Sweetwater Rug Co.

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sweetwater Rug Company and Textile Workers Union of Amer- ica, AFL-CIO-CLC. Case No. 10-CA-5140. August 27, 1964 DECISION AND ORDER On October 31,1963, Trial Examiner Laurence A. Knapp issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 Fanning, Brown, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner 1 with the following modifications and additions: - The Trial Examiner inadvertently omitted the following findings of fact regarding the business of the Respondent and the labor orga- nization involved. 1 In the absence of exceptions thereto, the Board adopts pro forma the Trial Examiner's findings that the following allegations of the complaint should be dismissed : that Super- visor Clark engaged in unlawful interrogation of employee Dean on October 6 ; that Fore- man Worley engaged in coercive interrogation of employee Headrick around October 19 ; that Superintendent McMillan and Quality Control Supervisor Sloan made coercive threats in talks to employees around October 8 ; that Supervisor Clark made a coercive statement to employee Allen on October 6 in Pierce's Cafe ; that Superintendent McMillan by re- marks to night -shift employees on October 8 encouraged them to bargain individually rather than through the Union ; and that Caudill was discharged on October 8, 1962, for discriminatory reasons The Trial Examiner found that the singling out of Lewis from a group of employees to warn him that he was not to talk union on company time by Forelady Haven in - October 1962 under the circumstances "was to apply a rule of conduct in a discriminatory fashion," and that the driving by the union hall on October 14 by Foreman Worley constituted sur- veillance of union activities. The Respondent in its exceptions and brief contends that such activities by its supervisors were not violative of Section 8(a) (1) of the Act. The Respondent also takes exceptions to findings made by the Trial Examiner in "Appendix II: Respondent's Rules " Although the legality of the Respondent's conduct in these respects is not free from doubt , we find it unnecessary , and do not pass upon these issues as our findings would in any event be cumulative and would not affect our remedy being ordered herein. The only exception by the General Counsel made to the Trial Examiner 's findings was his failure to find that the distribution of an antiunion document entitled "A Fairy Tale" by Quality Control Supervisor Sloan about October 15 constituted an unlawful threat. For reasons similar to those stated above , we find it unnecessary, and do not pass upon the merits of the Trial Examiner 's findings in regard to this issue. 148 NLRB No. 54. SWEETWATER RUG COMPANY 499 Sweetwater Rug Company is a Georgia corporation engaged in the manufacture of tufted rugs and carpets. During the past calen- dar year, Sweetwater Rug Company sold and shipped finished prod- ucts valued in excess of $50,000 directly from its Ringgold, Georgia, plant to customers located outside the State of Georgia. Accord- ingly, as the complaint alleges, and the answer' admits the above facts, it is hereby found that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, as amended. Additionally, we find that Textile Workers Union of America, AFL-CIO-CLC, is a labor organization within the meaning of Sec- tion 2 (5) of the Act, as amended. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National, Labor Relations Board hereby adopts as its Order, the Order recommended by the Trial Examiner, and orders that the 1Z`espondent, Sweetwater Rug Company, its- officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications: The next to the last indented paragraph of the notice above the signature is hereby deleted and the following paragraph substituted: WE WILL NOT confer, or hold out the possibility of conferring, any benefit upon our employees for the purpose of thwarting their exercise of, or deterring them from exercising, any of the rights of employees specified in Section 7 of the Act; or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, an4 to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. Add to paragraph 2(a) of the Trial Examiner' s Recommended Order the following additional sentence : "Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges duly filed, the complaint herein issued on December 13, 1962. Respondent answered , admitting the jurisdictional allegations but entering a gen- eral denial of the unfair labor practices charged. The case was heard before Trial Examiner Laurence A. Knapp at Dalton, Georgia, during the period Feb- ruary 5 through 15, 1963. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint as issued charged Respondent with various forms of conduct alleged to violate Section 8(a)(1) of the Act, and with the discharge of two em- ployees allegedly in violation of Section 8(a) (3) and (1). At the hearing, various additional acts of Respondent not alleged in the complaint were litigated, some as claimed unfair labor practices and others as claimed antiunion acts of Respondent put in issue, not as additional unfair labor practices, but as "background" facts indicative of motive. With much of the General Counsel's case as put in not charged in the complaint and, with one exception, not made the subject of formal amendments to the complaint at the hearing, a complicated and at times confusing record resulted. By the same token, the task of identifying all these additional issues and of understanding to what end the evidence concerning them was being adduced, upon a transcript of testimony extending beyond 1,500 pages, has been a time-consuming and difficult one.' Briefs filed by counsel for the General Coun- sel and for Respondent have been considered. On the entire record, as corrected by a joint stipulation, I approve and make'a record as my Exhibit No. 1,2 and my observation of the witnesses and judgments as to their credibility based on this demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT, AND THE LABOR ORGANIZATION INVOLVED As alleged in the complaint and admitted by Respondent , it is engaged in com- merce, and the Charging Party, Textile Workers Union of America , AFL-CIO-CLC (hereinafter called the Union ) is a labor organization, within the meaning of the National Labor Relations Act, as amended , hereinafter called the Act. Respondent, a rug manufacturer, has two plants at Ringgold, Georgia, and at the time of the hearing had about 550 employees . Plant No. 1, the older and smaller one, is not used for production operations but apparently mainly for gen- eral offices, some shipping department and storage purposes , and the like . It lies on U.S. Highway 41, some 200 yards from the shopping district of Ringgold , a small town of about 1 ,000 inhabitants. Plant No. 2 opens on a side road off U.S. Highway 41 , and is about 300 to 400 yards from the shopping district. At this plant, with which this case is mainly concerned , production operations are concentrated , with two-shift operation at times material to this case . Principal departments at this main plant, so far as revealed by the evidence, include the machine room, the roller-coater or latex department, the cut-rug department , the latex compound department, the rolled goods shipping department, the cut-rug shipping department , and the receiving department. . Officials and supervisory employees of Respondent who figure significantly in this case include : Manager (or General Manager) Sam Amsterdam, top official in charge; Harry B. McMillan , superintendent in charge of all night-shift operations ; Wilbur Plott, foreman, roller-coater department, day shift, plant No. 2; Carl Worley, fore- man, 'roller-coater department , night shift, plant No. 2; Mrs. Elizabeth Haven, fore- lady, cut-rug department, day shift, plant No. 2; Joseph Silvey, foreman , cut-rug department, night shift, plant No. 2; James H. Clark foreman , receiving depart- ment, plant No. 2; Mrs. Betty Smith , forelady, cut-rug shipping department, plant No. 2; Wilbur Whaley, foreman , machine room, night shift, plant No. 2; and Jack Sloan, supervisor, quality control operations, plant No. 2. The foregoing officials identified with plant No. 2 constitute the bulk of the supervisors having to do with production operations at that plant . The bulk of the unfair labor practices involved in this case mainly affected or involved em- ployees and supervisors on the night shift at this particular plant. 1 Had Respondent's counsel been made aware prior to the hearing that these many addi- tional issues were to be litigated in one form or another, his' opportunity to prepare for them might well have shortened the hearing and produced a more orderly record The same desirable results might well have been fostered had Respondent's defenses to the alleged discriminatory discharges, and particularly its heavy reliance on the "rules" subject, been clearly made known to counsel for the General Counsel prior to the hearing, or by a clear statement by Respondent's counsel at the outset of the hearing. 2 There are other numerous and inadvertent errors in the transcript of testimony, but since they are either apparent or harmless I do not formally correct them. SWEETWATER RUG COMPANY H. THE UNFAIR LABOR PRACTICES Setting of the Case 501 Northern Georgia is a principal center of the tufted carpet industry, with many plants located in and near Dalton, Georgia. Respondent's plants at Ringgold are within this area of industry concentration. Sometime in early 1962 the Union inaugurated a drive to organize the correspond- ing carpet industry workers, establishing headquarters at Dalton for this purpose. From June onward, this campaign was under the general coordinating direction of Scott Hoyman, an International representative of the Union, assisted by other In- ternational representatives, including Lloyd Gossett. Principal features of the over- all campaign were distribution of various forms of union literature containing union-membership and representation-authorization cards, and a twice-weekly radio program broadcast from Dalton. Literature distributions were made at from 15 to 20 textile plants in the area, and campaign meetings for interested employees were held at the union hall in Dalton. The Union carried out this campaign with particular intensity at the plants of two companies, those of Respondent at Ringgold and that of an associated com- pany in Dalton described in the record as "Carolyn Chenille." Beginning either in late July or early August, and continuing to the time of the hearing, union repre- sentatives distributed literature about twice-monthly at the entrances to Respondent's plants. These distributions normally occurred, at shift-change_ time. About nine different pieces of literature were employed, some of which dealt specifically with employment conditions at Respondent's plants. These mass distributions were observed by Respondent's supervisors, and on some occasions General Manager Amsterdam and lesser supervisors took copies of the literature from the union repre- sentatives handing it out. There was also considerable direct solicitation of in- dividual employees-at their homes, within Respondent's plants, and elsewhere- carried on by employees acting on their own or, in the case of some nonplant solicitations, in the company of union representatives. Of two employees appar- ently most active in this regard (and whose' discharges are at issue in this case), one testified that he handed out some 100 to 130 of the Union's combined, membership and representation-authorization cards to employees. The other testified that he urged union affiliation upon upwards of 200 employees, and did so in restaurants, stores, on the streets, and at employees' homes .3 Various of Respondent's em- ployees attended two campaign meetings held at the union headquarters in. Dalton;_ the first on Sunday, October 14, and the second on Sunday, November 11. The Union's campaign reached its height during the months of September, Octo- ber, and November, 1962, and unquestionably registered a major impact upon Re- spondent's employees and Respondent's officials, and, indeed, in the entire small community of Ringgold-a community in which Respondent's operations appear to provide the dominant source of industrial employment. As later indicated in greater detail, the progress of the Union's drive, the pros and cons of representa- tion by the Union, the attitude of particular employees and supervisors toward the Union, and related topics became the subject of widespread interest and atten- tion among and between Respondent's employees and supervisors. Indeed, that the union drive became a significant event in' the life of the little Ringgold com- munity is manifested by the description volunteered by Respondent's Night Super- intendent McMillan, to the effect that one could not even enter a drugstore in Ringgold without finding that the Union was being talked about. The signal importance of the union campaign in the community is further brought into focus by some description of certain activities of Respondent which admittedly or obviously were responsive to the Union's drive, without at this point dealing with the legality or illegality of these reactions. Various of Respondent's supervisory officials initiated or participated in conversations with employees concerning the Union and the possible advantages or disadvantages of unionization, concerning the corresponding inclinations or activities of individual employees, and the like. Two of Respondent's supervisors engaged in some surveillance of the first union meeting, attempts were made by Respondent's supervisors to ascertain what occurred at that and the second meeting, and Respondent's chief official, Plant Manager Amsterdam, put under observation a roadside meeting between two union officials 3 While I consider these numbers exaggerated, I credit this testimony to the extent of establishing that there was some direct solicitation by employees of Respondent along the lines indicated by the testimony of these two witnesses. 0 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and an employee. At a series of meetings of its employees, by distribution of literature to them, through a notice posted on its bulletin board, and otherwise, Respondent made clear its opposition, as expressed in the notice, "to a union coming in this plant." 4 Other coincidental actions of Respondent include its announcement of a paid -vacation program and the discharge of two union adherents, but whether these actions were responsive to the union campaign raises the question of their legality. They are mentioned here only because of their coincidental character. Respondent's own recognition of the importance and seriousness of the situation is indicated by the fact that at a time which must have been in late November or early December, and hence subsequent to the bulk of the reactive actions of its officials and supervisors, Respondent's counsel instructed the day-shift supervisors concerning various forms of conduct violative of the Act in which they should not engage. Similar instructions were conveyed to the night-shift supervisors by Amsterdam and McMillan. In this connection, at the hearing various of Respond- ent's supervisors made no effort to deny some of the obviously illegal conduct at- tributed to them, explaining that they were then unaware that what they had done violated the Act. It is out of happenings like these, and the considerable engagement of forces they engendered, that this case arose. I turn now to findings concerning the various items of Respondent's alleged illegal conduct put in issue in this case. A. Interrogation of employees Paragraph 7 of the complaint charges unlawful interrogation of employees rela- tive to their union membership, activities, desires, or those of other employees, in some seven instances. Other, instances, indicated below, were not charged in the complaint but were litigated at the hearing without objection on this score by Respondent's counsel. 1. By Forelady Haven a. Haven, forelady in the cut-rug department on the day shift, had on her staff employee Ronald Caudill. Caudill testified that about October 2 Haven asked him if he "was for" the Union and he admitted he was. Haven admitted having had a conversation with Caudill on this occasion but described it as one in which she merely warned him against talking union on working time, and denied that she had questioned Caudill as he testified. In the light of other related activities by Haven set forth below, I credit Caudill and find that she did inquire concerning Caudill's affiliation with or attachment to the union cause, interrogation plainly unlawful under Section 8(a) (1). b. In another instance not alleged in the complaint but fully litigated at the hear- ing, Ronald Caudill testified that following the union meeting of November 11, ' This notice (Respondent's Exhibit No. 16), posted in the latter part of October, reads as follows (omitting Respondent's letterhead) TO ALL EMPLOYEES Since the subject of unions has come up, some of you have been asking questions in regard to the following matters. We have decided to state the company's position on these subjects as clearly as we can for everybody alike. 1. We are definitely opposed to a union coming in this plant because we sin- cerely believe you are better off without a,union at our plant, and that you always will be better off without a union here. 2. In the meantime we would like to make it clear that under the laws of the United States, and under the laws of Georgia it is not necessary, and it is not going to be nucessary (sic], for anybody to belong to the AFL-CIO or any other union in order to work for this company. 3. Those who might join or belong to the union are not going to get any ad- vantages or any preferred treatment of any sort over those who do not join or belong to any union. 4 Whoever Is, caused trouble in the plant, or put under pressure to join the union should let the company know, and we will see to it that this Is stopped. 5. No person will be allowed to carry on union organizing activities in the plant during his working hours.' Anybody who does so and thereby interferes with his own work or the work'of others will be discharged. SWEETWATER Rua CORPORATION, ( Sgd.) By: SAM AMSTERDAM. 0 SWEETWATER RUG COMPANY 503 Haven asked him whether very many employees had attended; that he replied that he did not know because he had not been present; and that Haven replied she knew he had attended. In her testimony, Haven stated that she did question Caudill as to his presence, and that after he had denied attending, she told him she believed he was present. In disputing with Caudill his claim of nonattendance, Haven ex- plained that she had had "rumors" from other employees in her department that Caudill had attended (although, in fact, he had not). By way of further explanation, Haven stated that she did not know, at the time of this incident, that she was not supposed to address such questions to employees, but that she learned to the contrary at the meeting of supervisors addressed by Respondent's counsel, Loric A. Brooks, and went on to describe the corresponding admonitions expressed by Brooks. Her questioning in this instance was plainly in violation of Section 8(a)(1), and the fact that she did so at this rather late date tends to confirm that she engaged in the earlier instances of similar interrogation dealt with above and below. c. Employee William V. Lewis testified that on one occasion in October (in a larger conversation about the Union dealt with in other respects below) Haven asked him what he knew about the Union. Haven admitted that she had a conversation with Lewis about the Union on this occasion but testified that she did not recall whether she asked Lewis what he "thought" about the Union. Based on this lack of recollection, the fact that the Union formed the subject of the entire conversation, Haven's inquires of Ronald Caudill on these lines, and her admission that Lewis told her he did have a union card, I find that Haven did question Lewis in a fashion designed to ascertain whether he was a union supporter. While not charged in the complaint, this incident was fully litigated at the hearing, and thus warrants the finding I make that this questioning violated Section 8(a) (1). 2. By Foreman Worley a. Worley, foreman of the roller-coater department on the night shift, admitted that on October 15, the day following the first union meeting, he put to employee Richard Clark questions by which he elicited from Clark information concerning how many employees were at the meeting and what had occurred there. He pleaded ignorance of the illegality of such questioning, stating that he was later advised by Amsterdam not to question or threaten employees or promise them any benefits. This incident, charged in the complaint, constituted interrogation forbidden by Section 8 (a)(1). b. The complaint charges further incidents of forbidden interrogation by Foreman Worley, namely, on or about October 9 and 19 and November 1. I cannot detect in the lengthy record of testimony any proof offered by the General Counsel in relation to the October 9 and November 1 dates. Possibly referable to October 19 or Novem- ber 1 is testimony by employee Mark Headrick that sometime between the two union meetings, Worley called him away from his work and "asked him about the Union." But consideration of Headrick's entire testimony indicates that the witness did not mean to indicate, by this bare and otherwise unexplained phrase, that Worley in fact questioned him concerning his affiliation with or attitude toward the Union. On the contrary, the record indicates, as was my impression at the hearing, that Headrick used this phrase merely as a way of referring to the fact that a conversation took place between him and Worley in which, in undefined respects, the Union figured as the central subject. While in this conversation Headrick told Worley .that Worley knew he was a "union" man when Worley hired him and that he still was, it appears that Headrick volunteered these statements as part of the pro and con discussion taking place, and not in response to any corresponding questioning by Worlev. Such questioning would have been unnecessary in the light of the knowledge of Headrick's union position which, according to Headrick and Worley. Worley already possessed. Hence, if this is the General Counsel's proof in regard to the alleged October 19 incident, I find it fails to establish that coercive interrogation occurred. 3. By Foreman Silvey a. About the first of October, Foreman Silvev asked employee Marvin Lonewith of his staff what Longwith thought about the Union. Lonewith replied the Union (or nnions) had good and bad features. and Silvey stated that the Union (or a union) was not anything "that we needed." At the hearine, Silvev agreed with Lonewith's account except that he told Longwith that he (Silvey) "didn't think" ,a union was anything "we" needed. I find Lonewith's version the correct one. While not alleged in the complaint as an unfair labor practice, this incident was litigates and plainly represents an interrogation unlawful under Section 8 (a)(1), as I find. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. During the night shift on October 15, Silvey asked Mrs. Betty Robbins, another employee in his department, whether "we"-meaning employees who had attended the first union meeting the day before-felt "we were gaining much ground." 5 ,Silvey further asked Robbins whether Robert Allen was in attendance and went on to 'surmise that he, Silvey, was probably "raked over the coals" if Allen was present.6 In response to these questions, Robbins told Silvey that Allen was at the meeting and had been told to wait until the end of the meeting if he (and another dischargee involved in this case and also present) wished Ito talk to the union officials. She also told Silvey that the matter of gaining ground he had asked about was not discussed' "too much" at the meeting. Silvey confirmed at the hearing Robbins' account of his questioning with respect to. Allen, admitting he had heard that Allen was present at the meeting and "I asked her." I find that he interrogated her as she testified and that this questioning, alleged in the complaint, violated Section 8(a) (1). c. Employee Longwith with whom the record establishes that Silvey had various discussions on union matters, testified that on the same night that Silvey interrogated Robbins, or the succeeding evening, Silvey likewise asked Longwith what went on at the union meeting held the previous day. That Silvey made inquiries seeking the names of employees present is obvious from Longwith's further testimony that after Silvey "mentioned something about" Betty Robbins and Rudolph Robbins, he, Longwith, told Silvey, "I was the only one I was gonna tell that was at that meeting." Longwith, in addition to admitting his attendance, told Silvey that there was no card signing at the meeting and that a man from Atlanta had made a talk. For reasons set forth in the following note, I find the facts concerning, this ques- tioning by Silvey to be as set forth above, and that they are entitled to considera- tion in relation to the attitude of Respondent and Foreman Silvey toward union membership and activities on the part of Respondent's employees, without finding that Respondent thereby committed an unfair labor practice.? 4. By Foreman Whaley a. About October 1, Wilbur Whaley, machine room foreman, engaged in con- versation with an employee under his supervision named Paul Shields. Accord- ing to Shields, Whaley first asked Shields whether he thought he was bettering himself if "we had" the Union, to which Shields replied he had his opinon and Whaley had his. Then, according to Shields, Whaley asked, "Do you know who's giving out the union cards?" To this Shields responded he did not know and it was not any of his (Shields') business, whereupon Whaley said, "Gordon Dean is one, don't you think" and Shields replied he did not knows Whaley was interrogated concerning this testimony and after first stating "If r remember mentioning union cards to anybody it's more than I know," went on to deny, under repeated questions by Respondent's counsel, that he had asked Shields who was handing out the cards or had ever mentioned such a subject to anybody. I find the facts to be as Shields testified and reject Whaley's denials, 6 Silvey's question implied his knowledge that Robbins was a union adherent and that she had attended the meeting How Silvey had acquired this knowledge was not developed in the examination directed to this incident. However, it is clear from Silvey's extensive conversations with employees on union matters and his repeated manifestations of interest in the identity of union adherents and the nature of their union activities , that he must have possessed a considerable body of knowledge concerning employees who were union, supporters. e Allen, an active union proponent, was discharged by Silvey and Night Superintendent McMillan'a few days before this questioning 4 This particular interrogation by Silvey is not alleged as an unfair labor practice in the complaint, and while counsel for the General Counsel stated at the hearing that he would later offer an amendment relative to this specific interrogation he never did so. At a' later point, and with counsel for Respondent twice indicating that he had no objection to consideration of such evidence as background matter; counsel for the General Counsel stated that he offered the entire surrounding line of testimony given by Longwith con- cerning Silvey ( of which this questioning was merely, one of various incidents ) only as evidence of Respondent's antiunion motivation . The Trial Examiner admitted it as such, and on this basis finds the facts as stated in the text without finding the consequent com- mission of an unfair labor practice. 8 During his cross-examination Shields stated that after inquiring who was distributing the union cards, Whaley added , "Them kind usually leave one by one." For reasons stated in the text I find that Whaley made this statement and deal with its character as an unfair labor practice in section C, in/re. SIVEETWATER RUG COMPANY 505 based both on Whaley's less favorable demeanor on the stand and on aspects of his testimony on various other matters which leave me with reservations concerning his reliability as a witness on points of fact material to the charges in this case. This incident was not alleged in the interrogation paragraph of the complaint nor was it made the subject of an amendment at the hearing. It was, however, fully litigated without objection on this score. Accordingly, I find that by Whaley's questions as to who was circulating the union membership cards, Respondent violated Section 8 (a)( 1 ) of the Act. b Shields further testified that toward the end of October, Whaley came by and remarked to him that he, Whaley, thought the Union had died down and asked Shields what he thought. Shields testified that he told Whaley, "Since you all have given us our paid vacation," maybe they were not hearing as much about the Union .9 I find that this conversation, which Whaley testified could have taken place but he did not remember it, did occur. This interrogation was not alleged in the complaint or inserted by formal amendment, but was clearly litigated. While not the most trenchant form of interrogation (and while perhaps not worthy of cog- nizance if it stood alone), in the context of Respondent's many efforts to keep abreast of the rise or fall of the Union's fortunes, this particular questioning as to the then status of the union drive takes on a special significance. Accordingly, I find a violation of Section 8(a)(1) in this instance.io B. Surveillance of union activities 1. By Foreman Whaley Testimony offered by the General Counsel and admitted by Whaley establishes that Whaley, knowing in advance that the first union meeting was to be held, took an automobile ride with his wife to Dalton on that Sunday afternoon. In Dalton, he drove slowly by the union headquarters in order to see, as he put it, "What kind of a crowd they had." ii 2. By Foreman Worley According to proof offered by the General Counsel, Worley drove by the union hall in the course of the same union meeting. Although called as a witness by Respondent, Worley was not questioned concerning this incident. 3. By General Manager Amsterdam Respondent's plant No. 1 is located at the southern edge of the town of Ringgold and just off (to the west) of U.S. Highway 41, the principal highway between Ringgold and Dalton. About 100 yards to the south of the entrances to this plant, and adjoining and paralleling the west edge of the highway is a narrow road- side parking area, a "wide space in the road." About 5 p m. on October 16, 2 days after the first union meeting, Union Repre- sentatives Hoyman and Gossett, with employee William Lewis, were seated in Gossett's car parked in this roadside area discussing union matters. This meeting had been prearranged for the end of Lewis' day shift. While so engaged, Gen- eral Manager Amsterdam drove by going south and looked in their direction. In a few minutes, Amsterdam returned driving north' at a slower pace, looking back over his shoulder toward the union car as he passed it. About 50 yards to the north, Amsterdam halted his car on the east shoulder of the highway for some 10 minutes, from which spot he looked backward at the union car. He then drove on to the north. Some minutes later, he returned, parking his car at the same northern spot as before but, of course, this time facing in the direction of the union automobile. Amsterdam remained there for some minutes looking in the direc- tion of the union group. The latter, with Hoyman at the wheel, then drove up beside the Amsterdam car, where Hoyman asked Amsterdam if he was aware that -On October 25, Respondent announced a program of paid'vacations for'Its employees, effective in 1963 (see section E, infra). ' 10 In concluding this section of my report on interrogation, I find that the allegations of the complaint that Supervisor Clark engaged in unlawful interrogation. (of employee Dean) on October 6 are not established by the pertinent testimony (that of Allen, Dean, and Clark) While during the incident described in the testimony; Dean was'asked how he felt about the Union, I am not siitisfied that this question was put to him by Clark. 11 Whaley further testified that he subsequently was instructed by Night Superintendent McMillan not to engage in such conduct. How and when McMillan learned of Whaley's surveillance'was not touched on at the hearing. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spying on union activity was against the law. Amsterdam said he was not. There- upon Hoyman reiterated that such conduct was illegal and said the Union would file corresponding charges. Amsterdam said he was not a lawyer, and after some conversation as to who was going to leave first, Amsterdam stated he would and drove off. Amsterdam, while conceding his general automobile movements as described by the union group, in effect denied any improper surveillance on his part. He testified that earlier that afternoon a supervisor had told him some union representatives were outside the plant. Beyond telling this supervisor, a lady, to be sure that these officials were not on company property, he kept on with his work in plant No. 1. Later, however, when he had occasion to drive to plant No. 2 (in the direction opposite to the roadside area), he engaged in the driving and parking activity previously described to make sure that no union representatives were distributing literature or meeting with company employees "on company property." While he noticed that there were two men in the car as he first drove south, he stated that he did not recognize them then or when he first parked to the north. Seeing no "activity" he then drove to plant No. 2, met briefly with some supervisors on company business, and on his return stopped again at the northern spot to see if there were any activities "on the front of our property." While parked there, the union group drove up and the remarks previously described concerning spying were exchanged. I am not persuaded by Amsterdam's assertions of legitimate intentions. The road- side area where the union group's car was parked is not company but public property, considerably removed from the entrances to plant No. 1, and offers no access to company property. The company property is accessible from the highway only at the plant entrance area (100 yards to the north) and it is only at this entrance area that, so far as the record shows, any previous union activity, consisting of distributions of literature, had occurred. Moreover, it was this "front" entrance area, and the inner parking lots reached through these entrances, that Amsterdam, according to his own testimony, had in mind putting under observation. Amsterdam could have made corresponding observations merely by walking a brief distance outside the plant into the entrance and parking areas, or by driving through them. The quite different and, under the circumstances, prolonged observations which I find he made of the union group seated in a car 100 yards` away were unsuited and unnecessary to accomplish his declared purpose.12 I find Amsterdam's version implausible for the further reason that he denied having recognized any occupants of the car until, at the last stage of this incident, they drove up beside him. But Amsterdam had seen both Hoyman and Gossett on previous occasions of literature distribution at plant gates, and on some of those occasions had stopped to take literature from them and to speak to one or another of them while doing so. In these circumstances, I find it incredible that, in twice driving relatively slowly by while they were parked a few feet away in the roadside area, and with an unobstructed view of them, he failed to recognize them. Indeed, given his asserted purpose, to uncover any "activity" by union officials. the only sensible interpretation of his parking activities is that he did recognize them, and thereupon kept them under observation for the appreciable periods that I find he did 13 12 In this connection, Amsterdam stated that the one spot from which the entire entrance area could be observed was from directly across the highway, I e, on Its eastern side. But according to the General Counsel's proof, which I credit, the location where Amsterdam twice parked was some 50 yards to the south of the plant entrance area At this point, according to Amsterdam 's own description of the peculiar layout of the plant entrance area, he could have observed, at most, only a small part of that area 18 One more aspect of this incident warrants mention for the light it casts on Respond- ent's attitude toward its employees found to be in contact with union officials During Amsterdam's second pass by the union car, employee Lewis ducked down in the car in order not to he seen , but sat in normal position when the union group drove up to Amsterdam's car. Lewis, fearful of adverse consequences , approached Amsterdam the next day while Amsterdam was in his department , gave Amsterdam a false explanation as to the reason for his presence with the union officials, and, as Amsterdam put it, "apologized" to Amsterdam. Immediately following this encounter, Amsterdam engaged in a conversation with Lewis' forelady, Haven, who had herself learned in some way of Lewis' Involvement and, according to Amsterdam . "I just cautioned her don't do anything, the only thing you are concerned with is that he performs his job, that is all , forget about it." I see no reason for Amsterdam 's caution to Haven (whose concern with the union activities of Lewis and other employees is,amply demonstrated by the record) unless she had raised with Amsterdam some possibility of disciplinary action against Lewis because of his asso- ciation with the union cause as evidenced by the roadside incident. SWEETWATER RUG COMPANY 507 Otherwise, he would have had no reason to consider them as other than itinerant travelers who were using the roadside area for its normal sojourning purpose. The three foregoing incidents, alleged in the complaint, each involved unlawful surveillance of union activities by Respondent and I so find. 4. By Foreman Silvey a. Employee Lewis testified that at some point, apparently in early November, he and another employee were talking with Union Representative Gossett at the "Shop- Rite" supermarket in Ringgold. While the three were talking, Silvey emerged from the market and satin his car for about 5 or 10 minutes watching the threesome. Silvey did not testify concerning this incident. While for reasons set forth in the accompanying note, I do not find that this conduct, litigated at the hearing, constituted an untair labor practice, I do find as a fact that Silvey did engage in the surveillance attributed to him, and that this fact may be considered as evidence of Silvey's attitude personally, and that of Respondent gen- erally, toward the union membership, activities, and desires of its employees.14 b. As this report shows, Foreman Silvey made employee Longwith a point of re- peated contact in the extensive concern and interest Silvey devoted to union affairs, including the union activities of Longwith and other employees. A further such event, classifiable under the above heading, is now to be considered. Longwith testified that, shortly before the union meeting of November 11, Silvey called him off to one side from where he was working, and told him that Night Superintendent McMillan wanted Longwith to ascertain and report to them what transpired at the forthcoming meeting. Longwith replied that he was not going to the meeting, telling Silvey that "you all didn't like it" when he went to the first one. Later that night, Longwith testified, Silvey "cornered" him again on this subject, inquiring whether there was any reason why he could not go. Longwith replied there was no reason except he was not going. On- the Monday night following the meeting, Silvey asked Longwith if he had attended and Longwith replied in the negative, offering excuses concocted to explain his nonattendance. Silvey then told him that McMillan was not going to like this. Longwith's testimony is admitted to be correct by Silvey. In addition, Silvey made the further contribution that he and McMillan had talked about the prospective meeting, ,that McMillan had asked him if he knew any employee who was going, that he told McMillan that Longwith might be going since Longwith had attended the first meeting, and that he would see Longwith. So far as McMillan's testimony went, it confirmed that of Silvey and Longwith. While not alleged in the complaint as an unfair labor practice, this incident of importuning Longwith to engage in antiunion espionage as an agent of Respondent was fully litigated at the hearing. Whether viewed as attempts at espionage, or as attempts to induce an employee to act as an informer, Respondent's conduct was an aggravated form of interference, restraint, and coercion violative of Section 8(a) (1), and I so find. C. Threats of discharge or of other reprisals 1. By Forelady Haven a. In an incident previously dealt with in relation to its interrogation aspects (see section A, 1, a, supra), employee Ronald Caudill testified that the following was the substance of a conversation he had with Haven about October 2: She come up to me and asked me if I was for the union and I said I was and she told me that if I didn't keep my mouth shut, I would get in trouble. With regard to the threat aspect of this testimony, Haven denied that she told Caudill he would get into trouble if he did not keep his mouth shut. Her version is that she had received "rumors" from different employees that Caudill had been talking for the Union, and that she told him he would have to talk union on his own time, not on working time, or he would be discharged. I credit Caudill's version of what Haven said, that is, I find that she did not limit her threat of discharge to talking about the Union on working time . Whatever remarks she made about Caudill's talking were essentially antagonistic , in view of 34 Upon objection by Respondent's counsel, the General Counsel conceded that this in- cident was not contained in the "surveillance" count of the complaint (paragraph 7), and moved no corresponding amendment but explained he was offering this testimony as evi- dence of "the totality" of Respondent's conduct in this case. Respondent's counsel then withdrew his motion to strike the testimony. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the coercive atmosphere created at the outset by her interrogation of- Caudill regard= ing his union membership. She manifested this same antagonistic attitude in her later questioning of him concerning his attendance at the first union meeting. Indeed, her attitude was persistently adversary on the considerable number of occasions in this period in which she found, or rather, projected herself into the forbidden domain of employees' self-organization rights. There should be borne in mind also the fact that conversations about the Union on working time, including many in- stigated and/or participated in by supervisors, were rife throughout the plant during this period; and that there is no evidence of any corresponding warnings to non- union participants. In these circumstances, I find myself unable to believe that such a person would, on this occasion, have limited herself to a warning designed merely to keep employees from straying into conversations on working time.15 I find that this incident occurred as described in Caudill's testimony and that the threat made violated Section 8(a) (1) as alleged in the complaint. b. In an incident alleged in the complaint and similarly arising initially from interrogation by Haven of employee Lewis, Lewis gave the following total version of what transpired: Mrs. Haven come up and asked me what did I know about the union. I told her I didn't know much. She said there wasn't a union coming in the plant, they would not work under a union. She went ahead and said if any more is said about it they would be discharged. On cross-examination, the witness' attention was called to the enjoinder against conduct of union activities on working time contained in Respondent's Exhibit No. 16. He then stated that Haven had said "something about talking. In other words, I presume what she meant was talking on the job and being fired. That is what I presumed." 16 For her part, Haven, as in the incident involving her warning to Ronald Caudill, stated that what she said to Lewis was that he could talk about the Union on his own time but that if he did so when he was supposed to be working he would be discharged. Asked if she had heard that Lewis was doing "this talking" about the Union, she explained that at this time there were several groups gathered around Lewis talking and "it was creating too much disturbance and I heard from other employees that that's what the conversations were about." So, she implied, she went up to Lewis and issued the warning in the terms she described.17 An initial question is whether Haven limited herself to warning Lewis of dis- charge if he "talked union" on working time. If it were necessary to decide this question, I would be inclined to determine it in the negative. My interpretation of Lewis' testimony on cross-examination, both from my impressions at the time and from the transcript, is not that Haven expressly used such words. Rather, it is that "not talking union on working time" was what, as he stated, he "presumed" she meant. Moreover, here as in the case of the similar incident with Caudill, her various remarks were all of an interrogating and antagonistic nature where he and the Union were concerned. It would seem abnormal that a person in such a frame of mind would have limited herself, in regard to his talking, to an admonition Jim- 15 At some point late in the fall, Respondent posted a notice' (Respondent's Exhibit No. 16, set forth earlier in this Decision), the last paragraph of which states as follows: 5 No person will be allowed to carry on union organizing activities in the plant during his working hours Anybody who does so and thereby interferes with his own work or the work, of others will be discharged. . Asked if this notice had been posted at the time of her conversation with Caudill, Haven testified, "I am not sure of that" In the light of.this testimony, it is obvious that what- ever enjoinder Haven gave Caudill was not referable to this notice, and from the pertinent evidence I find that prior to the posting of Respondent's Exhibit No 16, Respondent had no rule' forbidding or governing employee conversations on working time, on any subject. 1e Further explaining what he "understood" from what Haven had said, Lewis stated his understanding corresponded to the admonition against' conducting union activities on 'working time contained in Respondent's Exhibit No. 16. However, he believed that this notice had not yet been posted at the time Haven talked to him. 17 In her testimony, Haven made no claim of having referred, in the conversation with -Lewis, to Respondent's Exhibif No. 16 as a basis of whatever warning she gave Lewis. That she did not have that notice in mind When she talked to Lewis is clear not only from -this omission but also from her uncertain recollections both as to when the conversation )happened, and when exhibit No 16 was posted ' She thought each event occurred in November, but was not asked which preceded the other. SWEETWATER RUG COMPANY 509 ited to his conduct of union activities on working time. But it is not necessary to determine this question, since it is clear that while several employees or groups of them were involved in the talking, she singled out only Lewis for her discharge warning. Talk is a two-way street and, regardless of whether Lewis was a central figure in the talking groups, all employees engaged in the conversations were doing so on their working time (as was equally true of the many other similar conversations taking place in the plant with considerable abandon during this period). To single out Lewis and absolve the others, as her testimony plainly implies that she did, was to apply a rule of conduct in a discriminatory fashion, plainly violative of Sec- tion 8 (a) (1) . I so find. 2. By Foreman Worley a. A further incident alleged in paragraph 11 of the complaint involves employee Richard Clark and his foreman, Carl Worley.18 The net result of Clark's testimony on direct and cross-examination, as a General Counsel's witness, is that while he was at work on or about October 18, Worley came up and initated a conversation with him about the Union. At the outset or early in the conversation, Worley said that he had orders from higher up to fire Clark if he were heard talking about the Union any more during working hours, and that if Clark had not been such a good worker at the time he, Worley, would have fired him right then. In this connection, Clark stated that Worley's admonition was similar in tenor to that portion of Respondent's Exhibit No. 16 prohibiting the conduct of union organizing activities on company time. Clark remembered this portion of the notice, and testified as his best recollection that the notice was posted a day or so following this incident, that is to say, about October 19 or 20. Worley gave a somewhat different version of what transpired. He denied that he told Clark he had orders from "higher up" to discharge Caudill for talking about the Union. He stated that Clark had been doing lots of talking around to other employees about the Union when he ought to have been on his job. For that reason, he told Clark that anybody talking Union on company time could be dis- charged; but "if they talked it on their own time-I told him to talk it on their own time, I didn't have no authority to hire or fire for that." Worley denied that he told Clark that he would have already fired Clark if the latter had not been such a good worker, or that he said anything in this conversation about the quality of Clark's work. Regarding this incident, I find that Worley, referring to orders from "higher up," warned Clark of possible discharge if he were to engage in further "talking union" on company time. I also find that he did so, not in the interests of promoting plant efficiency but in consequence of a discriminatory motivation, i.e., to inhibit the success of the union campaign and to intimidate Clark to this end. This conduct violated Section 8(a) (1). b. General Counsel's employee witness, Mark Headrick, testified to remarks made to him by Foreman Worley, at sometime between the first and second meeting, which may be synthesized from Headrick's direct and cross-examination as follows: Worley called Headrick over near a trash box and initiated with Headrick a con- versation devoted to the Union. Worley said he did not think the Union would "go good" at the plant; that he thought it would hurt the old men and women employees; that the Union would not take (or might help kick out) these older employees; and that he had never been a union man and had never worked in a union shop. Headrick told Worley that he did not think the Union would hurt and, if anything, would help; that Worley knew that he, Headrick, was a union man when Worley had hired him, and that he was still one. Worley told Headrick he could quit if he did not like it (employment at Respondent), to which Headrick replied that he had to have a job and that Worley would have to fire him or lay him off Worley's total testimony concerning the conversation admits part of it as testified to by Headrick and is silent as to the remainder. In particular, Worley admitted that he told Headrick that if Headrick liked a union and thought it better, he, Worley, would rather that Headrick get a job where there was a union 19 While not alleged-in the complaint, the General Counsel stated at the hearing, upon inquiry of Respondent's counsel, that he was claiming a violation of Section 8(a)(1) based on this conversation, and the incident was fully litigated. With the unfair labor practice question thus posed (albeit without the General Counsel proposine a corre- sponding complaint amendment), I conclude that, in proposing to Headrick that he find employment elsewhere because of his union beliefs and affiliations, Worley issued lB See section A. supra, for an incident of interrogation of Clark by Worley. ,19 Worley,admitted also that be told Headrick he knew,Headrick was a union man when hired. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Headrick a veiled threat of possible future discharge or other discriminatory treat- ment. Worley's remarks were no casual, disinterested, and theoretical opinions on what would be the more congenial surroundings for persons believing in the organized labor movement. Rather they were part and parcel of a series of statements evoked by a specific situation-the Union's campaign to organize Respondent's employees- with Worley expressing opposition to and Headrick's support of that drive. In these circumstances, Worley posed to Headrick an obstacle, only potential and ill-defined but real, between Headrick's union affiliations and his continued employment. Whether called an invitation to quit or a threat of discharge, Worley's remarks con- stituted interference, restraint, and coercion, and I so find. 3. By Foreman Silvey a. The following incident was included in the complaint by an amendment to paragraph 11 of the complaint. As in many previous instances of alleged Section 8(a) (1) violations, the question to be determined is not whether a conversation took place but what a participating supervisor said in it. Two employee witnesses gave substantially similar versions of remarks made to them by Foreman Silvey in late January 1963, about a week or two before the hearing in this matter. The testimony of all three participants agrees that the conversation was initiated by Foreman Silvey, and that he started it because of a leaflet which the Union had just distributed calling the employees' attention to the fact that they were then working shorter hours than previously. According to the General Counsel' s witnesses, Kirksey and Longwith, Foreman Silvey walked up to them at their work and said they did not need anyone to tell them they were on short hours. He then went on to connect a visit made by a union man to Ringgold that day, with the fact that 12 employees had recently received subpenas to appear at the hearing.20 According to both Kirksey and Longwith, Silvey, who Longwith testified was angry, said that the 12 who were to appear "in Bob Allen's favor" at the hearing would be dismissed. Kirksey asked Silvey if Allen was re- sponsible for the 12 receiving the subpenas, and Silvey said, "No, only partly." Both Kirksey and Longwith testified that Longwith stated that he reckoned he was not "in that bunch" and then walked away. In his testimony, Silvey either admitted or failed to deny the foregoing account with one exception: he denied that he said the 12 would be dismissed. - I have no hesitation in crediting the 2 employee witnesses on the issue of what Silvey said or did not say concerning discharge of the 12 subpenaed employees. On the stand those witnesses impressed me as simple country folk, who were genuinely disposed and honestly endeavored to give truthful accounts throughout their direct and cross-examination. On the other hand, Silvey, in his manner and by virtue of some of his testimony, created in me considerable disquietude concerning his reliability. For example, Silvey stated that he remarked about the 12 subpenaed employees "but of the clear blue sky," without, according to him, any further comment on his part. This seems most improbable, bearing in mind his description of the witnesses as employees appearing in "favor" of "Bob Allen," an employee he had discharged, and considering his resentful reaction to the Union's reference to short hours. But whether Silvey was being untruthful at the hearing, or had for- gotten remarks made in the heat of his emotional agitation, I find that he made them. His threat was, of course, a violation of Section 8(a) (1) of a most serious character. And that he should indulge in it after having previously been instructed by Manager Amsterdam not to engage in any such conduct, is a fact entitled to consideration in relation to other of his conduct drawn in issue in this case, the discharge,of Allen in particular (see section H, infra). b. Employee Longwith testified concerning an extended conversation with Foreman Silvey on the Tuesday night following the first union meeting. In the course of this talk, Silvey stated that he thought Longwith was going to get a night watchman's job about which McMillan had sounded out Longwith the night before but for which earlier on Tuesday night McMillan told Longwith he had made another selection 2' Longwith replied that he thought he had not been given the job because he had been talking "union" too much. To this Silvey replied that Longwith had been talking too E0 Counsel stipulated that nine subpenas were served on January 19 and three on January 21. 210n Monday night McMillan told Longwith that be proposed to hire an additional guard "to keep the damn union out ; them union guys are liable to come walking in hny time" ; that he had Longwith in mind for the fob ; and for Longwith to come-in the next day prepared to take over the job. When Longwith reported the next night, Tuesday, McMillan first sent him back to his regular job in Silvey's department and later that evening told Longwith that he had selected another man for the job. SWEETWATER RUG COMPANY 511 much to two employees named White and Kittle; that these employees were for the Union; and that he, Silvey (or "they," meaning Respondent), did not like "it." I credit Longwith's testimony concerning his conversations with both Silvey and McMillan over the versions given by the latter, and find that Longwith was denied the night watchman job because Respondent deemed him to be a union supporter.22 Such conduct violates Section 8 (a) (3) and (1) of the Act but I do not find the commission of such unfair labor practices based on this incident. It was not alleged in the complaint and counsel for the General Counsel stated that the issue was being litigated only as proof of discriminatory motivation by Respondent, that is, as evidence to be considered in connection with the two alleged discriminatory discharge cases charged in the complaint. On this basis, Respondent litigated the issue posed by the General Counsel's evidence. D. Alleged threats To Close Respondent's Plant and Reduce Working Hours The main foundations of the General Counsel's evidence in support of these alleged threats, set forth in paragraphs 8 and 9 of the complaint, are remarks made by Night Superintendent McMillan and Quality Control Supervisor Sloan to diff erent assemblies of Respondent's employees convened by Respondent to hear them. Thus, McMillan addressed separate meetings of the employees of three main departments on the night shift of October 8. Sloan, in turn, addressed day-shift employees at a series of de- -partmental gatherings scattered over a 2-week period from October 8 onward. McMillan and Sloan gave similar explanations of what had stimulated these talks. As related' byMcMillan, Respondent determined to make its position known to the employees in response to the campaign literature and like organizing activities of the Union. Accordingly, and at Amsterdam's direction, on October 8 McMillan ad- dressed separately the employees in the machine, the roller-coating, and cut-rug departments on the night shift. Amsterdam gave him as his basic theme Respondent's opposition to the Union, and also mentioned to him subsidiary topics to develop. McMillan spoke extemporaneously, using neither a prepared text nor notes, but according to him, making essentially the same remarks to each assembled group of employees. He stated that he spoke for 5 to 10 minutes on these occasions. 1. The McMillan talks There is no persuasive evidence that McMillan made any direct statement that Respondent would close its plant if the Union "came in" (the vernacular used in the complaint and in much of the testimony to signify possible majority designation of the Union as the employee's bargaining representative). Rather, the question is whether from remarks McMillan made about other specific plants having closed he communicated to the employees a veiled but reasonably deducible threat on Re- spondent's part that it would, or would be strongly inclined to, close its plant if the union campaign were successful. This question can be easily disposed of on the pertinent evidence, and without reviewing the testimony in burdensome detail. McMillan referred to a plant in Pennsylvania in his hometown. According to his account, he stated that this plant had been organized by a union for a number of years, during which a number of strikes had occurred. Finally, he testified, there was another strike, the company and the union could not reach agreement, and the plant closed. One witness for .the General Counsel, Allen, testified repeatedly in substance that McMillan stated that the plant closed because "they tried to organize it," but in the course of extended cross-examination, and confronted with more precise state- ments he made in a pretrial affidavit given to the'General Counsel, belatedly admitted or recalled that McMillan's actual statements were as McMillan testified they were. The other main witness for the General Counsel concerning McMillan's remarks about the Pennsylvania plant closing could not remember any particulars of what he said 23 r" A week or so after this incident, Silvey, in another of the many occasions he found to participate in "union" discussions with employees in his department, told employe- Penn and Pritchett that he had been informed that night that Dean and Long-with were "for" or "far up in" the Union. as The recollection of this witness was so devoid of any particulars as to all of McMillan's actual remarks that I am unable to credit her statement that McMillan said Respondent's plant "very possibly could close," a statement not recalled by any other witness and, in effect, denied by him. This is the only evidence of any direct threat of plant closing made by McMillan. 512 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD McMillan also referred to the closing of a plant in Alabama operated by those in control of Respondent. On this subject, he testified that he told the employees, in substance, that this Alabama plant had a union, that the company was not making any money, and that it was moved to Sweetwater, Tennessee 24 All that the General Counsel's witnesses could recall was that McMillan said something about an Alabama plant closing and moving to the Sweetwater location As one such witness stated, "that's what I heard him say. That's what I got out of it. He never did make it clear to me." 25 On the basis of McMillan's description of his remarks about the Alabama plant, and the absence of any responsible conflicting account, I find these remarks posed no threat that Respondent would close its plants "if the Union came in." The General Counsel relies on McMillan's remarks also as a source of the alleged threat that Respondent would reduce its working hours "if the Union came in." On this point McMillan stated that he said that the Union, dependent on dues, would want to institute a third shift; that this would be to the Union's advantage because it would increase the Union's membership;-that it -might also be to the Company's advantage; but that it would not be to the employee's advantage 26 He did not, he testified, state that the Company would go to three shifts if the Union won out. The General Counsel's witnesses testified to their general recollection that-McMillan said it was very possible that the Company would go on a three-shift basis and one remembered that McMillan said such a change would entail a consequent reduction in earnings by the employees. But their recollections as to both the scope of his remarks and as to their precise content were confessedly inadequate and uncertain, and none denied McMillan's version of what he did say.27 In the circumstances, I credit his testimony and find no threat of a reduction of hours violative of the Act based on these remarks. 2. The Sloan talks Concerning plant closings, Sloan testified, trimming his testimony to its essen- tials, that in reference both to the Alabama plant and one known as "Peerless" located near Dalton, these plants had been unionized, were unprofitable, and were closed for that reason. Here, as in relation to McMillan's remarks, the principal witness for the General Counsel was vague and uncertain as to what Sloan actually said and, in any event, this witness'- testimony, given prior to that of Sloan, cannot reasonably be construed as contradicting that of Sloan in any material particular.26 24 McMillan testified that he did not say that the unionization of this plant was the rea- son it proved unprofitable or was moved to Tennessee While if the matter were important, I would find that he plainly left this inference by what he admits he said, I am inclined to believe that he did not expressly say this in view of his further testimony that he had no personal knowledge about the history of this plant but was merely repeating what Amsterdam had told him In any event, I do not consider such a statement as violative of, the Act, in the total context of his remarks as I find them - zs This witness, Mrs. Bobby Headrick, could not remember that McMillan had mentioned a union in connection with the moving, although he undoubtedly had Another General Counsel witness, Allen, remembered, on cross-examination, that McMillan said "something" about a union in connection with this plant closing, but recalled nothing specific. Because this witness, like others, could not give a responsible account of precisely what McMillan had said, I do not credit his testimony, which McMillan denied, that McMillan referred to some Oklahoma plant or plants having closed 26 On Respondent's established two-shift basis, and with the employees regularly work- ing considerable overtime (hours in excess of 8) at time and one-half, a change to three 8-hour shifts obviously would yield considerably reduced earnings to the employees unless their hourly rates were substantially increased. 27 One General Counsel witness testified that in these talks McMillan said the Union would do them more harm than good If the General Counsel places any reliance on this testimony, which is unclear to me, I find that whatever McMillan did say in this regard was tied to his analysis of how reduced earnings would result if a 3-shift s} stem were inaugurated in the fashion McMillan suggested as a possibility I consider that such a statement, like his other above-described remarks, was privileged . sThts witness, Lewis, stated at one point in his direct- examination that "I believe" Sloan said the Peerless plant "closed down on account of the Union " But both on direct and on cross-examination the witness conditioned his testimony on his "best remembrance" in a way which, coupled with his demeanor on the stand, has satisfied me that he was unable to recollect with any accuracy what Sloan's actual remarks were - Hence, his be- lief that Sloan said the Peerless plant "closed down on account of the Union" does• not signify to me that Sloan used any such actual words. In effect, Sloan denied having said this. SWEETWATER RUG COMPANY 513 Accordingly, I find that Sloan's remarks about these two plants, relied on by the General Counsel, contain no unlawful or coercive threat of the sort alleged.29 With respect to the alleged threat by Sloan of a reduction of working hours the principal witness for the General Counsel testified that Sloan said if the Union "came in we will probably go on" three 8-hour shifts and that (presumably as a result) the employees "wouldn't take home over $30 or $40" per week 30 But on cross-examination the witness could not recall whether Sloan mentioned the three shifts as something that might result from union stimulation and repeatedly gave qualified answers as to what Sloan may or may not have said on other topics dwelt on by Sloan. Hence, I do not consider the witness as a responsible source concern- ing what Sloan's actual remarks were31 Sloan's testimony is that he did not state that the Company would go on three shifts if the Union came in, but rather that it would be to the Union's advantage to have three shifts (for the same reasons given by McMillan). He explicitly denied that he said the Company would reduce hours if the Union came in. In the circumstances, the proof offered by the General Counsel is not sufficiently clear or sufficiently reliable, standing alone, to warrant a finding that Respondent made through Sloan the threat of reduced working hours alleged, and, in any case, Sloan's version of what he actually said is entitled to credence over that of employee Lewis, however Lewis' testimony is interpreted. I find that Sloan's remarks were as he described them and did not constitute a violation of Section 8(a)(1). The complaint charges one further threat of hours' reduction. As to this, Gen- eral Counsel's witness Allen testified that in the conversation of October 6 in the Pierce Cafe, Supervisor Clark stated that if the Union won out "we,ll be cut down to 8 hours and put on three shifts." Clark's testimony, in substance, is that if the Union got in the plant it would prefer to have three shifts in order to increase its membership and dues receipts, and that he thought the Company would benefit from three shifts because of the saving on overtime costs. Clark denied that he said the Company would go to a three-shift basis if the Union "came in." With the testimony of Allen and Clark in conflict, I prefer Clark's version. In the first place, Clark's version is in accord with the line taken by McMillan and Sloan in their contemporaneous speeches to the employees, and that line had been laid down for them by Amsterdam. Moreover, Allen clearly was a highly volatile and highly valuable person where the Union was concerned, and the record shows that he did most of the talking during this cafe conversation. Such a person is not likely to be closely attentive to the exact words of others. But over and above all, I do not interpret Allen's testimony as to what Clark said as clearly attributing to Clark any words to the effect, or warranting the inference, that the three-shift change would flow from any unilateral or retaliatory action by Respondent predicated upon the Union "coming in." I find that the threat charged in the complaint in respect to Clark based on this incident fails for want of proof.32 E. Respondent's institution of a paid vacation program On October 25, 1962, Respondent posted a notice 33 in the plant announcing its adoption of a paid vacation program for the employees. Under this program, all employees employed for a year as of June 1, 1963, are eligible for a week's vaca- 39While not alleged as an unfair labor practice in the complaint, at the hearing the parties litigated the question whether Haven, in the course of a conversation previously considered in another context (see section A, 1, c, supra), told employee Lewis that a union "was not coming in the plant" ; and/or that the Company "would not work tinder a union." In the light of Haven's testimony that she told Lewis "she did not think a union would work out" in the plant, and his admission on cross-examination that Haven might have put the matter this way, I find that Haven's version, which is consistent with Respondent's line of argument at the time, is equally plausible and did not violate the Act. 30 The record indicates that the normal hourly rate paid by Respondent was $1 20. Allowing for payroll deductions, and assuming no wage increase, $30 to $40 would be the approximate range of "take home" pay on an 8-hour, 5-day, work basis 31 The subject under consideration is an area where the trier of the facts needs to have proof of actual words or their clear substance, as distinguished from a witness' conclu- sionary characterizations or subjective interpretations, if his findings are not to rest on verbal quicksand - In connection with Allen's discharge, directed by McMillan (see section H, infra), Night Superintendent McMillan was present during this cafe incident and necessarily knew from it of Allen's decided prounion sympathies -- - 33-Respondent'srExhibit No. 14. - - 760-577-65-vol. 148-34 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion with pay. The pay is equal to 2 percent of each employee's actual earnings during the year preceding the vacation week, that week to be chosen by Respondent. The notice anticipated that this would be the first week of July 1963. Respondent's chief witness concerning the origin and inauguration of this program of significant benefit to the employees was Plant Manager Amsterdam. The essence of his corresponding testimony is as follows: In a long-distance telephone conversa- tion which Amsterdam had somewhere between February and April 1962 with Mr. Nusblatt in New York (Nusblatt "heads up" Respondent), Amsterdam sug- gested that he and Nusblatt should soon discuss a paid vacation program. Nusblatt told Amsterdam to wait on this matter until Nusblatt's expected summer visit to Ringgold. Nusblatt came to Ringgold duping the summer and, in a "very brief" discussion with Amsterdam, agreed or decided that a paid vacation of some sort should be instituted. The features of the plan were left for determination in later discussions, since Nusblatt wished to put a uniform program into effect as well at two other rug companies under the control of Nusblatt and his business associates. These plants were the ones at Sweetwater, Tennessee, and the Carolyn Chenille plant in Dalton. Not long after the Nusblatt visit, the features of the plan, such as the amount of pay and the employees to be eligible, were evolved in various discussions between Amsterdam, officials of the other two companies (including particularly the manager of the Carolyn Chenille plant in Dalton), and Nusblatt. With the plan thus fully evolved, it was first planned not to announce it until about January 1963. However, reports reached Respondent's employees prior to Octo- ber 25 about Respondent's intended plan and its possible features and consequences. In order to still these reports and rumors, and because of direct inquiries to Amster- dam by some employees, Amsterdam determined to announce the plan and did so by the notice he posted on October 25. There is no testimony by Amsterdam, or any other witness, directed specifically to the question whether, in any of its actions in conceiving or putting into effect the vacation plan, Respondent was stimulated by the Union's organizational campaign, i.e., was bent on using this device, or announced it when it did, in order to lessen the appeal of that drive among its employees. All proof bearing on this crucial question, charged in the complaint and denied in the answer, is wholly circumstantial. A circumstance of particular significance, of course, is the date of the plan's announcement, October 25. That date was midway between the two union meet- ings, and is otherwise established as a point in time when the union campaign was at a peak. That date also coincides closely in time with the bulk of Respondent's actions, lawful and unlawful, which, out of its admitted position of opposition to the Union, it carried out; the October-November period is congested with these activities. Entitled to similar significance is the fact that the Nusblatt visit (during which in a "very brief" discussion Nusblatt approved the paid vacation idea) occurred about August 25, 1962,34 when the Union's organizational drive in Ringgold was well underway. There are no external circumstances of equivalent weight suggesting that Respond- ent's formulation or announcement of the plan were disassociated from the union campaign. There is, of course, Amsterdam's testimony that he first broached this idea to Nusblatt in March 1962 (or perhaps the month before or after), which was before the Union began its concentrated organizational campaign at Respondent's plants. But this circumstance if not of much significance, bearing in mind the fact that the Union's general organizing drive in the area had been underway for some time, and in view of Amsterdam's testimony that some union literature was distributed at Respondent's plants as early as February 1962. There is also Amsterdam's further testimony that he first planned not to announce the vacation plan until January 1963, and only advanced the date because of the un- official reports and rumors he described. But there are no objective circumstances or other evidence lending credence to Amsterdam's testimony as to what decisions he made concerning the original or the advanced announcement date, or what went through his mind in making them. The truth of his testimony on these points depends upon his credibility, examination of which must, on this record, play a part in my decision on the underlying question of innocent or unlawful motivation. Before moving to that question, however, there is other evidence to be considered which I believe casts some light on the question whether Respondent used the vacation plan to counter the thrust of the Union's campaign. I refer to conflicting testimony as to whether, in one of his speeches very shortly before the plan was announced, Supervisor Sloan informed the employees that a paid vacation program was under consideration by Respondent. In this connection, employee Lewis testified "Respondent's notice about the plan , dated October 25, refers to Nusblatt's visit 2 months earlier. SWEETWATER RUG COMPANY 515 .on direct examination that in the course of Sloan's October speech to the employees in the cut-rug department, Sloan said that Respondent was thinking about "giving us paid holidays and paid vacations." On cross-examination, he added that Sloan also said that Nusblatt and Amsterdam had been talking over a paid vacation plan tor the last couple of months, and were thinking of granting a paid vacation and paid holidays.35 Lewis was the principal witness for the General Counsel in respect to Sloan's speech as a whole, and when Sloan appeared as Respondent's witness he was examined at length by Respondent's counsel concerning the various remarks attributed to him by Lewis. On the matter of paid vacations, Sloan was asked whether he had told the employees that ,the Company was thinking about giving the employees paid holidays and vacations. Sloan answered, "No. I did state though the Company would go along with the industry, whatever the industry gave then Sweetwater Rug Corpora- tion would." Asked at what part of his talk he made that statement, he testified, "I really don't know. I think I was asked a question on that." Thereupon, Respondent's counsel asked Sloan, "Did you say anything, or did you mention vacations?" to which Sloan replied, "No." I credit Lewis and discredit Sloan, and find that during this talk Sloan did state that the Company was thinking of instituting a paid vacation program for the em- ployees. I am not at all satisfied with the negative answers Sloan gave on direct and cross-examination to those of the questions put to him which merely called for a "Yes" or "No" answer to the question whether in his remarks he made any reference to the vacation program. Rather, considering the entirety of his direct and cross- examination, I incline to the conclusion, clearly indicated by his first testimony on direct (quoted above), that the question to which he responded with the remark that Respondent would follow the industry, embraced, if it was not limited to, paid vaca- tions. What he had said about paid vacations (and paid holidays) was the exclusive and specific subject of the questions then being put to him by Respondent's counsel, and his answers that he believed he was asked a question "on that" and that Re- spondent would follow the industry, referred to these subjects. His cross-examination proceeded on the assumption, quite incorrect, that in his di- rect examination he had described the question put to him during his speech by some employee, as referring to wages. Even so, during his cross-examination Sloan was not sure that the question related to wages; and in stating that his reply was not "strictly" limited to wages he lent confirmation to the strong inference arising froin his initial testimony on direct that he was questioned about paid vacations 36 On the hypotheses of this analysis. Sloan concededly said that Respondent would follow the industry. I find that he also made the further remarks attributed to him by Lewis. This is much reason to doubt Sloan's credibility on this fact issue, not only because of his generally questionable demeanor, but because of his evasive and incredible testi- mony in other particulars. As he described his remarks, he put the blame for the closings on the noncompetitive operations of these plants, with the fact that they were unionized only mentioned rather in passing. In fact. of course, his entire remarks were devoted to the misfortunes that might flow from unionization- and the presence of the Union at these plants, and its possible acceptance by Respondent's employees, was the keystone of all he said or had to say. In this context, I am confident from my observations that the witness considered he was treading in dangerous waters for Respondent and played down those aspects of his remarks which bethought might be prejudicial to Respondent. 35 Later in Lewis' cross-examination, he states he was not positive that Sloan had men- tioned paid holidays, and that Sloan might have talked only about a paid vacation plan. ° Sloan's testimony on cross-examination may be summarized as follows Asked what question had been put to him "about wages." he testified he did not remember the exact question but some employees did ask about wages Asked if his reply was confined strictly to wages, Sloan said, "No [meaning not] strictly, but anything the industry did for the employees Sweetwater Rug Corporation would go along" Thereafter, Sloan testified, "I think the question was as to wages and I think I did stick to wages, but I am not sure." He then testified, but in apparent reference to the notes (later destroyed) which he had used as a guide for his prepared remarks, that he did not make any reference to a vacation program. Still later in this cross-examination, Sloan stated that no question concerning vacations was put by the employees, that he believed be was asked if there were wage raises in prospect and that he replied that he was sure the Company would go along with the industry on wage increases. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wholly incredible is Sloan's testimony concerning how it came about that he distributed the "Fairy Tale" document among Respondent's employees (see section G, infra) and I take this fissure in his credibility into account in discrediting him in the present instance. My finding that Sloan did say that the Respondent was considering inauguration of a paid vacation program clearly fits with other admitted facts. It is established by other proof that at the time of Sloan's speeches, some supervisors had already been told by Amsterdam that the vacation plan was under consideration, and Amsterdam had imparted the same news to various inquiring employees. It is a reasonable infer- ence that Sloan had similar knowledge and since Amsterdam himself had rather freely spread ,the word, there was no reason I can see why Sloan should not have done so at the department meetings he addressed, particularly since he had discussed with Amsterdam what he should say. I believe and find that he did make reference to the proposed vacation plan, and that his purpose, as was true of all his remarks, was to forestall and blunt the Union's appeal to the employees. This conduct was a clear violation of Section 8(a) (1).37 I further find that Respondent's decision in August to formulate a paid vacation plan and its announcement of the plan in October sprung from its admitted opposition to the Union In making this finding, I rely on all the considerations previously re- viewed. I also rely on aspects of Amsterdam's testimony on cross-examination de- signed to test his credibility. While many of the points of fact upon which he was cross-examined were, in the main, quite unimportant in and of themselves, they related to matters which formed the stream of his testimony on direct. His inability to remember dates and other details of matters he had testified to on direct, left me with the distinct impression that he had volunteered items in his direct testimony that he was laboring to substantiate on cross, and in the process fell back on lapses of memory and similar devices.38 I find that Respondent inaugurated the vacation program, or instituted it when it did, for the purpose of countering the union organizing campaign, in violation of Section 8(a)( I) of the Act. F. Encouragement of individual bargaining rather than through the Union In support of this charge, set forth in paragraph 13 of the complaint the proof offered by the General Counsel pertains to McMillan's October 8 remarks to the night-shift employees. The net effect of that proof is that McMillan said all that the Union could do was to ask the Company for raises; that if the request were made through the Union, Respondent did not have to agree; that the em- ployees might have to go on strike; and that the employees would do as well to ask for raises themselves. McMillan concedes he made remarks to the. general effect of the foregoing. $' The complaint alleges, in apparent reference to these remarks by Sloan, that he "promised" monetary and other rewards to the employees on the condition they abandon the Union. (Paragraph 14.) The proof fails to establish any "promise" of benefit, but rather a benefit held out as a strong probability lily findings of violation and the corre- sponding provision of my Recommended Order are addressed to his actual remarks, as litigated at the hearing. 38 Thus, he could not remember whether Nusblatt had made any visit to Ringgold in the period in question, other than the one in August. Quite obviously, however, he must have known whether one of Nusblatt's crowning roles in Respondent 's affairs had made a second or third trip not many months before the hearing. Similarly, he did not know whether he had visited Nusblatt in New York other than a trip he had made in November 1962. Also, his testimony that in deciding to announce the plan, his hand was forced by a rumor which got out, appears odd in view of his other testimony that the matter was not a secret, that the rumors arose a month or 2 months prior to the time he posted the official notice, and that he had made Respondent's intentions known to some supervisors (at a date he could not remember); and to employees Similarly, be first stated that he heard of the rumors from the foremen and foreladies (I e., that employees were question- ing these supervisors). But as counsel for the General Counsel persisted, he later stated that employees questioned him personally on the subject. Finally, Amsterdam continu- ously referred to Nusblatt's visit when the final decision was made as in the "summertime," which could have meant a date as early as late June, about a month before the Union's campaign at Respondent's plant had gotten into stride But Amsterdam must have known, as the notice he prepared and posted shows,, that the date of Nusblatt's visit was about August 25, when the campaign was fully in progress. SWEETWATER RUG COMPANY 517 McMillan's remarks on this subject were in a context of opinion and argument over the possible disadvantages of union affiliation , and for this-reason were, in my judgment, within the area of expression protected by the Act. I find no viola- tion on this evidence. G. Distribution of the "Fairy Tale" The complaint alleges that by distribution to the employees of a one -page anti- union harangue entitled "A FAIRY TALE" ( General Counsel's Exhibit No. 2), Respondent threatened to close its plant "if the Union came in" in violation of Section 8(a)(1). Respondent concedes its distribution of this sheet. It was called to Amsterdam's attention by Rothstein , manager of the associated Carolyn Chenille plant in Dalton. Impressed by what the sheet said , Amsterdam obtained copies and arranged for their distribution to the employees by various supervisors. The main distribution was made by Sloan , whose work carries him into all departments ; Sloan handed out some 200 copies. This distribution occurred about October 15, and, while there was no direct testimony on the point , must have taken place , in considerable degree at least, on working time. Whether this conduct amounted to a threat by Respondent to close its plants should the union drive be successful , depends exclusively on the content of this circular; there is no independent evidence of any such threat. The circular purports to portray, as a fairy tale come true , what brought about the closing of one of the plants referred to in Sloan's speeches, and traces that closing to the employees' vote to be represented by a union (the Union involved in this case , in fact). This story is told in a synthetic, overdrawn, "bug-a-boo" style. I cannot believe that, by itself or even as construed in the context of Respondent 's antiunion position and coercive activities , this document could reasonably be construed as anything other than propaganda . As such, it was free for distribution by Respondent 39 H. The discharges of Caudill and Allen Respondent's explanations of the discharges of Allen and Caudill during the hear- ing, as those explanations were made apparent from the evidence Respondent ad- duced, were that each of these employees was discharged because he violated one of Respondent's plant "rules." More specifically, Respondent attributed Allen's discharge to his claimed violation of -an alleged rule forbidding employees from leaving the plant during working hours without permission of their respective super- visors, and Caudill's discharge to his claimed violation of an alleged rule requiring employees absent from work to notify the Company. As it presented its case, Respondent sought to establish that a group of "rules," including the two mentioned above, were fully in force at the time of the discharges, i e., that they had theretofore been adequately made known to its employees and enforced. For his part, the General Counsel adduced evidence seeking to establish that Respondent did not have, in actual force and vigor, requirements worthy of the name "rules"; accordingly, in his brief, he characterizes the alleged rules as a "myth." With these positions made manifest in the earliest stages of the hearing, this "rules" subject emerged as the single most important topic of testimony in the case. Almost every witness called, by whatever party, was questioned on the sub- ject, and the testimony so accumulated total hundreds of pages of transcript. In view of the conclusions I reach concerning the actual bases of these two dis- chargees, it is not material whether either of these two "rules" existed. I might, therefore, ignore in this Decision much of the pertinent evidence. However, in view of the extensive attention devoted to this subject at the hearing, the deeply disputed contentions of the parties, and the possibility that one or another aspect of subject may be pressed upon the Board, I have concluded that an adequate review and analysis of this entire body of testimony is desirable. .-This task has been a formidable one because of the great quantity of the evidence and, even more so, because in various important particulars, it is confusing, incomplete, imprecise, conflicting, and exaggerated. Rather than incorporate that extensive review and my accompanying findings and conclusions in the body of this Decision, I am attaching it hereto, as a part of this Decision, as Appendix II. as In view of Amsterdam's testimony that Sloan distributed this sheet at his direction, Sloan, who testified before Amsterdam, obviously played games with the truth in claim- ing that, having found the copies on his desk, he•distributed them without instructions from anyone. But r do not believe that Sloan's unreliability as a witness affords- a basis for finding violations on charges involving higl where I have found suftlcient evidence lacking. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I turn now to a consideration of the issues and evidence pertinent to the dis- charges of Allen and Caudill. It is, of course, clear that conduct of the sort at- tributed to Allen and Caudill, respectively, would have been a proper cause for discharge were it the true reason, irrespective of the existence of any corresponding "rule." Respondent, however, pitched its case in the beginning on the claimed existence of such rules, and as it argues ,its case in its brief filed with me still does, at least in the case of Allen. In regard to this continued reliance on "rules" it is, therefore, appropriate to say that by reason of deficiencies both in the promulgation and enforcement of Respondent's so-called "rules," as described in detail in Appendix II, the evidence concerning them has no necessary tendency to resolve the ultimate fact issue determinative of these discharges, namely, whether or not Respondent's true motivation for either of them was discriminatory. 1. The discharge of Caudill Lowell Caudill began work for Respondent sometime in the workweek ending on August 18, 1962. He worked in the "roller-coater" or "latex" department, night shift, under Foreman Carl Worley. He was discharged by Worley on October 8, 1962. At the hearing, Respondent's counsel stated that he was seeking to prove that Caudill was discharged for being absent from work without notice, and in putting in Respondent's case, Respondent sought to establish the existence and enforce- ment of a "rule" requiring employees to give advance notice of absences from work. In my analysis of the "rules" subject, I have found that no such "rule" existed; that Respondent tolerated some absences without notice; and that various purported illustrations of discharges for such absences put forth by Respondent did not involve actual discharges but, rather, were instances where employees had quit. In its brief filed with me, Respondent now asserts that the evidence shows that Caudill was discharged "for being absent without permission" without regard to any "rule" to this effect au Careful consideration of all the evidence convinces me that Caudill was not dis- charged because of absences without notice, as Respondent's counsel now contends. I find, instead, that Caudill was discharged merely because of repeated absences from work, irrespective of the notice factor. This is the clear essence of Fore- man Worley's testimony and a discharge for this reason, which I find was the true one, was lawful I turn now to a consideration of the pertinent evidence. Caudill, aged 20 at the time of the hearing, had had some stints of prior em- ployment with Respondent principally in the 1960-61 period. Two of these were in the day-shift "roller-coater" department under Foreman Plott, the same depart- ment Foreman Worley headed at night. After some subsequent sojourn in Mary- land, he returned to Ringgold in the summer of 1962 and, seeking employment again with Respondent, approached Plott. Plott had no place for Caudill but knew that Worley, foreman of this same department on the night shift, needed a hand. Caudill, now married and a father, stressed his need for work and requested Plott to intercede for him with Worley. Plott agreed to do so after receiving some kind of assurances from Caudill that he would not "lay out" from work as he had done when working for Plott 41 Plott went to Worley and told him that Caudill was a good worker, although he had been given to "laying out" when previously employed by Plott (some 2 years earlier). Worley then expressed doubt whether Caudill was "dependable," but Plott, pointing to Caudill's family status and responsibilities, told Worley that Caudill had said he would do better if he could get a job. Worley then had Caudill come in 4° Both by failing in its brief to contend for the existence of a "rule" and by affirmatively stating that it "needs no proof of existence of a rule to establish the situation as to Caudill." Respondent appears to have abandoned any further reliance on the "rules" factor in regard to Caudill's case 41 Respondent sought, mainly by leading questions to its witnesses, to establish that the term "lay out" had a precise meaning; namely, an absence without notice, or to use the vernacular, without "calling in " But it is distinctly clear, considering all the testimony of these witnesses and such actual absences as they were referring to, that in actual usage, Respondent's officials and employees used this term to mean either (1) frequent absences- irregularity in attendance-not "staying on the job," or (2) an absence or absences with- out notice. In the case of Caudill, I find that Worley used the term in the first sense and that this is also what Foreman Plott meant in stating that Caudill "would just lay out" when • working for him. SWEETWATER RUG COMPANY 519 for a talk, the nature of which I find was as Worley stated in the following excerpts from his testimony: Q. Tell us how you came to hire him and what happened after that? A. Well, I needed a rollup man and Mr. Plott-Mr. Caudill had gone to him for a job and he told me about Mr. Caudill coming to him about a job and he said he was a good rollup man, and I said, "Yeah, but he ain't dependable is he?" And he said, "Well, he's married now and has a child and he has promised to do better if he could get a job." I had him come and talk to me and I asked Mr. Caudill if he would-would stay on the job and he promised if I would give him a chance, and he said he would. I said, "We work six nights a week and I want you here." And he said, "If you work seven nights I will be here." Mr. SPECHT: I can',t hear you. The WITNESS: I told him we worked six nights a week and I expected him to be on the job six nights a week. And he said, "If you work seven I will be there if you will give me the chance." * * * * * * Q. (By Mr. BROOKS.) Let me ask you this: in that conversation was his past employment with the company mentioned? A. Yeah, I talked to him, I knew that was bad to lay out and he had promised not to do this and he'd stay on the job if we'd give him one more chance to work, he would not lay out. TRIAL EXAMINER: What was it you knew about him? The WITNESS: That he had been laying out before, he had worked there before and that he had been discharged for laying off the job and not coming to work regular. Q. (By Mr. BROOKS. ) All right. You told him this at the time? A. Yes. Q. What was his response to this? A. He said, "I will be here all the time, every night." 42 The next day, August 16 or 17, Caudill reported for work pursuant to a telephone call or message from Worley to do so. It is obvious from the testimony quoted above that what Worley was emphasizing to Caudill when he hired him was the necessity that Caudill be at work regularly,- and not that he could be absent if he gave notice. And it was this same necessity that Caudill be "on the job" regularly which constituted the character of the additional warnings Worley gave to Caudill on the occasions of his subsequent absences. Turning to these incidents, on Friday, September 7, Caudill failed to report for work. According to Caudill, he was ill with "flu" the previous night; that -he had then so informed Worley and had told Worley that if he did not feel better he would not be in the next day; and that Worley said, "That's all right." Worley could not recall but would not deny that Caudill told him on Thursday that he was ill, but specifically denied that Caudill said anything about not being in on Friday, adding that he would have remembered any such statement by Caudill. When Caudill came to work the following Monday, Worley went to him and said, with reference to the Friday absence: "Lowell, you are going to have to come in here regular if you keep your job." Caudill made no reply to this admonition 43 Caudill was absent again, and concedely without notice this time, on Friday. September 14. About 9 p.m. that night Worley and Caudill encountered each other in the streets of Ringgold. Caudill explained then to Worley that he had made a trip to Tennessee because of a serious accident suffered by his grandfather and, as I read his testimony, to bring to Ringgold certain relatives who therefore had been living with this grandparent. According to Caudill, Worley said that was "all right" but to be sure to come in on Monday. On Monday. according to Worley and another witness, Worley went to Caudill and told him "The next time that you stay off the iob ror. if you are out another timel I will have to replace you." According to Caudill, Worley said that he would dis- *a While Caudill denied that Worley hired him on condition that he would work "regu- lar," Caudill could not recall the entire conversation or whether Worley told him that his only "trouble" was that he would not work regularly. 'The fact that Worley treated Caudill's absence as warranting a reminder of the need' for regular attendance , combined with Caudill's failure to claim on Monday that Worley had approved the absence, lead me to find that either Caudill had not made the statement he asserts or that, if he did , Worley did not understand or remember it. The Important thing, however, is that Worley for some reason did , in reference"to this- absence, again enjoin regular' attendance upon Caudill. ' '` 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge him if he was 'tout another Friday" night. The difference in these versions is inconsequential since in either case Worley was, in effect, telling Caudill that while he was excusing this absence, another would risk forfeiture of his job. This is what Caudill himself understood. He testified that Worley did not limit his warning about further absences to those without permission or notice, and that it was for this reason that he asked permission to be absent on the next and final occasion now to be considered. Caudill needed to pick up some household furniture in Maryland. Accordingly, Caudill and his brother Ronald (who was accompanying him) requested and received permission from their respective supervisors, Worley and Forelady Haven, to be absent from work on Friday, October 5. Due to a breakdown of their truck en route to Maryland, they did not arrive back in Ringgold until about 7 p.m., on Monday, October 8, with the result that Ronald missed his entire day shift and Lowell's night shift had begun about 2 hours before his return. An hour or so after their return, Ronald reported to Mrs. Haven, by telephone, the reason for his absence. Mrs Haven accepted his explanation and he returned to work the next morning as usual and without further reference to the matter by Mrs. Haven. Lowell (who did not attempt to work for the balance of his shift) testified that he made no such correspond- ing report to Foreman Worley upon his return, because his wife had informed him after reaching Ringgold that his brother-in-law, employee Richard Clark (who also worked under Worley), was going to report his absence and the reason for it to Worley when Clark went to work that afternoon. Caudill testified that he took it for granted that Clark had done so and that he sought no verification of the fact from Clark until after his discharge the next afternoon. When Caudill reported for work on Tuesday afternoon, he could not find his time- card and asked Worley where it was. While Worley at times appeared.to deny, by implication, that .the ensuing conversa- tion between him and Caudill contained various remarks testified to by Caudill, he admitted that he could not recall the entire conversation. Hence, disposing of con- flicts and discrepancies in their accounts as I go, I find on the basis of both versions that the following interchange occurred between them. When Caudill asked Worley where his timecard was, Worley told Caudill that it was gone and that Caudill would have no further use for the card, and/or that he. Worley, had no further use for Caudill-that Caudill was discharged When Caudill sought ,the reason, Worley stated he had lost his job because of his absence the night before. Worley may have said, or also said, as Caudill testified, that this absence was without his permission. In any case, Caudill reminded Worley that the latter had given him permission to "have off"; Worley replied "but not for Monday"; and then Caudill asserted to Worley, and Worley denied, that he had been told on Monday that Caudill would not be back from the trip in time to report for work Caudill then inquired of Worley what was to be done about his having borrowed money from Respondent to make the trip, and, in reply, Worley told Caudill to see Amsterdam, then present in an adjoining department. Caudill attempted in the conversation to describe to Worley what had happened to cause his delayed return, but, by implication from this testimony, Worley refused to listen 44 While I do not consider the matter of material significance, I find, as Clark testified, that Worley asked him at shift time on Monday where Caudill was; that Clark ex- plained Caudill's delay and his expected late return; and that Worley then said that Caudill "did not give a damn" whether he worked or not.45 I similarly find that "Caudill, without denying that Worley told him to see Amsterdam in the adjoining department about the loan , testified that Worley said that Amsterdam had mentioned something about a job for Caudill on the day shift and for Caudill to see Amsterdam in this regard Since, in the view I take of this discharge, this would not have been an unnatural remark for Worlev to utter, it may be assumed that Worley said something to Caudill about seeing Amsterdam concerning job possibilities on the day shift, as well as the loan matter. Caudill did see Amsterdam after Worley discharged him and made a date to confer with Amsterdam the next day. At that meeting, Amsterdam denied that he had a position for Caudill ; told 'Caudill to see the various foremen about employment ; and, presumably in reference to Caudill's discharge, told Caudill he did not interfere with the actions of the foremen 46 According to Caudill, after, Worley discharged him, he sought out his brother-in-law, 'Richard Clark, at work there in the same department, and that Clark confirmed to him that he had on the night before explained to Worley Caudill's delay and expected late.re- turn to Ringgold. But whether Caudill did thus consult with 'Clark, either then or later that day, is not important in view of the findings I make that in the Worley-Caudill dis- charge conversation , Worley acted regardless of any notice to him. , Moreover, after con- sulting Clark, Caudill did not then challenge Worley on this matter, or bring Clark to Worley for a direct confrontation on the subject. SWEETWATER RUG COMPANY 521 Worley also asked Foreman Plott about the same time on Monday whether Plott had seen Caudill and, when Plott said, "No," told Plott he was going to have to let Caudill go for "laying out" too much, and discharged Caudill only moments later. I thus conclude that Worley either lied or had a lapse of memory when he denied Clark's testimony of notification. But even if he gave false testimony in this respect,46 the entire body of evidence, some of the most important of which remains to be noted, indicates that any such word as Clark gave him he considered unimportant. At the hearing, in response to questions from Respondent's counsel, Worley used a number of terms to explain why he discharged Caudill. Of these, I consider, both because of Worley's demeanor while testifying and because of othei facts, that he was describing the true basis when he stated that he had discharged Caudill "because he did not come in on Monday night," for "not being on the job, for laying out, off the job," and again, for "missing work and not reporting for work." Interspersed with these natural and clear descriptions of absence alone as the basis for his action, Worley also said, at one point, that he had discharged Caudill because Caudill "hadn't let me know and he hadn't come in to work." And at another, pursuant to suggestive and leading questions by Respondent's counsel, he said that "laying out" meant an absence without the absentee "calling in." But a bit earlier, and without a prompting question, the definition he gave of what he meant by saying Caudill was discharged for "laying out" was "missing work and not reporting for work." I consider this unprompted definition-mere absence from work-as what he meant where Caudill's discharge was concerned. In this connection, it should also be noted that, according to Caudill himself, what Worley told Caudill in discharging him was that Caudill had been absent on Monday, not without "notice," but without his "permission " There is considerable difference between these two requirements, and the difference supports what I find troubled Worley and led him to discharge Caudill, that is, Caudill's repeated absences from work, irrespective of cause or notice. Rather clinching the matter was some interrogation of Worley by me, after Worley's direct and cross-examination on this subject was concluded. Asked to state what reason he had given Caudill for his discharge at the time, Worley said the explanation he gave Caudill was "For not reporting in for work"; "Well, I pulled your card last night because you wasn't here for work." Before reaching the conclusion that Caudill's absence on October 8, coupled with his previous ones,.was the true basis of his discharge, I have carefully considered the evidence adduced by the General Counsel in support of the discriminatory motivation charged in the complaint. To this evidence, which could not in the interests of orderly factual presentation be described earlier in this Decision, I now turn. Caudill signed a union membership card in the early part of September and solicited a relatively large number of other employees to do likewise. Some 35 to d0 of those he solicited signed cards he had given them. Caudill did not describe where these solicitations occurred, but from two examples he gave which are considered below and from his effort to conceal one of these from Foreman Worley, it is reason- able to infer that he carried on a fair amount of this solicitation in the plant and that he endeavored to conceal such solicitations from observation by Worley or other supervisors. That he was successful in concealing his union activities is suggested by the fact that Caudill himself was never, while in Respondent's employ, the subject of any of the widespread intimidating activity in which Worley and others of Re- spondent's supervisors engaged 47 As part of his proof that Worley was aware of Caudill's union activities. counsel for the General Counsel adduced testimony concerning two instances of solicitation by Caudill at the plant. Caudill testified that one evening when he was filling out a "blue" membership card for an employee who could not write, Worley approaches] and asked. "What I was doing, writing a check?" and that he told Worley, "Yes, sir" and picked up the card and put it in his pocket. Worley then moved on TJnder direct examination, Worlev confirmed Caudill's description of this incident and described the place where Caudill was writing as the "box" where Caudill initialed the "tickets" which it was his task to affix to rolls of carpet coming off the "roll-un" machine, but denied that he saw what it was Caudill was writing, on or that be, knew it was a union card. He further testified that be did not know Canrlill had signed a union card and that he was unaware of any union activity on Caudill's pai t 461t should be • recalled that during much of the hearing, and in his examination of Worley, Respondent's counsel was preoccupied with an effort to establish the existence of a "rule" forbidding absences without "notice " and that Worley, Respondent's last wit- ness , had been present every day of the hearing 47 Por these reasons I cannot assume, merely from the fact of Caudill 's extensive union membership solicitations , that Worley necessarily had knowledge of them. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The particular incident just referred to happened in a brief span of time, and Caudill was not examined specifically on the question whether Worley was on the scene in time, and in a position to see the card before Caudill picked it up (which Caudill no doubt did as soon as he was aware of Worley's presence or near presence). I give Respond- ent no marks for the testimony adduced through Worley that this incident took place at a location used by Caudill to mark carpet-tickets, because if Worley had thought Caudill was merely initiating such a ticket in the routine performance of his work there was no occasion for him to make the inquiry he did. But it is one thing for Worley to have known or suspected, as his inquiry indicated, that it was not a rug- ticket that Caudill was writing on, and quite another to ascribe to him knowledge of exactly what kind of other card or paper Caudill was inscribing. This evidence fails to establish Worley's knowledge of Caudill's union stand or activities, and I so find.48 The only other evidence of an antiunion motivation for Caudill's discharge adduced by the General Counsel is the testimony of Caudill that on an occasion after his dis- charge when he sought employment from Foreman Plott, Plott told him that if he had kept his mouth shut about the Union he would still have his job. Caudill referred to this alleged remark by Plott in his second pretrial affidavit, dated November 6, 1962, but not in his first such affidavit, which I find was taken on October 24, 1962.49- Caudill sought employment from Plott twice, once on the day following his discharge and on a second occasion which I find was toward the end of October. Caudill could not recall on which of these two occasions Plott had made this remark, but since it was not alluded to in his first pretrial affidavit of October 24, if Plott made this state- ment it must have been made during Caudill's second talk with him. Plott denied making any reference to the Union in a somewhat different statement he says he did make to Caudill, i.e., that if Caudill had not "laid out" he would have retained his job. There are no indicia which indicate to me which witness was telling the truth, but even if Plott did ascribe Caudill's job loss to talking about the Union, I do not think such a statement by Plott sufficient to overcome what to me is strong and persuasive proof that Caudill was discharged for the reasons Worley gave and had repeatedly stressed to Caudill. Plott was not the man who discharged Caudill, and his alleged explanation was made weeks after Caudill was discharged and was barren of any specific reference to Worley. Moreover, Plott, undoubtedly aware at this later date of Caudill's union attachment,50 could have had reasons of his own for ascribing Caudill's discharge to those attachments, without knowing or believing that there was in fact, a discrimina- tory basis for Caudill's discharge51 I thus conclude that the General Counsel has failed to establish on a preponderance of all the relevant evidence, a discriminatory motivation for Caudill's discharge. 2. The discharge of Allen Robert L. Allen, an employee of the Respondent for about 2 years, was discharged on October 12, 1962, a time when the Union's drive was at or approaching its peak. He worked in the cut-rug department on the night shift under Foreman Silvey. Allen had been a "union" man at places of previous employment. He signed a union card about 2 months prior to his discharge, and solicited a great many of Re- spondent's employees to do likewise as he encountered them in and around Ringgold. In some of this activity, he accompanied Union Representative Gossett. A voluble and rather irrepressible talker, as he demonstrated on the stand, he appears to have 18 Caudill testified that somewhat later that same night he was again filling out a union card at his job position for another employee:and that, with the card lying out in the open, Supervisor Sloan walked by But Caudill declined to testify that Sloan actually saw the card and offered no reason for his belief that Sloan did see it other than the fact that the card was in a position presumably visible to Sloan. In the circumstances, I can- not assume that Sloan had seen Caudill filling out such a card on such an occasion as Caudill described. 0 The first affidavit is erroneously dated October 4, several days before Caudill's dis- charge. Based on pertinent time sequences estimated by Caudill, I find October 24 the most probable date with the "2" accidentally omitted "The Union's charge alleging Caudill's discriminatory discharge was received by Re- spondent about October 24, 1962. si Significant in this connection is Worley's testimony that immediately after discharg- ing Caudill he told Plott, "I had to let your boy go . .'he just laid out on me too much" 'I credit this testimony of Worlev's, since it was at Plott's friendly intercession -on Caudill's behalf that Worley had hired Caudill in the first place. By reason of his own antiunion feelings, Plott may have simply turned against Caudill upon learning, after his discharge , that the young man he had befriended had gone to the Union 's side. SWEETWATER RUG COMPANY 523 .made no effort to conceal his union sympathies and his hopes for success of the union ,campaign. Indeed, a few days before his discharge, in the Pierce Cafe discussion with Supervisor Clark (and with McMillan sitting nearby), Allen loudly evidenced these attachments in asserting the benefits he envisaged would flow trom union representation of Respondent's employees. In view of the foregoing and other evidence,.12 it is clear that Allen was a leading proponent of the Union and that his position as such could not but have been generally known to all concerned. Allen has a teen-age daughter who, beginning in the early summer, has been working, sometimes two and sometimes three nights a week, as a waitress in a local restaurant. Her work ended about 11:45 p.m., and it was Allen's custom to drive his daughter home for safety's sake. During part of this period, a 10-minute "break" period began at midnight and Allen mainly used this time and, according to him 2 or 3 minutes extra to escort his daughter home. About a month or 6 weeks before his discharge, this "break" period was set back to 12:30 a.m. From that point on Allen usually left the plant at about 11:45 p.m., taking about the same amount of ,elapsed time, but now fully during working hours, for performance of his escort duties. When Allen returned to Respondent's plant and entered the main door on his last night, Foreman Silvey was standing nearby checking the timecards. He asked Allen where he had been. Allen replied that he had taken his daughter home from her work. Silvey said, "Your daughter?" and asked where she worked. Allen replied, "Yes, my daughter," and, in naming the restaurant where she worked, told Silvey he knew this fact. Silvey referred .to Allen's need of permission to leave the plant, to which Allen responded that he had done this before. While this brief interchange was taking place, Allen was in continuous motion from the door toward his job location in .the interior of the plant, where he resumed his duties. Continuing with the next encounter between Silvey and Allen, about 3 a.m., the quitting time of some of Silvey's staff, Silvey was prompted to ask Allen if he was leaving. Allen said "no" and went about the normal "clean-up" work he performed toward the end of the shift proper. About 4:30 a.m., Silvey drew Allen aside and in some way conveyed to Allen the idea that his job had become forfeit by reason of his having left the plant earlier that night 53 According to Allen, in the ensuing conversation, he told Silvey that Silvey knew be had been taking his daughter home and when Silvey denied such knowledge, Allen told Silvey that he had previously informed Silvey he was doing this and cited to Silvey occasions when, upon returning to the plant, he had described to Silvey the tips his daughter made and the assistance her earnings were providing for the Allen family. According to Allen, Silvey then said he believed he had heard something about these circumstances. As part of his protesting remarks, Allen told Silvey that he had been gone a mere 11 minutes, to which Silvey replied that his watch showed 13. Allen also pleaded that he be let off with a warning, but Silvey stated that there was nothing he could do-- that the matter was out of his hands. Whether or not prompted by these remarks, Silvey acquiesced in Allen's proposal that they both talk the matter over with McMillan. Turning the clock back a bit, Silvey testified that having noticed that Allen was not at his job, he waited for a period which he estimated was some 10 to 15 minutes. He then looked for Allen in the men's room and then proceeded to the timecard racks near the front door to see whether Allen had "clocked out " As he was checking the card rack, Allen entered the plant. Immediately after the initial conversation 'between the two at that location, Silvey sought out McMillan to see what he should -do about Allen. During this conversation, according to Silvey, he told McMillan what Allen had done that night. According to McMillan, Silvey said, or also said, that Allen had been taking his daughter home "all along," but that he, Silvey, had first ® In a washroom discussion about 3 days before his discharge , Allen undertook to ex- plain to Foreman Whaley how union practices would cope with a particular question of factory staffing raised by Whaley. In the same period, Allen made some efforts to obtain the American Legion hall in Ringgold as the site of a projected meeting the Union planned to call for Respondent's employees. sa While Silvey testified that he told Allen "we are going to have to let you go," Allen testified that Silvey never told him explicitly that he was discharged but, rather, couched his meaning-in such roundabout terms as that Allen had "gotten into it," "gotten into trouble," etc For various reasons , including the fact that the actual discharge decision had already been made by McMillan ( see infra), I find that in this conversation Silvey, while conveying to Allen the idea that his number, was up, did not flatly state that Allen 'was then and there discharged. . 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heard about it that night.54 When Silvey asked McMillan what he should. do, McMillan, according to him and Silvey, told Silvey that he had had to let a man (Elders) go for this reason a week or so previously, and that, as McMillan put it, "they would have to treat him [Allen] just like the rest of them," i.e., not make an exception. Thus, when Allen and Silvey reached McMillan's office between 4:30 and 5 a.m., the decision to discharge Allen, made by McMillan, had been reached some hours earlier. At McMillan's office, Silvey told McMillan that Allen wished to see him, and McMillan asked Allen what it was about. Allen explained that Silvey had told hint he had gotten into "it" or words to this effect because he had taken his daughter home and he wanted to know what Silvey meant. McMillan replied that he had heard Allen had been leaving the plant, that other employees were "raising Cain" about it, that Allen knew this was against the rules, and it looked like "that was it." Figuring that McMillan's remarks meant that he was discharged, Allen, who did the most of the talking, protested along several lines, e.g., that he had a superior attendance record, that he badly needed the income from his job, and that McMillan knew that he had been leaving the plant (and that other employees did likewise), and that he had not been warned or reprimanded. On such grounds, he appealed to be let off with a warning and given another chance. This McMillan declined to do, on the ground that he had discharged Evans and Elder for the same reasons. Allen asserted that Evans and Elder had left for longer periods than his approximate 10-minute absences, but McMillan refused to make an exception. McMillan ended the conversation by withdrawing into his office.55 While Silvey and McMillan denied that the "Union had anything to do" with Allen's discharge, the pertinent facts and circumstances clearly warrant, and in my judgment require, a contrary conclusion. Respondent was at all times deeply opposed to the Union and at the time of Allen's discharge was exerting directly upon many of its employees a full complement of coercive and intimidating measures, unaware, according to the perpetrators of these measures, that what they were doing was in any way unlawful. Indeed, McMillan admitted that at the time of Allen's termination, he did not know it was unlawful to discharge employees because of their union activities. Respondent thus had a strong motivation and a relatively unfettered inclination to exercise the discharge weapon whenever it thought its employment useful Allen's undoubted and undisguised prominence among the union supporters certainly presented him as a likely candidate for an employer so disposed. While there is no admission or other direct evidence of antiunion motivation, absence of such evidence, in cases such as these, is far from determinative, and the probable truth must be sought by the use of other searchlights. Among these are incredible or improbable assertions made by employer representatives in explaining their actions As one example, Foreman Silvey's statement, while being interrogated directly concerning the reason for Allen's discharge, that he was then unaware "of any union activities that was [sic] happening," is incredible in the extreme. The Union's drive was active, well-advanced, and well-known in and around Respondent's plants and the entire community, and in Respondent's countercampaign Silvey took active part before. at the time of, and following, Allen's discharge. Moreover, if Silvey meant by this statement merely to deny his knowledge of Allen's union activities, such a disclaimer stands in strange contrast to his concern, manifested but a few days later to other employees known to him to be union sympathizers, over the possibility that he had been "raked over the coals" for dis charging Allen at the first union meeting. But apart from this, interested as be was in who were union supporters, Silvey could not have been unaware of where so prominent a union supporter as Allen stood McMillan, of course, knew of Allen's union svmoathies because, in McMillan's nre'ence, Allen had proclaimed them in the Pierce Cafe conversation with Foreman Clark, occurring a few days prior to Allen's discharge - -- u Silvey was uncertain but testified that he did not "believe" he had relayed to McMillan Allen's earlier statement at the door that he had "done this" before McMillan's belief was to the contrary, which I credit as more likely. Both Silvey and McMillan test!- fled that upon Silvey's innuirie' McMip'n told Silvey that he did not know of Allen's practice and had not authorized him to engage in it se Efforts made by Allen immediately thereafter to get back to work were unsuccessful. While speaking on Friday afternoon to Foreman Worlev about a position, McMillan ap- proached and told Allen it would be better for him and the Company if he sought work elsewhere Earlier on Friday, Allen appealed his discharge to Amsterdam who, after consulting McMillan and Silvey, advised Allen late on Monday afternoon that McMillan and Silvey would not take him back. SWEETWATER RUG COMPANY 525 I also find, contrary to Silvey's testimony, that Silvey knew, long in advance of the night of Allen's discharge, of Allen's regular practice to leave the plant for the purpose of escorting his daughter home. In this regard, I credit Allen's testimony that he so informed Silvey on one occasion at the beginning and that, as also con- firmed by Longwith's testimony, on various occasions he spoke with satisfaction to Silvey, when returning to work from his chaperon duties, concerning the size of his daughter's tips. It is true, as Respondent points out, that when Allen inaugurated this practice in the early summer, he made these trips largely during the 10-minute midnight "break" period, so that, given Respondent's regular tolerance of a few min- utes tardiness, Silvey's permission during this initial period was not required. But Silvey had only some 30 employees in his department and, according to him, he spent the bulk of his time there. In these circumstances, and with Allen absent regularly, for a total of some 10 to 15 nights in the 4- to 6-week period which ensued after the "break" time was set back to 12:30 a.m., I cannot believe Silvey's testimony that he was unaware of any of these departures and first became aware of them, and their purpose, on the final night. I find that Silvey knew of this practice and its purpose all along. Furthermore, there is the fact that Respondent was notably tolerant of employees who, for purposes no more appealing than those Allen was serving, left the plant with- out permission, or retuined late from their lunch or "break" periods, without loss of compensable time. Allen, of course, had left the plant repeatedly, but of this prac- tice I have found that Silvey was aware. In the circumstances, had Respondent's intentions been innocent there would have been compelling reasons for it, in all fairness, to bring to an end, by some warning rather than discharge, the practice it had wittingly acquiesced in and thus, in effect, had licensed.56 Finally, there is a circumstance which indicates that Silvey was paying unusual attention to a possible unauthorized departure by Allen on the night of his discharge. Allen testified without contradiction by Silvey that in his 4:30 a.m. conversation with Silvey, Silvey stated, in contradiction to Allen's assertion that he had been out exactly I1 minutes, that his (Silvey's) watch said 13 minutes. If this testimony stood alone it would strongly suggest that Silvey knew Allen would be leaving as usual and timed him from departure to return. I do not so find because, in his testimony Silvey said that some 10 to 15 minutes elapsed after he first "missed" Allen before he felt called upon to go in search of him. But, even so, both lines of testimony show that Silvey was paying close and unusual attention to Allen on the night of his discharge, an attention I consider attributable to Respondent's contemporaneous antipathy to any employee imbued with union sympathies to the degree Allen was, and was known to be. For all the foregoing reasons I find that Silvey and McMillan seized upon Allen'c departure on the final night as a pretext for a discharge actually motivated by his adherence to the union cause. III. THE REMEDY I recommend that Respondent be ordered to cease and desist from its unfair labor practices, and that, because of the sweep of those found and the deep opposition to th- Act they manifest, an order issue in the broad form enjoining any violation of any of the rights guaranteed to Respondent's employees in Section 7 of the Act. As to the affirmative action appropriate to require of Respondent, it is clear that under the circumstances of this case it would not effectuate the policies of the Act to require Respondent to withdraw the vacation plan I have found was put into effect. at least at the time it was, in violation of the Act. The discriminatory discharge of Allen calls for the conventional remedy of- rein- statement and backpay, computed in accordance with the formula set forth in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, decisions of the Board. I thus reject Respondent's argument that an order calling for Allen's reinstate- ment should not issue. Respondent rests this contention on certain conduct of Allen vis-a-vis Foreman Silvey and McMillan subsequent to his discharge As to Silvey. it is undisputed that in a roadside encounter with Silvey about 10 days after his discharge, Allen threatened to beat Silvey up if Silvey would get out of his automobile and also cursed Silvey during this incident; and that, in a talk with Amsterdam, Allen sa Respondent's knowledge of and acquiescence in Allen's departures render quite Im- material the two illustrations McMillan gave Allen, and described at the hearing of dis- charges allegedly for leaving the. plant without permission In one of those cases, how- ever, I have found in my analysis of the "rules" evidence (Appendix II) that the em- ployee in question, Elders, was not, in fact, discharged for this reason 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatened to spread some information he allegedly possessed which if circulated would reflect on Silvey's moral character. As to McMillan, I accept his testimony that, in a contemporaneous telephone conversation initiated by Allen, the latter made some similar threats to and cursed McMillan. These incidents do not, it is clear to me, warrant withholding the reinstatement order. Allen had a natural sense , both of outrage and deprivation of greatly needed earnings, over his discharge, which, as I have found , was an illegal blow upon him by Respondent. But it was clear to me at the hearing, where I observed Allen and all other witnesses to these incidents most closely , that Allen was a man with a loud bark but no real inclination to bite. McMillan testified to this same estimate of Allen, and to his lack of concern over what Allen had said to him, in interpreting. Allen as wanting merely to "blow off steam." This is all that can really be said of the situation with Silvey, because if Allen really were inclined to give Silvey a beating, the actual opportunity he had on the highway, but did not take, was a most favorable one. Those with the power to vindicate the rights guaranteed by this Act should not stay their relieving hand on such facts as these. Other customary forms of affirmative action are included in my Recommendedi Order. CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing employees in the exercise of, rights guaranteed by Section 7 of the Act, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) and Section 2(6), and (7) of the Act. 2 By discharging Robert L. Allen under the circumstances found above, Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. 3. Respondent did not violate the Act in discharging Lowell Caudill or in other respects alleged in the complaint not found as violations in this decision. 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 , Sweetwater Rug Company, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Textile Workers Union of America , AFL-CIO CLC, or any other labor organization , by discriminating against its employees in regard to their hire or tenure of employment or any term or condition of their employment. (b) Interrogating employees regarding , or in connection with, their union member- ship, sympathies, or activities in a manner constituting interference , restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. (c) Engaging, or giving the impression of engaging or having engaged, in surveil- lance of its employees' union meetings or other concerted activities. (d) Threatening its employees with discharge or any other form of reprisal because of their membership in, sympathy for, support of, or activity on behalf of , any labor organization. (e) Conferring or holding out the possibility of conferring any benefit upon its employees for the purpose of thwarting their exercise of, or deterring them from• exercising, any of the rights of employees specified in Section 7 of the Act. (f) In any other manner interfering with , restraining, or coercing its employees in the exercise of their right to self-organization, .to form, join, or assist the above-named Union , 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 , or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of- the Act: (a) Reinstate Robert L. Allen to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy " (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, timecards, personnel records and reports, and all other records necessary to analyze- the amount of backpay due under the terms thereof. SWEETWATER RUG COMPANY 527 (c) Post at its plants in Ringgold , Georgia, copies of the attached notice marked "Appendix I." 57 Copies of such notice, to be furnished by the Regional Director for Region 10, shall , after being duly signed by an authorized representative of the 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 the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith.58 "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 "a Decree of the United States Court of Appeals, Enforcing an Order of" shall be inserted immediately following "as Ordered by." ca In the event that this Recommended Order is 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 I 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: ALL OUR EMPLOYEES have the right to form , join, or assist any labor union, or to refrain from so doing. WE WILL NOT discharge or take any other action against any of our employees because he or she is a member of, or supports, Textile Workers Union of America, AFL-CIO-CLC, or any other labor union. WE WILL NOT question our employees concerning their membership in, their sentiments toward, or their activities in support of, the above-named or any other labor union, in any coercive manner. WE WILL NOT unlawfully spy upon, or request any employee to spy upon or inform us about, any labor union meetings or other union activities of our employees. WE WILL NOT threaten any employee with loss of employment or any other action adverse to him, or seek to persuade any employee to quit, because he is a member or supporter of the above-named or any other labor union. WE WILL NOT grant to our employees any employment benefit in order to discourage them from becoming members of the above -named or any other labor union, or from assisting or supporting any labor union. WE WILL offer immediately to Robert L. Allen the job he last held, or a similar job, without loss of any rights or privileges he had in such job, and WE WILL give him whatever backpay he lost as a result of our discrimination against him. SWEETWATER RUG COMPANY, Employer. Dated-------- ----------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his rights to full reinstatement in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, 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, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. 876-3311 , Extension 5357, if they have any question concerning this notice or compliance with its provisions. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX H RESPONDENT'S "RULES" As a preliminary guide to the review which follows, it should be borne in mind that Respondent has never issued to its employees any "rules" pamphlet. Nor has it ever otherwise memorialized any inclusive body of "rules" for its employees, whether at the outset of their employment or on other occasions. Rather, at intervals over the years and on some occasions prompted by specific events, Respond- ent gave, or sought to give, notice of one or more specific norms of employee conduct. Moreover, the means of communication Respondent employed , and the "rules" thereby communicated, varied from occasion to occasion, the means con- sisting, as to some "rule" or "rules," of one or another bulletin board notice, and as to the same or other "rules " of oral notifications given by one or another super- visor to particular individual employees or groups of employees . What, therefore, Respondent puts forward and regards as its "rules" consists of the sum total of the various requirements which , according to its witnesses , were, at one or another time and by varying processes, made known. Accordingly, at the hearing Respondent's counsel followed the procedure of questioning Respondent's witnesses concerning the "rules" with which they were familiar, or as to their familiarity with the "rules" governing one or more specific situations mentioned by counsel . From this body of testimony, four requirements emerged as the principal ones mentioned . They are that employees should: 1. Not punch any timecard other than their own. 2. Not leave the plant during working hours without the permission of their supervisor, except at lunch and "break" periods. 3. Return to work promptly upon expiration of the lunch and "break " periods. 4. Give notice in case of absence from work.' A. Communication of the "rules" The purpose of an employment "rule" is to require consistent conduct on the part of employees, on penalty of disciplinary action in the event of violation. A "rule" thus serves the dual purposes of affording advance notice of the require- ment and of the peril of penalty , and to achieve these purposes it must be adequately communicated to all considered subject to it. Concerning the manner in which they had been made familiar with all or some of the foregoing requirements , Respondent's witnesses usually first referred, in gen- eral terms, to bulletin-board notices and/or oral communications by supervisors. 1. Bulletin board notices Following these generalized responses , a goodly number ,of Respondent's witnesses were then shown Respondent's Exhibit No. 7, which, as will be noted, deals with only two of the "rules." This notice, omitting Respondent 's letterhead, reads as follows: March 7, 1962 NOTICE Do not leave the plant without receiving permission from your supervisor. Do not punch any timecard other than your own. See that your timecard is properly punched at all times. Anyone violating these rules will be subject to discharge. SAM AMSTERDAM. As a routine matter, Respondent's counsel would then ask these witnesses one or another close variations of the following typical question: Have you seen that notice or one similar to it posted on the bulletin board? A question so framed did not require the witness to state flatly whether or not he had seen the precise notice shown him , and the alternative reference to some "similar" 'General Manager Amsterdam and Night Superintendent McMillan alluded to the ex- istence of other "rules," such as rules against drinking at work, and against "visiting" with employees at work, but these norms are not referred to by the main body of Re- spondent' s witnesses as "rules" and apparently were not communicated to the employees generally Hence, these allusions to other "rules" appear significant only. as indicating that, having no formal body of "rules," Respondent and its employees had inexact and flexible notions of what this terns might mean or include as they used it during the hearing. SWEETWATER RUG COMPANY 529 notice was calculated to leave the witness in a quandary as to ( 1) whether counsel meant this particular notice as recalled by its substance but not necessarily by its exact words, or (2) whether the question comprehended some other notice or notices, in which case the witness must further decide how close the resemblance must be to become "similar." These observations are borne out by the varying and confusing responses and further explanations of various witnesses to whom this peculiar question was put, and their frequent identification of quite different notices as the "simliar" ones they had seen. The larger group of witnesses , without specifically identifying Respondent's Ex- hibit No. 7 as one they had seen, affirmed that they had seen "similar" notices posted from time to time. Some of these witnesses , following further questioning , indicated that they meant notices referring to the two rules regarding card punching and leaving the plant. But, like Helton (see infra ), Respondent's witness Ogle distinguished between the card-punching "rule" and the matter of leaving the plant, in describing the notices (apparently two) which he had seen . And Respondent's witness Teems clearly recalled and plainly referred to a "little paper" restricted to the card punching rule when asked by Respondent's counsel whether he had seen a notice "like" Respondent's Exhibit No. 7.2 A variation is presented by the responses of three of Respondent 's employee witnesses, Peters, Jay, and Greeson , to the effect that they had seen this notice or a "similar" one posted at a time corresponding to the March 1962 date shown on Respondent's Exhibit No. 7. Next, there are two witnesses for Respondent who at one point or another testified that they had seen this very notice. The statement of Forelady Yates was un- qualified and not later modified . But in the elaborating and confusing testimony of the other, Helton, concerning when she had seen this very notice, she twice stated, in effect, that she had seen it posted on various occasions during her entire 4-year term of employment.3 In the resulting efforts by Respondent's counsel to untangle this factual impossibility, Helton then cited as the notices she could specifically recall two separate ones, one concerning the card-punching rule (which she identified as posted about "a year ago"), and another dealing with the matter of leaving the plant (which she identified as posted about "two years ago or longer." ) As I read Helton's entire testi- mony, I am unable to conclude that she meant to leave unqualified the sta`ements she made that she had seen Respondent's Exhibit No. 7 specifically.4 I turn now to the evidence developed during presentation of the General Counsel's case relative to bulletin board notices. This evidence began when, in the course of cross-examining dischargee Allen early in the hearing, Respondent first produced Respondent's Exhibit No. 7. Allen and 9 of the succeeding 11 employee witnesses for the General Counsel were shown it and testified quite unequivocally that they had never seen it before . Of the two remaining witnesses , one, Charles E. Brown, was not shown the document. However, he was questioned in a way calculated to elicit his knowledge of the notice if he had observed it, and gave responses which must be interpreted as negating his having seen it. 2 Among others, Respondent's witness Pritchard recalled distinctly a notice of some 3 years' vintage dealing solely with the card-punching rule. And while on her direct exam- ination she referred to several notices "something like" Respondent 's Exhibit No. 7, when asked on cross-examination to state when she had seen one she referred to Respondent's Exhibit No. 2, a notice posted after the events of this case . This notice reads as follows : 12/17/62 NOTICE It is the established policy of this firm not to permit any employee to leave the plant during working hours without permission of your foreman. Employees , of course, can leave at meal and break periods. Any one leaving the plant without checking their time card out will be subject to discharge. Do not punch any time card other than your own. These rules will be strictly enforced. ( Sgd.) SAM AMSTERDAM. $ Respondent's witness Gertrude Clark, while being questioned about Respondent's Ex- hibit No. 7, likewise manifested similar confusion in testifying that this notice had been posted "all the time" during her 5 years' employment. 4 Night Superintendent McMillan himself testified that he could not say that he had ever seen the original of this notice, while stating that he had seen some "similar" one. But he did not state when this "similar" one was posted. 760-577-65-vol. 148-35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The remaining member of the group of 12 witnesses for General Counsel who were queried about this notice was James E. Elder, a former employee discharged by Respondent on October 6, 1962. On cross-examination, Elder made statements from which I understood the witness to say or mean that he had seen this particular notice posted on Respondent's bulletin board, whereupon the exhibit was admitted in evidence.5 Some of the General Counsel's witnesses above referred to would not, when so queried, deny the possibility that this notice had been posted, but these denials represented no retreat from their testimony that they nevertheless had not seen it. On the other hand, five of these employee witnesses, while denying that they had seen this notice, had distinct recollections of a different notice which they had seen posted on the company bulletin board, at a point in time which, considering all the pertinent testimony, must have been prior to the March 1962 date shown on Respondent's Exhibit No. 7. As to this different notice, these witnesses had clear recollections concerning its size (considerably smaller than Respondent's Exhibit No. 7), and its content, i.e., that it was restricted to the injunction against punch- ing any timecard other than their own. On all the surrounding evidence, includ- ing the corroborative testimony of certain witnesses for Respondent, I find that this other notice was posted at a time uncertain but appreciably prior to March 7, 1962, the date shown on Respondent's Exhibit No. 7. At this point, a special aspect of some of Respondent's evidence concerning bul- letin board notices warrants attention. The first six witnesses called by Respond- ent (exclusively on the rules subject) affirmed that they had learned of all four rules, including the requirement concerning notification of absences, through bul- letin board notices and oral notifications by their supervisors. The sixth witness, Jack L. Jay, was then interrogated further by the Trial Examiner, who pointed to the fact that Respondent's Exhibit No. 7 makes no reference to any requirement con- cerning the reporting of absences. The witness was then asked whether he had been informed of this rule by his supervisor, which the witness denied. In the light of this response, the witness was asked a number of questions concerning this "rule" and its content. In the course of this questioning, which plainly flustered the witness, he admitted that he had never seen any bulletin board notice of this "rule," did not recall it, and did not know what the "call in" requirements were. Respondent's next witness, Greeson, was likewise queried about this "rule" by Re- spondent's counsel. She stated that she had not heard of it and had never seen it posted.6 None of Respondent's succeeding employee witnesses were specifically questioned by Respondent's counsel concerning their familiarity with this requirement as a "rule," and from all the pertinent evidence of record it is clear, and I find, that no such rule existed. No reference is made to this subject in Respondent's latest "rules" notice (Respondent's Exhibit No. 12), and as Amsterdam explained, Respondent merely expected the employees to "call in" if possible. The next appropriate inquiry is how frequently were notices posted dealing with (1) the matter of timecard punching and (2) the matter of leaving the plant without permission during working time. Amsterdam testified that he posted notices once or twice a year, but given his tendency to exaggerate and his failure. to search for copies of any notices except those posted in 1962,7 I conclude that 1-year intervals are nearer the truth. But from testimony on both sides which I credit, it is also clear that one notice posted, once and perhaps twice in the 3-year period antedating the events of this case, dealt only with the timecard-punching matter. Under these circumstances, and considering all the evidence, I find that Respondent's Exhibit 5 Shown the exhibit by Respondent's counsel, the witness was asked whether be had seen this "notice and similar ones" on the bulletin board. After I interjected to say, "Let's make it this notice first," the witness answered: "I was aware of that rule; yes sir." He then responded in the affirmative to the question whether he had seen "notices similar" on the board. Prior to his testimony specifically directed to this exhibit, the witness stated that he took it that Respondent had a rule against leaving the plant be- cause he had been told when put on his last job not to leave the plant. 6 This witness stated that she considered it "common courtesy" to "call in" when she was absent but it is not clear from her related testimony whether this was her invariable practice. Witness Jay said it was his "practice" to call in. Y Amsterdam testified that he ceased looking for copies of notices once he found the copy of the one notice produced which antedated the events of this case (Respondent's Exhibit No. 7). His failure to make a reasonable, if not thorough, search for copies of earlier notices requires that in this instance as in others, his estimates from memory be ap- proached with distinct caution. SWEETWATER RUG COMPANY 531 No. 7 was posted at or about its March 7, 1962, date; that the next prior notice was posted about a year earlier and was the "small" notice limited to the timecard- punching matter as described by various witnesses; and that at approximate 1-year intervals in earlier years, Respondent posted a notice dealing with one or both of the two subjects. How effective such notices were also depends on the length of time the notices, once put on the bulletin board, remained there. On this important matter, as on so many relevant points of fact, little of the testimony was precisely focused. But because of the obvious tendency of various Respondent's witnesses to exaggerate in the extreme, I discount heavily and do not credit the statements, usually rather volunteered, of a few of Respondent's witnesses to the effect that one or another notice "similar" to Respondent's Exhibit No. 7 was on the bulletin boards all the time. Far more credible is the testimony directly on the point by one witness for the General Counsel, while under cross-examination, to the effect that notices posted would disappear from the bulletin board .8 And General Manager Amsterdam, who posted or saw to the posting of notices, testified that posted copies disappeared and, while stating at one point that notices removed were replaced, he also stated at another point that he did not make "a habit of leaving the rules up on the bulletin board." There are, in addition, other facts and circumstances indicating that there were considerable periods of time when no notice remained posted. Just how long Respondent's Exhibit No. 7, for example, remained posted in plant No. 2 cannot be precisely determined but it is clear to me that it could not have remained long on the bulletin board. Were the fact otherwise, there is no accounting for the testimony of witnesses whom I consider truthful, who while distinctly recalling a different notice posted a year earlier, could not recall having seen this relatively recent one. Moreover, between 3 to 6 months prior to the hearing, Respondent erected glass enclosed and locked cases to contain its "rules" notices. While there is no direct testimony as to why Respondent did this, it is a reasonable inference that it did so because previous notices, including Exhibit No. 7,. did not remain posted continuously or for periods Respondent considered sufficient for effective notification. There is also the testimony of two employees, hired about Septem- ber 1962, who made no reference to Respondent's Exhibit No. 7 when asked how they had become familiar with Respondent's "rules." It is a reasonable inference from their testimony that this notice was no longer on the board when they were engage. d.9 Finally, the vague, varying, uncertain, and conflicting recollections of most employees as to what notices had appeared, when, and what subjects they dealt with, is as good evidence as any that Respondent's sporadic notices, as I find, had no prolonged life. . 2. Oral communications of "rules" by supervisors I turn now to Respondent's evidence concerning oral notifications of "rules" by supervisors. Among this evidence is the testimony of a goodly number of Respond- ent's nonsupervisory employees that their supervisors had told them of the rules. Some of these witnesses stated that they were so informed when hired; others as- signed other or no particular occasions for these communications. However, the supervisors identified as having so given such notifications were by no means all of Respondent's supervisors, and there is no evidence of any pattern or practice of systematic communication of rules by supervisors to all employees, whether when first hired or at any other time or intervals. 8In this cross-examination, Respondent's counsel sought from the witness confirmation of counsel's assertion the employees had a habit of tearing such notices down. eEqually suggestive are (1) McMillan's direction to Foreman Whaley, given some 6 to 8 months "ago," to start telling new employees of the "rules," and Whaley's related testi- mony that before that time some employees might not know the rules ; (2) the meeting of the night-shift employees in the cut-rug department, called by Foreman Silvey the night after the discharge of Allen, at which Silvey stated that any employee who left the plant during working time without permission would, be discharged; and (3) the occasion around November or December 1962 when, for the first time and in "a particular way," Forelady Smith cautioned employee Peters and his coworker about"'the rules, the notices, you know, on the bulletin board," a caution which Peters guessed was prompted by the posting of a new notice, evidently Respondent's Exhibit No 12, posted on December 17, 1962 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, some of these witnesses engaged in what were patent exaggerations. The witness Peters, for example, was asked on cross-examination to specify the last time his supervisor, Smith, had talked to him about the rules, and particularly the one con- cerning leaving the plant during working hours. In reply, he placed the time as "two or three months ago," that is, about November or December 1962, and volunteered that it was the practice of Mrs. Smith so to remind him of the rules at,3 or 4 month intervals. Pressed for details as to what prompted this and the earlier reminders by Smith, the witness first sought to portray them as routine in origin and general in nature. But he later stated that Smith had never mentioned the rules before in the "particular way" she did on this last asserted occasion; he then got lost in a maze of varying and unconvincing explanations as to what he had meant by the expression "particular way"; and finally stated that this was the only time he could remember when she had mentioned the rules to him. Equally exaggerated testimony was given by the witness Jay, one of the two day-shift employees in the latex-compound depart- ment supervised by Foreman McBrayer. This witness testified that every time the notices of the rules were posted on the bulletin boards, which he stated occurred at 2 to 3 month intervals, McBrayer mentioned them to him and his coworker. But all the reliable evidence is contrary to his version of such frequent posting of rules, and the testimony of this witness concerning the frequent corresponding notifications given to him simply cannot be believed.lo The remainder of Respondent's evidence under this heading related to notifications of the rules at certain group meetings of employees. But the meetings referred to consisted only of night-shift employes in the machine room and cut-rug departments in plant 2, embracing only a small proportion of Respondent's employees. There is significant testimony only concerning the cut-rug department meetings, each of which, save one,, was promoted by some misconduct other than a transgression of the "rules" involved in this case. These other transgressions, and corresponding warnings of disciplinary action, undoubtedly were the principal subjects of emphasis at the corresponding meetings," but the testimony is that these occasions were also taken to remind .the employees of some or all of the four subjects touched on in this case. In the circumstances, it can be inferred that these latter reminders were given routine and subordinate emphasis. The final meeting was held the night after Allen's discharge (from this same department) and apparently was convened to warn the assembled employees, as Fore- man Silvey did, that anyone leaving the plant without permission would be dis- charged. This meeting, of course, came too late to warrant consideration in this case, except as it suggests that Respondent was not satisfied that the employees of this de- partment were aware, at the time of Allen's discharge, of this "rule," or if they were, that it would reasonably be enforced. There was no equally systematic examination of the General Counsel's witnesses concerning rules-notification by oral communications by supervisors. Nevertheless. a number of these witnesses offered some indicative testimony along these lines. Thus, there is the testimony of some of these employees that they were not told of the rules orally by any official or supervisor of Respondent,12 but That of their own volition (as some of Respondent's witnesses also testified), they generally reported their absences or sought permission before leaving the plant for such varying reasons as that, in the case of two employees, such a rule had existed at other places of employ- ment, or that, in the case of another, it represented common sense, or because. in the case of another employee, he understood from talk with other employees that such a requirement existed. The instances in which such witnesses acknowledge oral com- munication of "rules" consist mainly of Allen's testimony that he had heard Foreman Silvey mention the requirements concerning card-punching and not leaving the plant without permission at one of the meetings previously described; and that of two employees, Brown and Richard Clark, that they had been told individually (and separately), by Foreman Worley (about October 10, 1962, in the case of Clark). not to leave the plant unless they had his permission "or clocked out." a 10 Jay is one of the witnesses who erroneously testified to the posting of the "absence- reporting" rule, and is also the one who, after testifying to the existence of this rule, admitted that he had never seen it posted and did not know what it was li Of these meetings, the first, held some 2 years prior to the hearing, resulted from the disappearance of rugs from the plant ; a second held about a year later was prompted by a fight between two employees ; and the third held in August 1962 followed the frightening of a female employee with a frog. 12 Among these was dischargee Caudill, whose testimony that he had never heard of a rule requiring the reporting of absences, which I credit, accords with my basic findings that no such rule existed. SWEETWATER RUG COMPANY 533 B. Compliance with and enforcement of the."rules" The evidence concerning the disciplinary measures prescribed for violation of of Respondent's "rules," and concerning compliance with and enforcement of the "rules" in actual practice, presents a picture of uncertain standards, frequent non- compliance, and spotty enforcement. In the first place, there was evident uncertainty concerning the exact requirements of certain "rules." For example, while the card-punching rule would, on its face as set forth in Respondent's Exhibit No. 7, apply to any employee punching any card other than his own, in the one instance brought up at the hearing it was not enforced.i3 As another illustration, while Respondent's counsel at the hearing argued that the rule against leaving the plant without permission applied whether or not the offending employee punched out, Foreman Worley gave a conflicting interpretation in advising employee Clark in October 1962 (after discovering that Clark had left the plant) that he should either get Worley's permission "or clock out." And Foreman Silvey's first move to see whether Allen had punched out on the 'night of Allen's discharge (duplicated by Forelady Smith on the respective occasions when she missed the Walton brothers (see infra) ), suggests their belief that, at, least in some circum- stances, punching out rendered permission to leave unnecessary. As a final example, Respondent's supervisors allowed employees to be late when returning to work upon expiration of lunch and break periods, for varying amounts of time and on varying numbers of occasions, and no instance of actual disciplinary action for violation of this rule appears of record. If this was a "rule," as many of Respondent's witnesses testified, it afforded no standard other than the varying dispositions of the various supervisors.i4 Whether or not considered as a rule, the evidence shows that Respondent's super- visors routinely ignored or tolerated late returns after lunch and break periods, without penalty. This was particularly notable in the case of employee Marcus. I credit the testimony of witnesses for the General Counsel that Marcus, hired about August or September 1962, was late (sometimes for as much as 20 to 45 minutes) in returning from his lunch break and that, as Marcus himself conceded, on various of these occasions Foreman Silvey made a joke of Marcus' tardinesses. As to the matter of giving notification of absences, it developed toward the end of Respondent's case that this was not a rule at all: Respondent merely expected its employees to give notice if possible. Several witnesses for the General Counsel at- tested without contradiction that they had been absent without prior notice on various occasions, some of recent vintage, without discharge or reprimand. Re- spondent's evidence regarding disciplinary action is not impressive. In the three cases alluded to by Foreman Worley, the evidence shows that all three employees (two allegedly "discharged" in the summer and one in the fall of 1962), simply never returned to work, and thus were not "absent" but quit.15 And two of the instances cited by Foreman Plott (involving repeated "laying out" by employees Flanagan- and Hughes), despite warnings. occurred a few days prior to the hearing, and are less persuasive for that reason.16 Considering all the pertinent evidence it shows a pre- ponderant tendency on Respondent's part to be lenient in this area at all times.17 11 In this instance , employee White on many occasions over a considerable period of time punched "out" the timecard of his foreman , at the latter's request. When this practice was brought to Amsterdam's attention he strongly reprimanded the foreman but did not discharge him or the employee. Whether or not the "rule" applies where a foreman's card is involved , which Respondent disputed at the hearing, is a question of interpreta- tion I do not pass upon but it is evident that the employees testifying to this incident thought that Respondent forgave a violation in this instance. 14 In theory, this rule was as important as the one concerning leaving the plant, which Amsterdam considered a strict one , because employees leaving the plant and not clocking out were in effect "stealing time" from Respondent. But this was equally true of em- ployees returning late from lunch and break periods, during which they- were not required to "clock out." 15 Thus Respondent had no occasion to'discharge any of these three and, since discharge was discretionary, might never had done so had they reported to work after 1 or more days of absence and had some justifiable explanations therefor 18 Plott's testimony is the more unimpressive because after asserting that it was the policy that "we have to discharge them for laying out without calling in" after one warn- ing, he admitted that Flanagan and Hughes had "laid out" at least twice before the final such instance causing their respective discharges. 17 During the "hunting season" of 1962, Respondent let off an offender after his super- visor, Smith , sent him to Amsterdam. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence concerning practice under the "rule" against leaving the plant during working hours without permission presents a mixed picture of nonenforcement and enforcement. This evidence relates primarily to the night-shift employees and super- visors in the main plant. Amsterdam (who identified this as a "strict" rule), McMillan, and some other supervisors specified that discharge was the penalty for an infraction of this require- ment. Foreman Whaley, on the other hand, stated that he would merely warn an offending employee whose absence was not for, as I interpret him, the balance of the shift or a similar prolonged period. And while Forelady Smith stated that she "would" discharge a first offender, she did not, as described in the preceding note, do so on one recent occasion.ia But even more indicative evidence is that pertaining to compliance with and en- forcement of this "rule." First, there is the testimony, which I credit, of various employee witnesses for the General Counsel to a fair number, in the aggregate, of occasions in the period of 2 to 3 years antedating the hearing, including the year 1962, upon which, to the knowledge of their respective supervisors, employees left the plant during working hours without permission for a wide variety of reasons: to obtain sandwiches or other food, to make purchases of other items, to see to their children, to pay bills, and the like. - Second, there is considerable testimony that departures of employees in various night-shift departments, in pursuit of such errands, was a common occurrence more or less up to the time of Allen's discharge. Undoubtedly, many of these observed de- partures were effected with permission, and how many lacked permission could not, in the nature of things, he attested to by the observing witnesses. Without relying on the convictions various witnesses expressed that the night-shift employees were gen- erally leaving without permission, I find, on the basis of various particular instances as to which there is proof that no permission was sought, that permission was not sought in some appreciable portion of the considerable volume of departures involved in this general pattern of going and returning. Given the considerable volume of this general departure traffic, the modest size of the plant, the relatively small number of employees in the various departments, and Respondent's laxity in rules enforcement generally, I would do the process of fair adjudication a disservice if I did not also infer, as I do, that a fair proportion of this general traffic involved departures known by the corresponding supervisors to lack their authorization. 19 In support of general assertions that this rule was enforced, Respondent sought to establish five illustrative instances occurring, respectively, in April (one), October '(two), November (one), and December (one) 1962. Respondent's contentions concerning the discharges of Evans in April, and of the Walton brothers in November and December, respectively, are made out on the evidence of record, although there had been some earlier and known but unpenalized transgressions on the part of the Waltons and their discharges occurred after service ,of the charge herein upon Respondent. ' Respondent's contentions are not, however, made out by one of its October illustrations, that of Foreman Worley's son, who simply left 'the plant not to return. Thus; Respondent was never called upon to dis- charge him and, as in the cases of Flanagan and Hughes, supra, non constat that he would have been discharged had be returned during the shift or the next day. In 'the other case, Elders was discharged but, on an examination of the actual facts lead- ing up to his discharge, it is reasonably clear, as I find, that he was discharged for letting his work pile up by leaving his post, about which he had been previously cautioned and reprimanded, and not for leaving the plant without permission.20 is Foreman Silvey stated that he was "supposed" to discharge violators but that, in practice, he referred cases of violation to iMeMillan' for the latter's decision as to what, 'if'any, action to-take ' "Witnesses to this general traffic freely conceded'that they could not say whether the departing 'employees had or had not obtained permission, or whether any unauthorized departures became known to, the corresponding supervisors., But it was equally impossible for them to know to what extent unauthorized departures were known to the supervisors, leaving the'matiter open to my 'drawing a reasonable inference based oh all the pertinent 'circumstances. 20 On the occasion of his discharge and various similar ones in the weeks prior to his discharge, this employee stepped outside the plant at intervals to drink alcoholic beverages, but did not leave Respondent 's premises. ' CAMEO LINGERIE, INC. 535 FINDINGS AND CONCLUSIONS CONCERNING TIIE "RULES" Based upon the foregoing review and analysis, and in addition to the various specific findings therein made , some broader findings and conclusions are warranted with respect to the asserted "rules," viz: 1. Respondent's pattern of "rules" notification was altogether too random, sporadic, and unsystematic to place all employees on notice of the existence, as rules, of the various requirements Respondent advanced in this case. 2. As to the two "rules" Respondent advanced in defense of the discharges of Caudill and Allen: a. The requirement concerning notification of absences was never promulgated as a rule; and b. Respondent had no uniform or consistent policy with respect to the imposition of disciplinary action for transgression of either of these norms , whether viewed as "rules" or otherwise . Rather, Respondent overlooked various such transgressions and, in determining whether or not to impose any disciplinary action, acted on an ad hoc and discretionary basis. Cameo Lingerie, Inc. and Sea Isle Manufacturing, Inc. and Inter- national Ladies' Garment Workers' Union, AFL-CIO. Case No. 24-CA-1781. August 27, 1964 DECISION AND ORDER On January 27, 1964, Trial Examiner Horace A. Ruckel issued his Decision in the above-entitled proceeding, finding that the Respond- ents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions and a supporting brief and the Respondents 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 Mem- bers Leedom and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and, although it finds merit in certain of the General Counsel's exceptions, nevertheless adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. 1. The Trial Examiner held that the General Counsel had failed to establish that the Union had been designated as bargaining repre- sentative by a majority of Respondents' employees as of March 4, 1963, the date of the Union's initial demand for recognition. This 148 NLRB No. 60.