig Lona Fay Craig was first employed by Respondent in August 1956. For 5 years, she worked on the second stitch line where she quite often exceeded production requirements; she was considered a good worker and was never reprimanded for her performance On August 30, 1961, she was transferred to another job, hemstitching pockets on men's dress shirts 3s She was laid off on September 20 by Clarence Neely because she was "not getting production." During her 3 weeks on the hemstitching job, Craig, except for a period when the hemstitchers had to perform the extra chores of stacking their own work and remov- ing paper from the pockets, steadily improved her production. She had never been spoken to about low production or improper attitude. On the day before her dis- charge, working 1 hour overtime, she produced 180 dozen. (Production was 200.) On the day of her discharge, late in the day, Neely asked her how many dozen she ss The layoff Is not in Issue In this proceeding ra I reject Whitten's testimony that "attitude" was not mentioned until the day of the hearing. Hers was a misinterpretation of what was said See footnote 33, supra 37 Owens was subsequently laid off, on September 25, for "low production." Her termi- nation is not an issue here, except insofar as it was urged In support of the plausibility of the reason assigned for Whitten's layoff. I find that it had no bearing one way or another: (1) it was based on a different assigned reason, and (2) It occurred 5 days later. OsAlthough Craig felt she should not have been selected for transfer, there Is no con- tention that her transfer was discriminatorily motivated. The second stitch line was cut from 18 to 16 employees and, subsequently, to 7. BYRDS MANUFACTURING CORP. 159 had done. When she said she had done 174, he compared this unfavorably with her previous day's production. She pointed out that, on that day, she had worked an extra hour, but he said he wanted to see her in his office at 4 p.m. At that time he told her she was being laid off for not achieving production. When she protested that she had steadily increased her production, he said she had been transferred to "the easiest job here" and should have been making production before this. She then received her check. With respect to whether this was a "simple" job, as testified to by Neely, I make certain findings based upon the uncontroverted testimony of Craig. The operator turns the facing of the pocket down and then sews precisely to the point of the pocket: one stitch too few constitutes a defect and one stitch too many necessitates ripping out and redoing the entire seam. The machine must be stopped at the right moment; the newcomer to the work stops it by hand, the experienced worker learns to stop it by foot pedal. Under these circumstances, considering that "making production" involves racing against time, I find that hemstitching pockets, to the newcomer on the operation, is a difficult job. I find further that, for her experience on the job, Craig was, and Neely knew she was, performing satisfactorily. Although he testified that girls inexperienced on this operation could make production in 2 or 3 weeks, he was unable to name any such persons. Given names in order to refresh his recollection, he could not remember if those named had achieved this accomplishment 3s I find that, under the circumstances, the reason assigned by Respondent for Lona Fay Craig's discharge lacks plausibility and is not the true reason for discharge. 3. Bobby Louis McGriff Bobby Louis McGriff was employed by Respondent in June 1958 as a bundle boy on the cuff line. After 2 months, he went into the military service. On his dis- charge from the service, he was rehired by Respondent in July 1961 as a shirt stacker on the joining line under the immediate supervision of Hazel White. In this work, he was never criticized for his performance. On September 19, 1961, Clarence Neely told McGriff he was promoting him- he was going to move him to the duster department. At 2 p.m., he brought a (female) replacement for McGriff. At that time, White asked that McGriff not be moved.40 Nevertheless, Neely took McGriff to the duster department where, under the tutelage of the person he was to replace there, he began to learn the new operation-keeping yoke setters, joiners , and sleeve setters supplied with material on which to work 4i During the afternoon of September 19, I find, Bobby Turner, McGriff's new supervisor, complained several times that the actual work in which McGriff was being trained was being done by McGriff's predecessor/instructor rather than by McGriff; he suggested that the instructor confine his activities to instruction and that McGriff do the work. Next morning, the predecessor/instructor was removed, and McGriff was left to do the work alone. At one point during the day, Turner complained that a girl being supplied by McGriff had been out of work for 15 minutes; however, the girl had not been waiting more than 2 or 3 minutes. Just before the buzzer sounded at 4 p.m., Turner told McGriff he could not use him 42 He took McGriff back to Neely and told Neely that he could not use McGriff, and he asked if Neely could use him. Neely said that he had nothing for McGriff since McGriff's old job had now been filled, and Supervisor Culpepper, who was present, said he too had nothing for McGriff. McGriff asked to see Evans, and Turner accompanied him to the office. I find that McGriff at this point was angry. When he went into Evans' office- Turner remained outside the door-he said he had been given a "dirty deal." When Evans asked why, McGriff told him of the previous day's transfer and today's out- 89 Besides Craig, only one full-time and one part -time worker hemstitched pockets. No comparative records of production are in the record. 40 Although White testified that McGrIff "wasn't too good a worker ," she testified earlier that his work was "suitable " and later that he was able to do his work "satisfactorily." Contrary to her testimony , I credit Neely , who said she told him McGriff was a good worker. ( It appears that the friendship noted in footnote 15, above, had ended by the date of the hearing, at least on White's part.) 41 Although this involved no change in pay, I find that the transfer was considered both by management and by McGriff to be an "advancement " There is no contention that the transfer was discriminatorily motivated. 42 In so finding, I reject as implausible McGriff's first testimony that Turner said he was "laying him off." (Later, he conceded that layoff was not mentioned.) 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come. Evans said, in effect, that he would not overrule his supervisors ' operational decisions but that he had a night production job available if McGriff was interested. McGnff expressed no interest, instead demanding his pay. At this point, the subject of the Union was raised by Evans. He said he knew the union sympathizers in the factory and that only 8 out of 15 were left. At the same time, he pulled a sheet of paper bearing penciled notations from his desk. McGriff asked to see it, but Evans laughed and put it back in the drawer.43 As earlier indicated , McGriff expressed a lack of interest in the night production job Evans said was available . On this record, the General Counsel asks me to find that McGriff was discharged, while Respondent asks me to find that he voluntarily quit.44 A determination of the question requires allusion to the entire picture. McGriff had been "promoted" from a job which he had been performing well, being replaced there by a transferee from elsewhere . His new job "had more re- sponsibility" 45 and involved a multiplicity of duties. I find, under the circum- stances, that he was not given a sufficient trial on the new job . But assuming with- out finding that he was believed unable to perform the new duties proficiently, he would (by an employer motivated by lawful business reasons ) have been sent back to his old job, even if it meant retransferring his replacement. At the point he was brought back to Neely by Turner, McGriff had found him- self without any work whatsoever . Neely, Turner, and Culpepper each had dis- claimed any need for his services. Had he not asked to see Evans , there would have been no "offer" of night production work, and McGriff would have been in layoff status . In my opinion, he was justifiably perturbed when he found himself out of the new job and barred from the old; and he was warranted in believing, par- ticularly in view of Evans' statements about the fate of those active in the Union, that the night production job, if there was one,46 would be no less ephemeral than the "promotion." Whether it be called an actual discharge or a construc- tive discharge, I find that his termination was not a voluntary one. Further, I find that this involuntary termination was brought about by Respondent for reasons un- connected with McGriff's work. 4. The four terminations-discussion I have found that the reasons assigned for the discharges of Deweese , Whitten, and Craig were not the actual reasons for Respondent 's actions; and I have found that McGriff's employment was involuntarily terminated for reasons unconnected with his work. I have reached this conclusion in each case , standing alone, for reasons earlier recited . Furthermore, I am persuaded that my findings in this respect are bolstered by an examination of each of the terminations as it affects or is affected by the others, and by the context in which all of them occurred . For, I am con- vinced , there is a common thread running through all of the cases. During the 35 days preceding Evans' speech of September 22, 1961, the credible testimony establishes and I find, the main topic of conversation in the plant was the 43 In so finding, I credit McGriff , who, as I have indicated, impressed me as being trust- worthy to the point of being ingenuous ( For example , he frankly brought out what should have appeared to him to be contrary to his interest-that Turner had complained about his work that day, and that Evans, in the instant conversation, spoke of the avail- ability of another job ) Evans, on the other hand, weighed his words in testifying; be said , "I didn't pull out a list because there was no list" This , in my opinion, constitutes an "overnarrow" denial ; I do not, in making this finding, necessarily find that there was a list-I only find that Evans created the appearance of its existence. Respondent ques- tions that it makes sense for Evans to have produced the "list" under the circumstances ; in my opinion , it is no less plausible than his having permitted outsiders to voice threats of a closedown to his employees , or than his having threatened , in an open speech, the possible closing of the plant. 44 On this issue, I rejected decisions of an appeals referee and of a board of review in connection with a claim for unemployment compensation made by McGriff before the Arkansas Employment Security Division , and I indicated to the parties that I would re- ject a tape recording of those proceedings which did not purport to be an official tran- script. Having given further thought to those rulings , I reaffirm them In the absence of my being referred to specific statements made there by witnesses now before me which would cast doubt on their testimony , I do not see what value the documents ( or tape) In question would have in this proceeding. 15 This is based on the credited testimony of Supervisor Turner. Qe On the uncontradicted testimony of Evans, I find that there was such an opening and that it was subsequently filled. BYRDS MANUFACTURING CORP. 161 Union and its organizational campaign. The leaflet distribution, the Industrial Corporation speeches, and the arrests of August 18 were big news in a small com- munity.47 The meeting of September 13 was attended by 35 to 40 of Respondent's employees. Employees spoke to each other and, as I have found, supervisors spoke to nonsupervisors about the Union and its possible aftereffects. On September 22, Plant Manager Evans felt that the subject had built up so much interest that it warranted a speech from him, running into overtime. Whitten was involved in the original contact with the Union; she and Deweese were on the original union "committee" of four employees. These two and Craig and McGriff were among those who attended the meeting of September 13 and were among the 18 who publicly volunteered to serve on an organizing committee. Respondent denies knowledge of their, or anyone else's, union activity prior to September 22, the date of the receipt of a union telegram listing organizing committee. Knowledge of union activity may, and often of necessity must, be based upon reasonable inference drawn from circumstantial evidence.48 In view of the size and nature of the community in relation to the key position and size of the plant, the intensity of feeling on the Union and unionism, the extent of the conversations on the subject which took place during the period in question, the fact that the number of those who openly espoused the Union cause was so small in relation to the total number of employees, the actual activities of Deweese, Whitten, Craig, and McGriff and the timing and coincidence of Respondent's action in terminating their employ- ment, I find that Respondent was aware at the times it discharged each of them, of the union activities of Deweese, Whitten, Craig, and McGriff.49 I note, in this con- nection, that at least one supervisor, Hazel White, was aware 50 of the attendance at the union meeting of at least Whitten, Craig, McGriff and one other (see Chron. 11), and that she and other supervisors were told by Evans who was at the meeting51 Upon the entire record, and on the basis of what I am convinced is a fair pre- ponderance of credible evidence, taking into consideration my rejection of the reasons assigned by Respondent, Respondent's union animus as displayed by its unfair labor practices heretofore found, Respondent's awareness of union activity as found by me, and the timing of the actions, I conclude that Respondent's underlying motiva- tion in terminating the employment of Deweese, Whitten, Craig, and McGriff was their activity on behalf of the Union; that by discharging Deweese on September 14, 1961, by discharging Whitten and Craig on September 20, 1961, and by terminating the employment of Bobby Louis McGriff on September 20, 1961, and refusing to reinstate them,52 Respondent discriminated in regard to hire and tenure of employ- " All were duly noted In the local newspaper. 45 See, e g, N.L R B . v. Link-Belt Company, 311 U S 584 , 602; F W Woolworth Com- pany v N L R B , 121 F. 2d 658, 660 (C.A. 2) , Hickory Chair Manufacturing Company v. N L R B ., 131 F . 2d 849 , 850 (C A . 4) ; N L R B v. Angwell Curtain Company, Inc, 192 F. 2d 899 , 903 (C A 7 ) ; N L R B v. C W Radcliffe , and W . W. Maneke d/b/a Homedale Tractor it Equipment Company , 211 F 2d 309 , 315 (C.A. 9) 49 In so finding, I give no weight to the notification by the Union itself, which notifica- tion postdated the discharges Nor do I give any weight to blood or marriage relation- ships between any of the employees 50 But I stress that, although knowledge of union activities acquired by a supervisor is chargeable to an employer (Montgomery Ward & Company, Incorporated, 115 NLRB 645, 647), I do not rely exclusively on this factor si I find that the "list" to which she referred was not necessarily a complete one-i e, did not necessarily contain the names of all active persons (As I have found , Evans did not necessarily display a list to McGriff on September 20, he merely showed a piece of paper ) But I find , from this record , that management was aware of the part played by some if not all of the active employees . ( In so finding , I do not adopt the General Counsel 's contention that weight should be given Evans' mentioning, in his September 22 speech, that 7 of the 14 on the organizing committee were no longer with Respondent. He argues that such knowledge could not have been obtained merely from the Union's telegram received 5 minutes earlier , since the speech must have taken hours to prepare I find that this reference was not In the speech as originally prepared ; it was inserted in the speech upon receipt of the telegram.) s2 At the hearing, the General Counsel urged that paragraph numbered 14 of the com- plaint , alleging a continued failure and refusal to reemploy the alleged discrim Ina tees, was more than a pro forma allegation arising out of the discharges , at least insofar as it concerned Whitten Subsequent to Whitten 's discharge, another person was placed in an opening in the joining department , the General Counsel contended that, independently of the legality of her discharge , Whitten should have been called to fill this position I re- ject this contention If Whitten was lawfully discharged, the same reasons therefor 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, and that, thereby, Respondent not only interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, but discouraged membership in the Union, or any other labor organization, in violation of Section 8(a) (1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substan- tial 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 certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent discriminated with respect to the hire and tenure of employment of Merlene Deweese, Mary Whitten, Lona Fay Craig, and Bobby Louis McGriff, I shall recommend that Respondent offer them full and immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by them because of the discrimination, by payment to each of them of a sum of money equal to the amount he would have earned from the date of his discharge to the date of Respondent's offer of reinstatement, less his net earnings during said period. Backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294.53 As the unfair labor practices committed by the Respondent are of a character striking at the roots of employee rights safeguarded by the Act, it will also be recom- mended that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act Upon the basis of the foregoing factual findings and conclusions, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of Merlene Deweese, Mary Whitten, Lona Fay Craig, and Bobby Louis McGriff because of their activity on behalf of the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act 4. By the foregoing conduct, by interrogating employees as to their interest in and activities on behalf of the Union, and by threatening to close down or to move the Star City plant if the Union's organizing campaign should be successful, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a) (1) thereof. 5. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. 6. Except for the above, Respondent has not engaged in unfair labor practices as alleged in the complaint herein. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Byrds Manufacturing Corp., of Star City, Arkansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: would be applicable to a subsequent hiring. Her case, along with that of the others, stands or falls on the lawfulness of the original discharge. 53 General Counsel, in an appendix to his brief, urges that the Recommended Order in- clude an award of interest on backpay. I believe that whether or not interest should be included in baclcpay awards Is a matter to be decided by the Board as a matter of overall policy. To date, no Board order has awarded interest in a situation comparable to this I shall, therefore, make no provision for interest. BYRDS MANUFACTURING CORP. 163 (a) Discouraging membership in International Ladies Garment Workers Union, AFL-CIO, or any other labor organization, by discriminating in regard to their hire, tenure, or other conditions of employment. (b) Interrogating employees as to their interest in or activities on behalf of a labor organization. (c) Threatening to close down or to move the Star City, Arkansas, plant to dis- courage interest in or activities on behalf of a labor organization. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Merlene Deweese, Mary Whitten, Lona Fay Craig, and Bobby Louis McGriff immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of earnings suffered by reason of the discrimination against him, in the manner set forth in the section above 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, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right to reinstatement. (c) Post at its plant at Star City, Arkansas, copies of the attached notice marked "Appendix." 54 Copies of such notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by an authorized representative of Respondent, be posted 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 such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-sixth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith.55 It is further recommended that the complaint be dismissed insofar as it alleges that Respondent, through Harry Shannon on September 19, 1961, warned employees that the plant would move if a union came in; and, through B. S. Hundley on Au- gust 18, 1961, instigated, procured, and cooperated in the arrest of certain union representatives. If this Recommended Order Is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pursuant to a Decision and Order." ae If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in International Ladies Garment Work- ers Union, AFL-CIO, or any other labor organization, by discriminating as to the hire, tenure, or any other term or condition of employment of any of our employees. WE WILL NOT, through supervisors or other agents, threaten that our plant may shut down or move if a union comes into the plant. WE WILL NOT ask employees about their interest in or activities on behalf of any labor organization. 681-492-63-vof 140-12 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to organize, to form, join, or assist a labor organization, to bargain collectively through a bargaining agent chosen by them- selves, to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any such activities. WE WILL offer Merlene Deweese, Mary Whitten, Lona Fay Craig, and Bobby Louis McGriff their former or substantially equivalent jobs, without prejudice to seniority or other employment rights and privileges, and pay each of them for any loss suffered because of our discrimination against them. BYRDs MANUFACTURING CORP., 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. Employees may communicate directly with the Board's Regional Office, Seventh Floor, Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone No. Jackson 7-5451, if they have any question concerning this notice or compliance with its provisions. Teamsters, Chauffeurs & Helpers Union, Local 279 (William S. Wilson d/b/a Wilson Teaming Company ) and Elizabeth Love. Case No. 13-CC-9273. December 18, 1962 DECISION AND ORDER On January 24, 1962, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices and recom- mending that the complaint be dismissed in its entirety , as set forth in the attached Intermediate Report. Thereafter, the General Coun- sel filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its powers in connection with this case to a three -member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent consistent with the Decision and Order herein. Contrary to the conclusion of the Trial Examiner , we find that Teamsters, Chauffeurs & Helpers Union, Local 279, hereinafter called Respondent, violated Section 8(b) (4) (i) and (ii) ( B) by inducing in- dividuals employed by Cole Distributing Company, hereinafter called Cole, and by Morehouse and Wells, hereinafter called Morehouse, LO engage in a strike, and by threatening Cole and Morehouse , with an 140 NLRB No. 12.