Hampshire Woolen Co.

GONIC MFG. CO., DIV. OF HAMPSHIRE WOOLEN CO. 201 their former or substantially equivalent positions , and make them whole for any loss of pay suffered by reason of the discrimination against them. All our employees are free to become, remain, or refrain from becoming or remaining members of Local Union No. 215, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America , or any other labor organization. AUSTIN POWDER COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify any of the above-named employees presently 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. 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, Transit Building, Fourth and Vine Streets, Cincinnati 2, Ohio, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. Gonic Manufacturing Company , Division of Hampshire Woolen Company and Textile Workers Union of America, AFL-CIO. Case No. 1-CA-3782. March 7, 1963 DECISION AND ORDER On October 22, 1962, Trial Examiner Samuel Ross issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Re- port. He further found that the Respondent had not engaged in cer- tain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a reply brief.' 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 [Chairman McCulloch and Members Leedom 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 1 After expiration of the period for filing exceptions and briefs , the Respondent, who had filed no exceptions or brief, requested leave to file a brief in reply to the General Counsel's brief, and was granted special leave to do so. We are aware that the Respond- ent there made a reference to exceptions by it to the Trial Examiner 's findings of viola- tion of Section 8(a) (1). However, we find, in the circumstances, that as no such excep- tions have, in fact, been filed in proper form or in timely fashion , there are no exceptions to the 8 ( a) (1) findings before us. See Rules and Regulations of the National Labor Relations Board, Series 8, as amended, Section 102.46(b). 141 NLRB No. 18. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, the exceptions, and the briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. The Trial Examiner found that, although there were suspicious circumstances in employee Marcotte's discharge on April 12, 1962, the General Counsel had not established by a preponderance of the evidence that the Respondent discharged Marcotte in violation of the Act. We find, contrary to our dissenting colleague, that the record supports these findings of the Trial Examiner. The Respondent discharged Marcotte in April 1962 on the ground that he had failed to cooperate with fellow workers. As a matter of fact, Marcotte had been laid off for the same reason in September 1961.2 At that time, Marcotte had been active on behalf of the Union, and the Respondent was aware of this activity. Yet, the Respondent took Marcotte back a day or so later. While Marcotte was at this time given a temporary and less desirable job at a lower wage, in February 1962, upon completion of the temporary job, the Respondent restored Marcotte to a permanent job similar to the one he had held originally, and restored him to his original wage rate. Except for the allegation that Marcotte was discriminatorily discharged more than 2 months later, it is not contended that the Respondent, in the interim, engaged in any conduct which violated the Act or demonstrated union animus. The dissenting opinion relies, however, on the fact that there was an "acceleration" of union activity in the month prior to Marcotte's discharge. It is true that the Union, whose organizing campaign up to that time had been carried on by personal solicitation, had sent a different International representative to replace the one who had been in charge of the campaign, and union leaflets were thereafter distrib- uted at the plant entrance. But Marcotte did not participate in this leaflets distribution, and the record does not show that there was any increase or change during this period in the nature or tempo of Marcotte's union activity. In addition, there is no evidence that the Respondent knew that Marcotte had continued to be active on behalf of the Union after his reinstatement in February 1962. We note, in this connection, that the only incident within the Section 10(b) period relied upon by the Trial Examiner to show the Respondent's hostility to the union organization of its employees occurred in a conversation between the superintendent and Marcotte in December 1961.3 This was, as already noted, prior to Marcotte's restoration by the Respond- ent to his equivalent job and earnings, and 4 months prior to his 2 No charge was filed with regard to this layoff. 3 See footnote 1, supra. GONIC MFG. CO., DIV. OF HAMPSHIRE WOOLEN CO. 203 discharge. Accordingly, under all the circumstances of this case, and without regard to whether or not a prima facie case was made out by the General Counsel, we are satisfied that the totality of the evidence does not preponderate in favor of a finding that Marcotte was un- lawfully discharged.4 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. MEMBER BROWN, dissenting in part : I cannot agree with my colleagues' refusal to find that employee Marcotte was unlawfully discharged. The Trial Examiner, while rejecting the Respondent's asserted reason for the discharge and find- ing some merit in the General Counsel's contention that the termina- tion was motivated by the increased tempo of the Union's campaign of which Respondent was aware, Respondent's knowledge of Marcotte's leading role as one of the Union's organizers, and Respondent's hos- tility to the Union, nevertheless recommended dismissal of this aspect of the complaint because the General Counsel had not adduced specific evidence of Respondent's antiunion motivation. And the majority herein, by its adoption of these findings and recommendations, is similarly imposing a requirement that such motive be specifically shown. However, no such absolute standard of proof has ever been required in the past and, in my opinion, it should not be imposed now. It is sufficient if the General Counsel makes out a prima facie case on circumstantial evidence, for circumstantial evidence may nonetheless be substantial evidence and, in an unfair labor practice case, is often the only evidence available.' The General Counsel has clearly made out such a. prima facie case here on the facts found by the Trial Examiner and adopted by my colleagues. Thus, Marcotte was admittedly a competent employee who was discharged without prior warning at a time when his department was shorthanded, he was doing extra work as a result of the absence of another employee, and the Respondent did not know that it would be able to replace him. This action was taken soon after Respondent became aware of the acceleration of the Union's organization campaign. The Respondent's hostility to the Union is established, and it is irrelevant that a short period of time may have elapsed since the prior overt manifestation of its antiunion sentiments.' * Accord, Quo Enterprises, Inc. 140 NLRB 1001. 5 Idaho Concrete Products Company, 123 NLRB 1649 , 1663, and cases cited therein at footnote 17. Cf. N.L.R.B. v. American Aggregate Company , Inc, et al. , 305 F 2d 559 (C A 5) ; N L R B. v. Bard Machine Company, 161 F 2d 589, 592 (C.A 1) 9 See Idaho Concrete Products Company, supra. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under these circumstances, it is entirely reasonable, in light of Re- spondent's knowledge of Marcotte's active union role, to infer that the Respondent acted to rid itself of the most active union adherent. As the facts thus establish a prima facie case of unlawful discrim- ination against Marcotte, it was incumbent on the Respondent to go forward with evidence to give an adequate explanation for the dis- charge.' This it has not done. And the fact that the explanation of the discharge offered by the Respondent did not stand up under scrutiny adds to the weight to be accorded the inferences which may be drawn from the facts.' Accordingly, I would reject the Trial Examiner's conclusions and would find that the Respondent violated Section 8(a) (3) of the Act by its discharge of Marcotte. 7Idaho Concrete Products Company, supra ; N.L.R B. v. Bird Machine Company, supra. s N L.R B. v. Bird Machine Company, supra. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed on April 16, 1962, by Textile Workers Union of America, AFL-CIO (herein called the Union), the General Counsel of the National Labor Relations Board issued a complaint dated May 24, 1962, against Gonic Manufactur- ing Company, Division of Hampshire Woolen Company (herein called the Respond- ent or the Company), alleging that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. In substance, the complaint alleges that the Respondent interrogated employees regarding their union affiliation, threatened to close down its plant if the Union organized it, and discharged employee Robert Marcotte be- cause of his membership in and activities on behalf of the Union. The Respondent filed an answer denying the substantive allegations of the complaint and the commis- sion of unfair labor practices. Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross in Rochester, New Hampshire, on July 10 and 11, 1962, and in Boston, Massachusetts, on July 24, 1962. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to introduce evidence, to examine and cross- examine witnesses, to present oral argument, and to submit briefs. On August 27, 1962, briefs were received from the General Counsel and the Respondent, which I have carefully considered. Upon the entire record in the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent, a New Hampshire corporation whose principal office and place of business is located at Gonic, New Hampshire, is engaged in the manufacture, sale, and distribution of woolen and flannel cloth and related products. In the operation of said business, Respondent annually sells and ships products valued in excess of $50,000 from its plant in Gonic to points and places outside the State of New Hamp- shire. On the foregoing admitted facts, I find and conclude that the Respondent is engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. GONIC MFG. CO., DIV. OF HAMPSHIRE WOOLEN CO. 205 III. THE UNFAIR LABOR PRATICES A. Background 1. The commencement of union organizational activities by Marcotte Robert Marcotte, an employee with considerable prior experience in other textile mills, was hired by Respondent on or about August 4, 1959, and was assigned by Wallace Lovely, foreman of Respondent's weaving department, to work as a warp- setter on the third shift. Marcotte worked for Respondent as a warpsetter for 3 or 4 weeks, then as a weaver until the spring of 1960, and then was assigned to work as a loomfixer. In July 1961, while thus employed under the immediate supervision of Albert Hutchins, Respondent's second hand in charge of the weaving department on the third shift, Marcotte became interested in organizing Respondent's employees on behalf of the Union. In furtherance of that objective, Marcotte contacted Raymond Herse, chairman of the Union's Local 1360, and received from him a number of union organizational cards. Thereafter, Marcotte, together with William Rippett, a fellow loomfixer on the third shift, commenced soliciting the interest of Respondent's em- ployees in representation by the Union and their signatures to the authorization cards. From time to time thereafter, Marcotte turned over signed authorization cards to Herse and received an additional supply of new ones for further solicitation of employees' signatures. 2. Marcotte's earlier layoff In addition to Marcotte, Respondent employed two other loomfixers on the third shift, William Rippett and Frank Morrelle. The job of a loomfixer was to maintain the looms in proper operating condition, repairing them when they broke down, replacing worn or broken parts, and making all necessary adjustments. Each of the loomfixers was assigned specific looms over which he bore primary responsibility for proper maintenance. In August 1961, because Respondent did not have a warpsetter on the third shift, the loomfixers on that shift were also required to replace warps that had run out with full ones.' In addition, in emergency situations, and when the loomfixer had a short section,2 they were also expected to assist in repairing and adjusting looms and, on specific instruction by the second hand, to replace warps on looms other than their own. In the latter part of August 1961, there was dissension among the three loomfixers on the third shift in respect to replacing warps on looms other than those regularly assigned to them. According to Second Hand Albert Hutchins and Morrelle, this discussion was caused by Marcotte's refusal to cooperate in this respect when he had a short section. However, according to Rippett, the proximate cause of the disagree- ment was Hutchins' favoritism toward Morrelle, and his disparate assignments of work, as a consequence of which Rippett and Marcotte were doing all of Morrelle's work in respect to replacing warps. In any event, regardless of who was responsible for the dissension among the loomfixers, as a result thereof, Foreman Wallace Lovely called them all together on Friday morning, September 1, 1961, and advised them that they were all required to cooperate in the work of replacing warps on all looms. The loomfixers all agreed. That night, at the start of the third shift, Hutchins chided Marcotte for his meekness during the conference with Lovely that morning. Accord- ing to Rippett's uncontradicted and credited testimony, Marcotte replied that there was nothing to be gained by being other than meek, and he asked Hutchins whether they were going to have any additional help that night. Hutchins became angry and said to Marcotte and to Rippett, "You guys are a couple of troublemakers. We know what you guys are up to. If you guys have your way this plant's going to close and the Company's going to move out." Marcotte credibly testified that he then told Hutchins that before the latter's promotion from loomfixer to second hand, they had "all worked together and got along fine," but that since such promotion, "it's got so we can't talk to you, . this job it's gone to your head. . You know yourself what the people in Sanford have called you?" 3 Hutchins asked, "What did they call me?" Marcotte said, "Let's just forget it." Hutchins insisted on being told, and Marcotte complied by repeating a vulgar and profane word by 1 A warp is a roll of parallel threads or yarn which run lengthwise in the loom. s This occurred when some of the looms that were assigned to the loomfixer were not operating because of the absence of weavers, or for some other reason. 3 The reference to Sanford was to a mill in which Hutchins had formerly worked. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which "the people in Sanford" allegedly described Hutchins. Hutchins then threat- ened, "Well, I'm not going to stand for that. Nobody is going to work for me and call me that." Marcotte explained that he had only told Hutchins at the latter's insistence what others, not he, called Hutchins. The following morning, Hutchins reported to Lovely that Marcotte had called him a profane name and that he would not have any such employee working for him .4 The following Monday evening, just before Marcotte was scheduled to return to work, he received a telephone call at his home from Lovely advising him that he was laid off. According to Marcotte's uncontradicted and credited testimony,5 he asked Lovely the reason for his layoff, and Lovely replied, "Well, Bob, you know this kind of stuff that's going on down there breeds trouble, and trouble breeds unionism, and that we can't have." Lovely also told Marcotte that his layoff could be temporary or permanent, whichever Marcotte preferred. Marcotte asked and was given a day to think it over. The following morning, Marcotte visited the plant and complained to Respondent's Superintendent Lane that his layoff was unfair since he had more seniority than the other loomfixers. After conferring with Lovely, Lane offered and Marcotte accepted a temporary job in the spinning department at a substantially lower hourly rate.6 B. Interference, restraint, and coercion Marcotte worked at this new job from September 1961 to January 1962, assembling a new type of spinning frame which Respondent was installing , and disassembling the old mule type frames whose use Respondent was discontinuing. During this period, Marcotte continued his interest and activity on behalf of the Union. In the latter part of November 1961, an International representative of the Union arrived in Gonic, New Hampshire, and assumed control of the organizational drive at the plant. Thereafter, with Marcotte's active assistance and participation, an organizing committee of employees was formed and met weekly, and sometimes more often, in furtherance of the union organization objective. On December 14, 1961 , while working at his job in the spinning department, Marcotte was questioned by Superintendent Lane regarding his union activities. According to Marcotte's credited testimony, Lane asked him, "What's this story I hear about you and some other fellow down in the weaving department going around trying to organize this mill?" Marcotte evaded a direct reply by asking Lane whether his information came from a good source, and , by suggesting that if so, there was no need for Lane to inquire. Then Lane told Marcotte that the mill was not making too much money, that Rindge (the plant owner) "is dead set against" unions, and that "before he will let the union run this mill he will shut it down." ' In the context of the threat to close the plant down rather than submit to union representation of Respondent's employees, Lane's interrogation of Marcotte, the leading advocate of the Union, clearly constituted interference, restriant, and coercion within the meaning of Section 8(a)(1) of the Act. Similarly, it is quite obvious that such a threat, in itself, also constitutes unlawful restraint of employees rights guaranteed by the Act. Accordingly, I find and conclude that by Lane's interrogation 'Both Hutchins and Morrelle testified that Marcotte had called Hutchins a profane name, and that he had not merely reported to Hutchins what others had called him Since a determination of which is the true version of the profane name incident has little, if any, significance to the issues herein, I shall not resolve this conflict in the testimony 5 Lovely was not called to testify by Respondent. 0 All of the foregoing incidents, Hutchins' statement that the plant would close down "if you guys have your way," Lovely's statement that "we can't have" unionism, and Marcotte's layoff, occurred more than 6 months prior to the filing of the charge in this case, and, therefore, are not alleged as unfair labor practices on the part of the Respond- ent However, the General Counsel relies on these occurrences to show the Company's hostility to representation of its employees by a union. 7 Lane first denied any recollection of such a conversation and then categorically denied engaging in the interrogation or making the threat ascribed to him by Marcotte I was, in general, favorably impressed by Marcotte's apparent candor and demeanor while testify- ing, and do not believe that he would likely fabricate this testimony out of whole cloth. Lane, on the other hand, also denied any knowledge of the Union's organizational drive prior to Marcotte's discharge on April 12, 1962, which denial I regard as patently im- plausible in the light of the Union's distribution of literature to employees, including some foremen, both at the plant entrance and by mail in March 1962. Accordingly, I do not credit Lane's denials of Marcotte's testimony in respect to the foregoing conversation between them. GONIC MFG. CO., DIV. OF HAMPSHIRE WOOLEN CO. 207 of Marcotte, and threat, Respondent engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. C. Marcotte's alleged discriminatory discharge In February 1962, upon the completion of the assembling of the new spinning frames, Marcotte was offered and accepted a transfer to a regular job in the spinning department as a fixer of the new frames on the third shift. At the same time, his rate of pay was increased to that which he had received as a loomfixer in the weaving department. The spinning department in Respondent's plant is the place where roving, slivers of wool, are spun and twisted to make the hard woolen yarn or thread used in the weaving of woolen cloth. As one of two fixers employed on the third shift, Marcotte's new job was to assist in maintaining Respondent's 21 spinning frames in good operating condition, and in repairing them when they broke down or malfunc- tioned. This included replacing torn or broken fabric belts on the machines, to do reeling,8 to assist the spinner or operator of the frame in doffing,9 and in starting up the frame after doffing has been completed. According to the credited testimony of Arthur Goupil, a witness for Respondent, it takes about 14 or 15 minutes for one man working alone to doff the bobbins on a frame, and about 7 minutes when this work is performed by two men. Goupil also credibly testified that "there's nothing to" the work of starting up, that it is "automatic," requiring merely the turning of a "handle," and splicing the threads, which sometimes break when the machine starts, by simply pressing the ends of the broken threads together. Marcotte worked at the job of fixer in the spinning department until he was dis- charged by Respondent on April 12, 1962, allegedly for his failure to cooperate. During this period of employment, Marcotte continued his activities on behalf of the Union, attending meetings of the employee committee, providing another new International representative of the Union, who arrived in Gonic on March 1, 1962, with the names of employees to solicit for union membership, occasionally accom- panying the union representative during such solicitation, and talking to employees at their homes and in the plant on behalf of union representation. During March 1962, the Union distributed literature to employees both at the plant entrance and by mail.1e Some of Respondent's supervisors, including Marcotte's new second hand, Albert Ronco, received copies of the union leaflets.ii When Marcotte first started to work as a fixer in the spinning department, he and the other fixer, Herbert Ramsay, were not assigned to any specific frames on which to perform their various duties, but instead, helped each other on all the frames wherever their work was needed. However, after 3 weeks in the department, Marcotte was assigned primary responsibility for the work needed on 11 of the 15 frames on the top floor of the plant, and Ramsay was assigned 10 frames, 4 on the same floor as Marcotte, and the balance on the floor below. Ramsay went on an extended sick leave on Monday, April 9, 1962, to receive medical treatment to correct some condition of his hands. Because the length of his absence was not definitely known, Respondent did not replace him. Instead, Foreman William Scott notified Second Hand Ronco that he would have to assume at least some of Ramsay's duties, and that Ronco and Marcotte would have to "try to carry on." 8 Reeling consists of taking about 50 yards of thread from a spool or bobbin, weighing the thread to determine whether it conforms to the proper standard for the type of thread involved, and making necessary adjustments to the frame so that the proper twist and weight is achieved. 9 Doffing consists of taking full spools or bobbins from the frame and replacing them with empty ones. There are 160 bobbins on each frame. 10 Marcotte did not personally participate in the distribution of union literature at the plant entrance before his discharge. u Marcotte also testified that in February or March 1962, Ronco was present during a luncheon discussion between Marcotte and Ricker, another employee, in which Marcotte espoused the need for union representation. Ronco, whose poor hearing requires the use of a hearing aid, denied any recollection of being present during this conversation, denied hearing any such conversation, and denied any knowledge regarding Marcotte's interest in, or activities on behalf of, the Union. In view of my conclusion, hereinafter explicated. that Respondent had knowledge of Marcotte's union interest and activities, I deem it un- necessary to make a further determination that Ronco also had such knowledge, and therefore, I shall not attempt to resolve the apparent conflict in the testimony of Marcotte and Ronco regarding the latter's presence during Marcotte's espousal to Ricker of the Union's cause. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent concedes that Marcotte's work in the spinning department was satisfactory prior to Ramsay's departure for medical treatment. Foreman Scott testified that he had "no quarrel" in respect to Marcotte's ability to do his job. Nevertheless, on Thursday morning, April 12, 1962, Scott discharged Marcotte without prior warning because of Marcotte's alleged failure to "cooperate" during Ramsay's absence. Scott admitted that he had no personal knowledge of Marcotte's alleged lack of cooperation,12 and testified that he so acted solely because he had received successive reports from Second Hand Ronco that Marcotte persisted in refusing to help in doffing any frames other than those specifically assigned to him. According to Marcotte's credited testimony, on the first night of Ramsay's absence, Monday, April 9, he asked Ronco whether Scott was going to supply them with some help, Ronco replied that he had not received any definite word, and that they would have to get along as best they could without help. That night, and on the nights which followed before he was discharged, Marcotte doffed, reeled, replaced tapes, and worked generally not only the frames assigned to him, but also on those to which Ramsay was regularly assigned. On Tuesday night, Marcotte was advised by Ronco that there would be no help provided, and he replied that he would do the best he could, but did not know how he could handle it alone. That night, Marcotte was so busy that he went without "lunch." During the 3 nights of Ramsay's absence before Marcotte was fired, Ronco made no complaint nor in any way criticized the work Marcotte was doing. Marcotte's testimony regarding doffing and working on all the frames, not just those assigned to him, was corroborated by both Ronco, Marcotte's supervisor, and Respondent's witness, Arthur Goupil, a third shift spinner who replaced Marcotte as fixer after his dismissal. Ronco testified that Marcotte had refused to start up frames after doffing, and that it was this latter lack of "cooperation" which he had reported to Scott. Ronco's testimony regarding his reports to Scott concerning Marcotte was self-contradictory, inconsistent, and confused. At first Ronco testified that all he reported to Scott was that Marcotte had repeatedly suggested that additional help was needed because of Ramsay's absence, and that Scott had consistently replied that he had none available, and that they would have to get along as best they could. After testifying on several occasions that this was the total extent of his conversations with Scott, on prompting by Respondent's counsel by leading questions, Ronco later testified that he reported to Scott that Marcotte was refusing to start up frames after doffing.13 Still later, when asked to relate what he reported to Scott after each of the first 2 nights of Ramsay's absence, Ronco reiterated his first version of the report, and again made no reference to Marcotte's alleged refusal to start up machines. Ronco also testified that on Wednesday morning, April 11, the day prior to Marcotte's discharge, Scott had told him that he would give Marcotte one more chance, and that unless Marcotte "cooperated" he would be replaced. Admittedly, this warning was never transmitted to Marcotte by Ronco. When asked why he did not, Ronco first testified it slipped his mind, and then testified he thought Marcotte would cooperate that night. When asked why he did not tell Marcotte when the latter allegedly continued in his refusal to cooperate on Wednesday night, Ronco testified, "Because I just didn't that's all." Additionally Ronco testified on direct examination that on Thursday morning, April 12, just before Marcotte's discharge, he again reported to Scott that Marcotte had refused to start up frames after doffing. However, on cross- examination, Ronco testified that the only conversation he had with Scott was when the latter advised him that he had fired Marcotte. Still later, Ronco admitted error in that testimony and said he spoke to Scott twice Thursday morning, once about 6:30 a.m.,14 when he reported that Marcotte had not "done any different" the previous night, and again later, when Scott told him Marcotte had been fired. More- over, notwithstanding Ronco's testimony that Scott had said one day earlier that he would give Marcotte "one more chance" to cooperate, and that unless he did, he would be replaced, and Ronco's alleged subsequent report to Scott regarding Marcotte's continued lack of "cooperation," Ronco nevertheless professed a lack of knowledge "that he (Marcotte) was going to be discharged," and expressed "surprise" to one of Respondent's employees that Marcotte was dismissed. Ronco admitted that before Ramsay's absence, Marcotte had helped start up frames after doffing. and had never before demurred regarding doing so. Ronco was unable to give any explanation for Marcotte's alleged refusal to do starting-up work during Ramsay's absence. Moreover, Respondent's witness, Goupil, testified that Marcotte had ex- 12 Scott normally reports to work about 7 a.m. and leaves the plant about 4:15 or 4.30 p in. The third shift in the spinning department works from 11 p in to 7 a in 13 As noted above, this was contrary to Scott's testimony that Ronco had reported that Marcotte was refusing to doff any spinning frames other than those specifically assigned to him. 34 As noted above, this is before Scott normally arrives at the plant GONIC MFG. CO., DIV. OF HAMPSHIRE WOOLEN CO. 209 pressed a willingness to help all he could under the circumstances, that Marcotte had helped him with doffs, but had "no time" to help start up frames after the doff .1.5 On the entire record, I am persuaded that to whatever extent Marcotte failed to help start up frames, it was not based on a refusal to do so, or from lack of "coop- eration," but from lack of time within which to perform this normally regular duty of fixers. Moreover, in the light of all the above inconsistent, contradictory, and confused testimony of Ronco, the conflict between his testimony and that of Scott over the nature of Marcotte's alleged lack of "cooperation," and the comparatively short time required to start up frames after doffing, I do not regard the testimony of Ronco and Scott concerning their reasons for Marcotte's dismissal as worthy of credence. D. Concluding findings The General Counsel suggests that because the reasons advanced for Marcotte's discharge are suspicious, and as I have found, not worthy of belief, his termination must have been motivated by the increased tempo of the Union's campaign in March 1962, Respondent's knowledge of Marcotte's leading role as one of the Union's organizers, and Respondent's hostility to the Union. There is some merit in this contention. The discharge of Marcotte, an admittedly capable employee, without warning or notice, and at a time when Respondent was not only short- handed in the spinning department, but had no knowledge that it would be able to secure a replacement, is undoubtedly suspicious, and suggests the inference that the motivation for Marcotte's discharge may have been Respondent's hostility to the Union, and Marcotte's leading role in the Union's campaign. However, suspicion is not an adequate substitute for evidence. The General Counsel has the burden of proving by a preponderance of the testimony in the whole record that antiunion considerations constituted the motivation for Marcotte's dis- missal. There is ample support in the record for the finding, which I make, that Respondent was hostile to the union organization of its employees. I base this finding on (1) Foreman Lovely's statement to Marcotte, at the time of the latter's layoff in September 1961, that "unionism . . . we can't have," and (2) on Super- intendent Lane's statement to Marcotte in December 1961, that Respondent's owner was "dead set against unions," and that he would shut the plant down rather than "let the union run this mill." Moreover, the said conversation between Superin- tendent Lane and Marcotte further supports the finding, which I make, that at least by December 1961 Respondent had knowledge that Marcotte was an active or- ganizer on behalf of the Union. Marcotte was then working at the job of installing new spinning frames in the spinning department. That job was completed in January 1962. Thus, it is quite obvious that if Respondent was disposed to discourage the union activities of its employees by discrimination against its leading advocate, it would likely have done so by the simple expedient of not offering Marcotte further employment at the conclusion of his temporary job. The record does not show that Marcotte was any more active on behalf of the Union at the time of his discharge than he was at the time when Lane spoke to him about his union activities. Although the Union, in March 1962, distributed literature to employees by mail, and at the plant entrance, Marcotte did not participate in the distribution at the plant gates, and there is no evidence that Respondent had any knowledge of the extent of his participaion in the Union's mailings to employees. Nor is there any testimony either that the Respondent was any more concerned with the Union's literature distribution in March 1962 that it was with the Union's campaign prior to that date. Significantly, there is no evidence of any expression of hostility to the Union on the part of any of Respondent's supervisors after December 1961, which as noted above, was before Marcotte was given a better job. On the foregoing record, despite the suspicions raised by my disbelief of Re- spondent's asserted reasons for Marcotte's discharge, I am not fully persuaded that the General Counsel has sustained his burden of establishing, by a preponderance of the testimony, that the motivation for Marcotte's discharge was his advocacy of the Union. Accordingly, I shall recommend the dismissal of those allegations of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. 15 As noted above, Goupil also testified that there was "nothing to" starting up, it was practically "automatic " 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act.16 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By interrogating employees regarding their union activities, and by threatening to shut down its plant rather than submit to union representation of its employees, the Respondent has interfered with , restrained , and coerced employees in the exercise of their rights under the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 3. The General Counsel has failed to establish by a preponderance of the testi- mony in the record that the Respondent's discharge of Robert Marcotte was moti- vated by antiunion considerations. 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 the Respondent, Gonic Manufactur- ing Company, Division of Hampshire Woolen Company, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees regarding their membership in, or activities on be- half of, a labor organization in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (b) Threatening employees with shutting down its plant or with other economic sanctions to discourage their union affiliation. (c) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist Textile Workers Union of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, to refrain from engaging in such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its plant at Gonic, New Hampshire, copies of the attached notice marked "Appendix A." 17 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the First Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps it has taken to comply herewith.18 11 Because the interrogation and threat, which I have found to be violations of Section 8(a) (1) of the Act, were engaged in by a person In the higher echelons of Respondent's management, and directed to the leading advocate of the Union in Respondent's plant, and in view of the serious nature of the threat to shut down the plant rather than be subject to union representation, I do not regard this as a case where it can appropriately be said that a remedial order Is not required because of the isolated nature of the violation. 17 In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." ,s In 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." RESEARCH DESIGNING SERVICE, INC. 211 I further recommend the dismissal of the complaint insofar as it alleges that by discharging Robert Marcotte, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order 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 coercively or unlawfully interrogate our employees regarding their union membership , activities, or desires. WE WILL NOT threaten our employees with shutting down our plant or with other economic sanctions to discourage their union affiliation or adherence. WE WILL NOT in any like or relatated manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist Textile Workers Union of America, AFL- CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. All our employees are free to become or remain or to refrain from becoming or remaining members of Textile Workers Union of America , AFL-CIO, or any other labor organization. GONIC MANUFACTURING COMPANY, DIVISION OF HAMPSHIRE WOOLEN 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, 24 School Street, Boston 8, Massachusetts , Telephone No. Lafayette 3-8100, if they have any questions concerning this notice or compliance with its provisions. Research Designing Service, Inc. and Local 155, International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America (UAW), AFL-CIO. Cases Nos. 7-CA-3623 and 7-CA-3623(2). March 7, 1963 DECISION AND ORDER On October 10, 1962, Trial Examiner John H. Eadie issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that the Re- spondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. 141 NLRB No. 19. 708-006-64-vol. 141-15