Brownwood Manufacturing Co.

BROWNWOOD MANUFACTURING COMPANY 1027 unrepresented clerical employees at central engineering, Highland Park. Furthermore, these employees may not be granted an election solely because they were formerly represented as part of another unit which has now been reconstituted or dissolved. [The Board dismissed the Petitioner's motion to clarify its certi- fication in Case No. 7-R-1666.] Brownwood Manufacturing Company and Amalgamated Cloth- ing Workers of America, AFL-CIO. Case No. 16-CA-1663. Febrwarj 4, 1963 DECISION AND ORDER On October 29, 1962, Trial Examiner Fannie M. Boyls issued her Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in a certain unfair labor practice, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel and the Charging Party filed excep- tions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations with the following exception. We do not agree with the Trial Examiner's finding that the Re- spondent, through Supervisor Heffington, did not unlawfully inter- rogate employee Haynes. As the Trial Examiner herself found, Hef- fington repeatedly interrogated Haynes about her union activity in conversations initiated by Heffington, and this interrogation took place during a period when Heffington was unlawfully threatening employees, Haynes included. In the circumstances, we hold that the interrogation of Haynes by Supervisor Heffington was a violation of Section 8(a) (1) of the Act. 140 NLRB No. 91. 681-492-63-vol. 140-66 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following additions and modifications: Renumber paragraph 1(b) to appear as 1(c) and insert the follow- ing as paragraph 1(b) : "Interrogating its employees concerning their union membership, activities, or desires in a manner constituting inter- ference, restraint, or coercion in violation of Section 8(a) (1) of the Act." Add the following to the notice, following the first paragraph therein: WE WILL NOT interrogate our employees concerning their union membership, activities, or desires in a manner constituting inter- ference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act other than those found herein. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed on May 25, 1962, a complaint was issued on July 13, 1962, alleging that Respondent, Brownwood Manufacturing Company, had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act. Respondent filed an answer, denying that it had en- gaged in any of the unfair labor practices alleged. A hearing, at which all parties were represented, was held before Trial Examiner Fannie M. Boyls in Brownwood, Texas, on August 29 and 30, 1962. Thereafter, counsel for the General Counsel and for Respondent filed briefs, which I have duly considered. Upon the entire record in this case and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation having its principal office and place of business in Brownwood, Texas, where it is engaged in the manufacture, sale, and distribution of clothing and related products. During the calendar year 1961, which is a rep- resentative year, Respondent manufactured and shipped from its plant in Brown- wood to points outside Texas, finished products valued in excess of $50,000 and, during the same period, it received directly from outside the State goods and raw materials valued in excess of $50,000. Respondent concedes, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, is concededly a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES ALLEGED A. Background and issues Respondent manufactures garments solely pursuant to contracts which it obtains after bidding and almost all such manufacturing is in fulfillment of Government BROWNWOOD MANUFACTURING COMPANY 1029 orders for clothing for various branches of the armed services. Not infrequently layoffs of employees occur when one contract is completed and before another one is started or reaches the full operation stage . In connection with such layoffs in between contracts in the spring of 1962, it is alleged that Respondent discriminated against three employees because of their prominence in the Union's organizational drive then in progress . It is also alleged that Respondent, through its forelady, Aline Clements, engaged in surveillance of union meetings , and through one of its line supervisors, Josephine Hef ington, interrogated employees about their union activities and sympathies and threatened them with reprisals if the Union should organize the plant. The evidence regarding these issues is set forth below. B. The alleged surveillance The Union started distributing handbills at the plant in December 1961 . In March 1962 an employee organizing committee was selected and held meetings at an apartment in the Grande Courts in Brownwood, occupied by Azlee Taylor, the Union's organizer. This apartment was near a grocery store called the JRB Store where Forelady Aline Clements frequently traded. On one evening in March mem- bers of the organizing committee meeting in Miss Taylor's apartment observed Forelady Clements, accompanied by a man , park between the store and Grande Courts, wait in the car a few minutes , then go alone into the JRB Store. Employee Edward LaFarlett, chairman of the organizing committee , also went into the store on that occasion and saw Clements apparently purchasing some hosiery. Clements testified that the spot between the store and Grande Courts, where she was seen parking on the evening in question , is the place where she customarily parks when trading at the store because it is the easiest place to get out of ; that she usually takes her semi-invalid husband with her and leaves him in the car while she shops; and that she never saw or became aware of any employees meeting at the Grande Courts, nor did she know that the union organizer lived there. On another occasion , about March 6, when a union meeting originally scheduled to be held in the Kilowatt Room of the Texas Power and Light Company building was transferred to a room in the county courthouse nearby, the union organizer and Faye Shelton , one of the employee members of the organizing committee, while waiting across the street from the Kilowatt Room to direct employees who might not have heard of the changed location of the meeting , saw Forelady Clements drive slowly by several times, looking toward the Kilowatt Room entrance. Clements testi- fied that she does not remember any particular occasion when she drove by the Kilo- watt Room several times , but that if she did, she must have been hunting for a con- venient glace to park while paying her utility bill at that location . She explained that she usually pays her bill in person by dropping the payment in a slot at the Texas Power and Light Company, that she was never aware of the meeting place of any of the union meetings and never at any time sought to observe any meeting. Clements impressed me as a thoroughly honest person and I credit her explanations. Innocent, as I believe her to be , of any wrongful intent, I would not expect her to remember the precise occasions , over 6 months before the hearing, about which the General Counsel's witnesses testified or to give definite and positive explanations for her presence near such public places as those chosen by the Union for its meet- ings. I find that she did not engage in surveillance as alleged in the complaint. C. The conduct of Line Supervisor Heffington Mrs. Josephine Heffington, during the period here in issue, was a supervisor over the inspector's and presser's line, with 12 to 15 employees under her. According to employee Myra Haynes, a close friend who worked as a steam presser under Heffing- ton, the latter asked her in early February 1962 whether anyone from the Union had visited her and, when Haynes replied in the negative, Heffington informed her that a union representative had visited several other employees at their homes during the preceding night. When Haynes speculated that those employees , unlike herself, must have mailed in their union cards , Heffington assured her that they had not. Heffing- ton then told Haynes that General Manager Miller had said that morning that the plant had never operated under a union and that he would close it "if it went union." Thereafter, according to Haynes, she and Heffington had many discussions about the Union. Just before the March 7 union meeting, Heffington asked if Haynes was going to attend . Haynes replied in the affirmative and invited Heffington to go as her guest, an invitation which Heffington declined . The next morning Heffington came to Haynes' place of work and asked if she had attended . Haynes replied that she had and proceeded to tell Heffington of the working conditions which she believed 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD needed correction. In the days that followed, Heffington initiated discussions many times about working conditions and the Union, with Haynes arguing for the Union and Heffington against it. On one of these occasions, about the middle of April, Haynes revealed that some- one at a union meeting had claimed that Respondent was receiving a higher price for one of its garments than Heffington believed it was receiving . Heffington told Haynes, "Myra , I want you to go up and see the books , and just see how little Mr. Miller is getting from these jackets. . . . If the Union would move in here, they'd have such little profit until they couldn't operate." Haynes declined the suggestion that she look at company books. A few minutes later she was summoned to Miller's office. He told her that he wanted her to see what he was getting for the jackets and showed her his books. He told her that "the Union will just lie to you, and lie to you, and not do anything they say." Haynes defended the Union and told him some of the reasons she thought a union was needed.' Two other employees on Supervisor Heffington's line testified with respect to state- ments made by her about the Union. Stella NeSmith testified that in March 1962, Heffington asked her and others on her line whether they knew that Swift and Company in Fort Worth had closed down on account of a union and remarked that the same thing might happen at Respondent's plant. She also told them that if Respondent's plant went union, the manager of a nearby woolen mill wanted the names of employees who supported the Union so that he could avoid hiring them if they applied for work at his mill. NeSmith described another occasion when Heffington told the employees at her table that General Manager Miller had been promised an air-conditioned plant at Dublin, Texas, about 60 miles away, if his Brownwood plant went union. Zera Milam, who worked as a presser adjoining Myra Haynes, testified that Heffington on many occasions initiated conversations with Haynes about the Union and that she overheard Heffington tell Haynes, among other things, that if the Union came in, Respondent might not be able to get any more contracts and that the plant might have to close. Supervisor Heffington categorically denied the statements attributed to her by Haynes, NeSmith, and Milam. She testified that General Manager Miller had in- strooted the supervisors not to discuss the Union with employees and that she had followed those instructions. I do not doubt that Miller gave such instructions to his supervisors but I am convinced that Heffington did not follow them. From her demeanor on the witness stand, I do not regard her as ,a truthful witness. Haynes, NeSmith , and Milam, on the other hand, appeared sincere and honest. I find that Heffington made the statements substantially as attributed to her by those witnesses. Miller credibly testified that he had never in fact made any such statement as that attributed to him by Heffington in her conversation with Haynes in March-that he would shut the plant down if it went union. He testified, and I find, that because of some questions employees had asked him and because a representation election had been scheduled for May 30,2 he called a meeting of the employees on May 25 or 26 and read to them a prepared statement in which he assured them that they could belong to a union if they saw fit and that regardless of whether they chose the Union, the plant would continue to operate; that management would do the best it could nand that it expected to have larger and more contracts.3 Supervisor Heffington's interrogations of her good friend Haynes about the Union were not, I am convinced, reasonably calculated to, nor did they in fact, have the effect of interfering with, restraining, or coercing Haynes in the exercise of her organizational rights. However, Heffington's threats of reprisal if the plant became organized were flagrant acts of interference with the employees' organizational rights, in violation of Section 8(a)(1) of the Act. As a supervisor, she was speaking for management in the eyes of the employees and Respondent is responsible for her conduct. General Manager Miller's talk to the employees in the latter part of May, though a commendable effort to reassure the employees, was not, in my view, suffi- cient to offset and neutralize the repeated threats of reprisal, both veiled and ex- plicit, made by Heffington. I have reached this conclusion because the employees to whom Heffington talked and who overheard her threats, as well as many other 1 According to Miller's credited testimony , Haynes told him on this occasion "that man [at the union meeting ] told her right out of his own mouth , and she knew he wouldn't lie, that we got $17 for the contract" and Miller then showed her his books to prove that he had never received higher than $11 for a garment under any of the contracts 2 Due to the pendency of unfair labor practice charges, the election was never held 3 Miller, apparently in a further effort to avoid becoming involved in any trouble with the Union, requested employees whom he saw wearing "Vote No" signs to remove the signs. BROWNWOOD MANUFACTURING COMPANY 1031 employees in the plant, were in layoff status at the time Miller made his talk and did not hear him. Myra Haynes, to whom Heffington addressed most of her threats, specifically testified that she did not hear or know about the speech Miller made. D. The layoffs Respondent usually makes one, two, or three different garments at one time, with various lines for the garments and a supervisor over each line. As a contract for a given garment nears completion, all employees do not finish their work at the same time. They finish progressively as the line upon which they are working is com- pleted. Thus, the cutting line, which is the first to start work on a contract when material starts arriving would be the first to finish and the inspection line would be the last to start and the last to finish. The inspectors might finish their part of work under a contract 30 or 60 days after the cutters finished theirs. Respondent attempts to obtain contracts and materials timed to avoid the necessity of laying off employees between the completion of their work on one contract and the commence- ment of their work on the next, but this is not always possible. It was not possible in the spring of 1962 and layoffs were necessitated when work on the Navy blue jacket contract ended. The General Counsel contends that one prominent union member, Lucille (Judy) Hogan, was laid off about 2 weeks sooner than she would have been laid off but for her union activities; that another, Faye Shelton, after being laid off with other employees on her line, was not recalled, for union reasons, to do another type of work for which one of the supervisors wanted her while waiting for work on her regular line to resume; and that a third, Edward LaFarlett, after being laid off with others on his line, was not recalled, because of his union activities, when his line resumed work and, indeed, had not been recalled to any type of work by the date of the hearing over 4 months later. Respondent's vice president and general manager, Miller, was the official re- sponsible for the layoff and recall of employees. The General Counsel, in order to bolster his contention that Miller was motivated by antiunion considerations in his treatment of the three employees here involved, adduced testimony from employees Shelton and Haynes that on the day preceding the opening of the hearing in this case, they and other employees who had been subpenaed to testify went to Miller's office and informed him of this fact, whereupon he asked them, "Do you want to work or do you want to fight?" According to Haynes, she replied, "'What do you mean? I have a subpena to appear, and do you mean before 8 o'clock?' And he said, `No. I'm trying to give you work. What do you want to do about it?"' Miller's account of the incident is that when he looked up from his work and saw the office full of employees, he said, "'Well, it don't look like we'll have any work going on, does it?' And they wanted to know, they said, `Well, we are sub- penaed. We can go?' And I said, `Sure, you can go, but still we won't have no work going out.' " He explained that about three-fourths of his pressing department had been subpenaed, and "They killed my pressing department " Although I find that Miller did ask during the interview, "Do you want to work or do you want to fight" I am convinced that this inquiry was more an expression of irritation over having his production interfered with than an indication of union hostility 4 Respondent has denied any antiunion motivation in its treatment of Hogan, Shelton, and LaFarlett and has furnished plausible explanations for its actions in- volving them. Except where specifically noted, the evidence regarding these em- ployees, which is set forth below, is without substantial dispute. 1. Lucille Hogan Lucille Hogan had become interested in the Union before Christmas in 1961 and, with the help of Odessa Clark, another employee on her line, had obtained the ad- dresses of a number of employees at the plant for the union organizer under the pretext that she wanted Santa Claus to visit them. Later some of the employees, upon learning that their names and addresses were being furnished to the organizer, asked that their names be removed from the book in which Hogan had written them. Hogan was chosen as a member of the Union's organizing committee, apparently early in March 1962.5 She attended all meetings of the organizing committee as 4 The General Counsel did not seek to amend the complaint to allege the incident as a statutory violation He stated that he was adducing the evidence only to show antiunion motivation o The record does not show how many other employees may have been members of the organizing committee. 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD well as all union meetings for the employees. Three such union meetings were held in the county courthouse, on March 6, 15, and 26, prior to Hogan's layoff. On the last occasion, March 26, as Hogan and other employees were congre- gated on the first floor of the courthouse, General Manager Miller came to the tax collector's office on that floor to buy a license for a truck and trailer and saw the employees. Among those he saw was Hogan in the company of a stranger who, he later learned, wasthe union organizer. Miller had not known when he went to the courthouse that there was to be a union meeting there. For 3 days following the March 26 union meeting, Hogan was ill and did not report .for work .6 When she returned on March 30, Miller told her that the contract for Navy woolen jackets, on which she had been clipping, turning, and pressing collars, was nearing completion and he would not need her any more on that con- tract. There is a conflict in the testimony of Miller and that of Hogan and Edward LaFarlett-who stood outside the office and overheard the conversation-as to whether Miller on this occasion also told Hoganthe number of cuts which had al- ready been completed, I find it unnecessary to resolve this conflict for it is un- disputed that the contract was in fact nearing completion and some employees who worked on earlier stages of the garment were being laid off. According to Miller, he attempts to be flexible in the operation of his plant and to keep all employees working full time each day if possible. Accordingly, when em- ployees regularly working on a particular line are absent or where work on one line is slack as it sometimes is at the completion of one contract or at the beginning of another, employees may be transferred temporarily to fill in on work other than their regular work to keep them busy for the full day. Miller testified that he got along very well without Hogan during the 3 days when she was absent because of illness and decided to continue doing without her for the remainder of the contract period, using other regular employees whose work on other lines was getting slack to assist Odessa Clark, the other employee regularly doing Hogan's type of work, to fill in when necessary. He explained further that he was about 2 months ahead of schedule on that particular contract and there was no reason for pushing its completion. In these circumstances, it did not matter that occasionally as the contract neared completion, bundles may temporarily have been stacked on Hogan's table. It is undisputed that no one was hired to replace Hogan She was recalled on June 13 when work on the next contract progressed sufficiently that her services were needed. It appears that usually all employees on a given line are kept working until the contract work on that line is completed, with employees on the line sometimes agreeing among themselves as to who will come in on the last day to complete the few remaining bundles; or, as on Supervisor Heffington's line, all employees may be put on a 4-day week as work becomes slack; and sometimes, when a line is laid off, one or more on the line will be transferred to other work where their services are needed. If the general practice at the plant had been followed and Hogan had not been absent because of illness, it is reasonable to assume that, absent discriminatory reasons, she would have been retained on her line for about 2 weeks longer. No evidence was adduced as to whether an employee's illness had, in the past, resulted in deviations from the general practice. 2. Faye Shelton Faye Shelton was selected secretary of the Union's organizing committee in March 1962 and thereafter passed out union cards at the plant. On April 27 she, along with Hogan and another employee not here involved, attended a representation case hearing involving Respondent's employees, at which General Manager Miller was also present. Shelton has been employed by Respondent since January 1959 and during this period has worked on a number of operations. Immediately prior to her present job of inspecting, which she had been doing from June 19, 1961, until the time of her layoff, she had marked collars. Her inspection job on the Navy jacket contract was completed on April 20, 1962, and she was then laid off with all other employees on her line. A day or two before the layoff. Line Supervisor Petty, under whom she had previ- ously worked at marking collars, came to her and asked if she would like to mark collars on a raincoat contract which had been started. Shelton replied that she 9 On March 27 the union organizer, Azlee Taylor, drove her to a doctor's office, but there is no evidence that any representative of Respondent knew of this. BROWNWOOD MANUFACTURING COMPANY 1033 would. On April 24, Shelton returned to the plant to inquire whether Petty still wanted her. Petty replied that she did but that Miller had scratched Shelton's name from a list of proposed employees which Petty had submitted to Miller for the new line, stating that he did not want Shelton for that work. Shelton then saw Miller and told him that she had come to the plant to see about going back to work. He replied, "Well, I just don't have a thing for you." Shelton was recalled on June 25 and put to work temporarily at trimming and turning collars on the white Navy jacket contract because of the absence of someone on that line. She was transferred back to the inspection line on July 16 when more of that type of work was available. The white Navy jacket contract did not require as many inspectors as the blue jacket which Shelton was inspecting at the time of her layoff. When she returned to the plant on June 25, some, but not all, of those who had inspected the blue jacket were inspecting the white jacket. In addition, there were one or more inspecting who had worked on the inspection line under prior contracts but who had not worked regularly. The latter apparently consisted of a schoolteacher and students who worked for Respondent during the summers. This, according to Miller's credited testimony, was pursuant to his longstanding policy of helping young people who were trying to get an education. Miller testified that when Line Supervisor Petty submitted to him a list of proposed employees for her new line, he told her that he believed another employee, House, would be better for that type of work and he preferred Shelton at the inspec- tion work she had been doing. This testimony was substantiated in material respects by Petty. Miller also testified that when Shelton had marked collars on a previous occasion, he had complaints from Government inspectors because Shelton "wasn't accurate on her corners." For this reason he had transferred her to the final inspec- tion line where her work was better. He explained that on June 25 he had recalled her for the inspection line but because someone was absent on another line he had utilized her services in another position until more work flowed on the inspection tables. There is no contention that the temporary work which Shelton performed between June 25 and July 16 was less desirable or paid less than her regular inspec- tion job. 3. Edward LaFarlett LaFarlett was hired by Respondent on January 16, 1962, as a bundle boy and general helper. He joined the Union within about 2 weeks and on March 6 was se- lected chairman of its organizing committee. In late March or early April when a petition, listing 10 different reasons why a union was not needed, was circulated by some employees in the plant, LaFarlett grabbed it during the lunch period and took it to the union organizer but returned it later. General Manager Miller learned of the incident shortly after it happened when some employees told him of it and asked him to make LaFarlett return it to them. Miller told the employees he was not going to have anything to do with the petition. Just prior to his layoff on April 12, 1962, LaFarlett had been working as bundle boy on the Army pants and Navy jacket lines. The Army pants line had been com- pleted and the Navy jackets were almost completed. When laying him off, Miller told him that Line Supervisor Edwards, under whom LaFarlett had been working, had reported that her line was almost completed and that she would not need him anymore for the remaining work to be done. Miller promised to notify LaFarlett when he was needed again. There is no contention that Respondent discriminated against LaFarlett in laying him off. The contention, rather, is that but for union reasons, he would have been recalled on or about May 1, when Supervisor Edwards' line started working on a raincoat contract. No bundle boy was needed or hired for this line, however, until about June 1 when a new boy, Danny Risinger, was employed. Accordingly, if any unlawful discrimination against LaFarlett occurred, it would date from about June 1. LaFarlett had not been recalled by the last of August when the hearing was in progress. He was hired by the sanitation department of the city of Brownwood on May 4 for the job of collecting trash but quit that job to work at a filling station on July 9. Once before and again just after the new bundle boy had been employed, LaFarlett returned to the plant to inquire about his job and on each occasion was told there was no work for him at that time. On the last occasion, Miller informed LaFarlett that he knew of the latter's employment with the city as a permanent employee and had assumed that LaFarlett wanted to stay with the city. LaFarlett replied that the job of collecting garbage was not pleasant and that he had intended to work at that job only while waiting to be recalled by Respondent. On July 4, LaFarlett again returned to the plant to inquire about work. There is a conflict in the testimony as to what occurred on this occasion. LaFarlett testified, 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on direct examination, that : When he arrived at the office he saw Miller talking to a truckdriver ; Miller typed a card, handed it to the driver, then invited LaFarlett in, when LaFarlett asked for his job, Miller grinned, then jumped up with his fists doubled and said , "I'm not calling you back .... I hired you to turn pants legs, didn't I? You say I hired you to turn pants legs"; LaFarlett denied that he had been hired for that job, then left the office, pushing the truckdriver away from the door as he went out. On cross-examination , LaFarlett testified, "Well , he didn't come out and say, 'I'm not going to hire you back.' He just got up, in a mean-like manner, and with his fist doubled, like I said, and tried to make me admit that he hired me only to turn pants legs." The testimony of Miller and that of the truck- driver, Harland Harris, is to the effect that when LaFarlett inquired about his job, Miller informed him that there was no work for him at that time ; in response to LaFarlett's question as to when he would be put to work , Miller replied that he did not know; Miller then got up and handed some waybills, which he had just typed, to the truckdriver, and LaFarlett left Both Miller and Harris denied that LaFarlett pushed Harris aside as he left. The accounts of Miller and Harris sounded reasonable and convincing and I credit them. But even if LaFarlett's account of the July 4 interview be accepted , I fail to see how Miller's conduct would support the charge of discrimination. Miller testified that LaFarlett did not work out satisfactorily as a bundle boy and he does not intend to use him again for that work but to use him, instead , for some job, such as spreading or loading and unloading materials , for which he is more suitable; that production is off about 60 percent due to a lack of good operators and that work suitable for LaFarlett is not yet available. According to Miller, he usually finds more suitable and hires 16- to 18-year-old boys as bundle boys,7 but he hired LaFarlett, who is 29, for that work and general labor work because LaFarlett had applied to him 15 or 20 times and stated that he needed a job badly. He testified that on several occasions in February , he discussed LaFarlett's work with Supervisor Edwards and she complained that he lacked interest in his work; that he also received complaints from several of the operators whom LaFarlett serviced and spoke to LaFarlett several times about the complaints. One of the operators , Mrs. Jimmie Gowin, reported that he would not carry bundles for her and at times would tell her to get up and get her own bundles . Another employee, Ann Madonna, also complained to Miller that LaFarlett would not carry bundles and service the line. In explaining why he did not discharge LaFarlett when the complaints were received , Miller stated, "I was undecided , due to the union activity that I knew was in the plant , and so forth . I knew there would be criticism. So I said, `Well, I'll go ahead and try to put up with it until the end of the contract,' and I did." Miller testified that: Although he did not know that LaFarlett was a member or chairman of the organizing committee , he knew that there was union "agitation" going on in the plant, he had seen LaFarlett carrying little books and spending 10 or 15 percent of his time talking to Hogan and other employees in parts of the plant where he had no business and assumed he was engaging in union activities ; he had requested LaFarlett to stay on his side of the house; and he knew of LaFarlett's special interest in the Union because of the petition incident previously mentioned. Miller's testimony about the unsatisfactory nature of LaFarlett's services as a bundle boy finds support in the testimony of Line Supervisor Edwards and Gowin. According to Edwards, LaFarlett was rather slow and clumsy and did not seem to like women telling him what to do . He did not always bring bundles to girls as the bundles were needed and some of the girls had to get their own bundles She has heard him tell some of the girls to get their own bundles but she did not report this to Miller at the time. She did report to Miller, however , that LaFarlett was slow. According to Gowin, LaFarlett was "good" when first hired but he soon "took a dislike" to her and was slow in bringing bundles to her as well as to some of the other girls , including "Ann ," who worked beside her ii She complained first to LaFarlett, then to Supervisor Edwards, and "toward the last" to General Manager Miller When she reported her complaint to Miller, he said , "Well, we are nearly at the end of the contract. Let's go along with it till the end of the contract." Ac- cording to Gowin, she finally told LaFarlett that she did not want him to bring 7Foreladv Edwards estimated their ages as between IS and 20 8 Gowin had "words" with LaFarlett when he grabbed the antiunion petition and took it out of the plant but she testified that he had refused to bring her bundles prior to that incident BROWNWOOD MANUFACTURING COMPANY 1035 her any more bundles, that she did not want him around her machine. The testimony of Miller, Edwards, and Gowin about LaFarlett's deficiencies as a bundle boy are undisputed and I credit it. 4. Conclusions with respect to the alleged discriminations Where, as here, a plant is being newly organized, employees who assume an active role in the organizing drive are understandably sensitive to any employer action with which they may disagree and tend to interpret such action as reprisals for union activity. I am confident that the three employees on behalf of whom charges were filed sincerely believed that they were being discriminated against because of the active role they played in the organizational drive. An employer, on the other hand, need not bend over backward to avoid taking action which he would otherwise take merely because his employees may interpret it as discrimination against them. The burden was on the General Counsel to show that the layoffs or delays in recall of the employees involved would not likely have occurred but for their union activities. Although fully aware of the fact that direct evidence of discriminatory motivation is rarely obtainable and that inferences must usually be drawn from circumstantial evidence, I am not satisfied that the General Counsel, on this record, has sustained his burden of proof. Hogan's 3-day absence because of illness came at a time when some other em- ployees on earlier stages of work on the Navy jacket contract were being laid off and when still others had less than a full day's work available for them on their regular operation. Having used some of the latter employees to fill in on Hogan's work during her illness and thereby provide a full day's work for them, it does not seem unreasonable to me that even if no union had been in the picture, Miller would have decided to continue getting along without Hogan for the remaining work on the contract. Miller's decision was consistent with his practice of attempting to be flexible in his operations and was not shown to be inconsistent with any prior treat- ment of employees absent because of illness. With respect to Shelton, there is no basis for inferring that there was any dis- crimination in either her layoff or recall. I find entirely credible Miller's explana- tion for choosing another employee rather than Shelton for the collar-marking work which became available a few days after Shelton's layoff. Miller had taken Shelton off collar marking and put her on final inspection, for which he found her better suited, before the Union started organizing and there is no basis for doubting his testimony that he still preferred her on the final inspection line. Moreover, I am not persuaded that Miller even knew of Shelton's prominence in the union movement until she appeared at the representation hearing, on a date subsequent to the time when he had vetoed her selection by Supervisor Petty for the collar-marking job. Nor am I convinced that Miller's failure to recall LaFarlett for bundle boy work was discriminatorily motivated. It is undisputed that LaFarlett was substantially older than most employees selected for that type of work. While still a new employee and without giving his employer an opportunity to ascertain how satisfactory his services might be under normal circumstances, he launched upon a vigorous cam- paign to organize the plant, spent an excessive amount of time away from his work talking to Hogan and other employees, antagonized some of the antiunion employees by snatching their petition and running out of the plant to show it to the union organizer, and failed to service some of the employees on his line. It may be that the manner in which he serviced his line and the ill will toward him which caused some of the employees on his line to complain to Miller may have been caused, at least in part, by their disagreements with him about the Union but, whatever the cause, it seems clear that LaFarlett's performance as a bundle boy was not entirely satisfactory. Miller, in attempting a solution to the situation, was placed on the horns of a dilemma. He had reason to believe, as he frankly conceded, that LaFarlett was engaging in union activities at the plant and feared that he would be charged with an unfair labor practice if he discharged LaFarlett for not properly servicing his line; yet he did not want to put up, beyond the current contract, with the com- plaints he had been receiving about LaFarlett. I have no doubt that Miller may have hoped that during the layoff between contracts LaFarlett would obtain other employment and not desire to return to bundle boy work. This is a fair inference from the fact that he checked with the city of Brownwood to ascertain whether LaFarlett's job with the sanitation department was permanent before hiring a new bundle boy. But in the circumstances of this case, I cannot ascribe to Miller an antiunion motivation, rather than economic considerations, in deciding not to recall LaFarlett to bundle boy work An employee's right to engage in union activities 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not protect him against job reprisals for interference with production and nonperformance of his regular duties which result from his union activities. For the reasons set forth above, I find that a preponderance of the evidence does not support the allegations of the complaint that Respondent discriminated against Hogan, Shelton, or LaFarlett within the meaning of Section 8(a)(3) of the Act. IV. CONCLUSIONS OF LAW 1. Respondent, by threatening job reprisals if the plant should become organized, has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent has not violated Section 8(a) (1) or (3) of the Act by engaging in surveillance of union meeting places or activities, by interrogation of employees, or by discriminating against employees Lucille Hogan, Faye Shelton, and Edward LaFarlett, as alleged in the complaint. V. THE REMEDY Having found that Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act, my recommended order will require Respondent to cease and desist therefrom and post an appropriate remedial notice. 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 Respondent, Brownwood Manu- facturing Company, its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Threatening to close its plant or otherwise discriminate against its employees if they choose Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization to represent them. (b) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post in conspicuous places at its manufacturing plant in Brownwood, Texas, copies of the attached notice marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof, and maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Intermediate Report, what steps Respondent has taken to comply herewith 10 It is further recommended that the complaint, insofar as it alleges that Respondent engaged in unlawful surveillance, interrogation, and discrimination against employees, be dismissed. e If this Recommended Order should be adopted by the Board, the words "As ordered by" shall be substituted for "As recommended by a Trial Examiner of" in the notice. In the further event that the Board's Order be enforced by a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order of" shall be substituted for "As ordered by." 101n the event that this Recommended Order 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 As recommended by a Trial Examiner of the National Labor Relations Board and in order to conduct our labor relations in compliance with the National Labor Relations Act, we notify our employees that: FRIENDSHIP MATERIALS, INC. 1037 WE WILL NOT close or threaten to close our plant or take any other reprisal against our employees because they may select Amalgamated Clothing Workers of America, AFL-CIO, or any other union, to represent them. All our employees are free to become or remain members of any union and they are also free to refrain from joining any union. BROWNWOOD MANUFACTURING COMPANY, Employer. Dated- ------------------ By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 6th Floor, Meacham Building, 110 West 5th Street, Fort Worth 2, Texas, Telephone No. Edison 5-4211, Extension 2131, if they have any question concerning this notice or compliance with its provisions. Friendship Materials, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Ind., Local 247. Case No. 7-CA-3625. February 4, 1963 DECISION AND ORDER On August 15, 1962, Trial Examiner Lloyd Buchanan 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 Inter- mediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recom- mended that the allegations of the complaint pertaining thereto be dismissed. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, 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 Interme- diate Report and the entire record in the case, including the excep- tions and brief, and finds merit in the exceptions of the Respondent. The Board, accordingly, adopts the findings of the Trial Examiner only to the extent that they are consistent with this Decision and Order. The complaint alleges and the Trial Examiner found that Re- spondent violated Section 8(a) (3) and (1) of the Act by discrimina- 1 Respondent's request for oral argument is hereby denied, since the record , exceptions, and brief adequately present the issues and the positions of the parties. 140 NLRB No. 92.