Malone Knitting Co.

MALONE KNITTING COMPANY 643 In addition to the statement of Powell to Skinner quoted above, Powell also dur- ing the time involved stated to the financial secretary of Respondent (in the summer of 1963 ), Peter Lannen, that "he wasn't going to dispatch the old son-of-a-bitch [DiBoff] he was on List No. 2, regardless." In July 1963 DiBoff registered a complaint with the general offices of the United Brotherhood of Carpenters and Joiners of America in Washington , D.C., concerning Respondent's refusal to give him a referral. In 1960, as previously mentioned , while DiBoff was employed on St. Paul Island, Powell had an occasion to criticize him for using laborers to do carpentry work. In June 1963 an election was held for the position of business agent for Respond- ent. Powell, who occupied the position, was a candidate for reelection . The election was rerun in August 1963, after an appeal was taken to the general offices of the Union that the first election had not been properly conducted . In both instances Powell prevailed . DiBoff was one of the union members who campaigned strongly against Powell. H. Conclusion A union representative administering a hiring hall must at all times maintain objectivity and not permit himself to be influenced in the performance of his duties by his emotional reactions to job applicants ; he has a grave responsibility in this regard. It appears that Powell was in fact annoyed by DiBoff's reaction to the change in his list placement and to his failure to get a referral , and Powell expressed his feelings to Frank Skinner that he "didn't give a damn if he [DiBoff] ever goes to work," and similarly to Financial Secretary Lannert. But , in the operation of a nondiscriminatory hiring hall, Powell was under just as much an obligation not to discriminate in favor of DiBoff as not to discriminate against him . Some of the members of Respondent were desirous of granting him "special dispensation" for referral, because of his age and long union membership . The issue to be resolved first is whether there has been a discriminatory application of the hiring hall proce- cedure in the case of DiBoff. I cannot conclude that counsel for General Counsel has sustained the burden of proof that the referral of any of the list No. 2 men mentioned herein constituted a discrimination against DiBoff; and there is no evidence of any other occasion on which DiBoff could have been referred in accordance with the ratio requirements of the exclusive hiring agreement . Accordingly , I find that there has been no violation of Section 8(b)(I)(A ) or (2) by Respondent, and I shall recommend that the com- plaint be dismissed. CONCLUSION OF LAW 1. Raber-Kief, Inc., and the Alaska Chapter of the Associated General Contractors of America, Inc., are each employers engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. 2. United Brotherhood of Carpenters & Joiners of America, Local 1281, AFL- CIO, Respondent herein, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in any unfair labor practice as alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint be dismissed. Malone Knitting Company and International Ladies Garment Workers' Union, AFL-CIO. Case No. 1-CA-4628. May 17, 1965 DECISION AND ORDER On February 1, 1965, Trial Examiner Sidney Lindner issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain 152 NLRB No. 68. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affirmative action, as set forth in the attached Trial Examiner 's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief, and the General Counsel filed' a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning 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 entire record in this case, including the Trial Examiner 's Decision, the exceptions, and briefs, and hereby adopts the Trial Examiner's find- ings, conclusions, and recommendations.2 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 Respondent, Malone Knitting Company, Wolfeboro, New Hamp- shire, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i The Respondent's contention that the Trial Examiner assumed the role of prosecutor throughout the hearing , improperly asked questions which tended to elicit information supporting the General Counsel 's case, and erroneously placed the burden of proving its innocence upon the Respondent , is completely without merit Our consideration of the entire record shows no basis for a conclusion that the Trial Examiner was biased, against the Respondent 2 Chairman McCulloch and Member Panning agree with the Trial Examiner that the lack of direct evidence as to whether Respondent knew of Oulton's union activities does not preclude us from finding, on the basis of the strong circumstantial evidence as to- such knowledge , the hurried and precipitate nature of the discharge , and Respondent's unconvincing explanation therefor, that Respondent was in fact motivated in discharging her by its opposition to her union activities. Member Jenkins would dismiss that portion of the complaint alleging the discrimina- tory discharge of Ruth Oulton , as Respondent's knowledge of Oulton 's organizational, activity or sympathy for the Union at the time of her discharge can be lnferied only from circumstantial evidence, principally, the small size of Respondent 's plant and the community where it is located In his view , such an interence is not warranted. Osceola County Co-Operative Creamery Association v N.L R.B., 251 F 2d 61 (C A. 8 ; NL.RB v. Roberto Alvaro Manufacturing, Inc, et al , 327 F. 2d 998 (C.A. 1). On the other hand, the record clearly shows , apart from the small size of Respondent's plant or the community , that at the time of Bushman 's discharge, Respondent was aware of Bushman's union sympathies and organizational activity In these circumstances, ands on the basis of the entire record , Member Jenkins agrees with his colleagues that Bush- man was discriminatorily discharged TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding heard at Laconia, New Hampshire, on September 23, 24 , and 25, 1964,1 pursuant to a charge and an amended charge filed June 3 and 17 , respectively, Unless otherwise indicated all dates refer to 1964. MALONE KNITTING COMPANY 645 -and a complaint and notice of hearing issued July 16, presents issues as to whether Malone Knitting Company, Respondent herein, threatened its employees and unlaw- fully interrogated them concerning their union activities, sympathies, and adherence, and whether Respondent discharged two employees for union activity. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Massachusetts corporation maintaining its principal office and place ,of business on Factory Street in Wolfeboro, New Hampshire (the only plant involved in this proceeding), is therein engaged in the manufacture, sale, and distribution of infants' and children's knitted garments. It annually ships goods and materials val- ued in excess of $50,000 from its Wolfeboro plant to points outside the State of New Hampshire and annually receives goods and materials valued in excess of $50,000 directly from points outside the State of New Hampshire. Respondent is admittedly engaged in commerce within the meaning of the Act and I so find. H. THE LABOR ORGANIZATION INVOLVED International Ladies Garment Workers' Union, AFL-CIO, the Charging Party, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background, renewal of union activity; interference, restraint, and coercion On January 12, 1962, the Union filed a petition for certification of representatives with the Board docketed as Case No. 1-RC-6769. An election was held on Feb- ruary 17, 1962. Of 77 ballots cast, 21 were for the Union, 52 against the Union, and 3 challenged. The Union thereafter timely filed objections to the conduct of the election. On March 28, 1962, the Regional Director for Region 1, having concluded that there was no merit in the Union's objections, recommended that the results of the election be certified. Accordingly, this was done. In March 1964, Ruth Oulton, a flatlock machine operator in Respondent's employ, wrote a letter to Nelson Armitage, International representative of the Union, who was active in the 1962 organizational efforts at Respondent's plant. As a result of this contact, Armitage called on Oulton and other employees at their homes. On April 6 the Union again openly commenced activity in an attempt to organize Respondent's employees. Thus,Armitage testified that on April 6 he and another organizer distributed leaflets on a public road near the plant announcing a union meeting on April 8. On April 17 the Union filed a petition for certification of representatives with the Board which was docketed as Case No. 1-RC-7886. In the election conducted by the Board on May 7, of 99 eligible voters, 23 cast ballots for the Union, 63 against the Union, and 11 were challenged. On May 19 the Regional Director certified the results of the said election. While the Union's organizing campaign was in process Respondent' s assistant plant manager, Ida Beihl, called a number of employees to her office to speak to them individually. True, as Respondent points out in its brief, it was customary for Beihl to call new employees to her office during their probationary period 2 to review their average production. The uncontroverted evidence reveals that she took these opportunities to also engage the employees in conversation about the Union. It is the General Counsel's contention that while Beihl was thus engaged she committed violations of Section 8(a) (1) of the Act. Donna Charles, who commenced her employment with Respondent on March 20, 1964, testified without contradiction that about a week before the Board-conducted election on May 7, she was told by Forelady Christine Rollins to go to Beihl's office. Beihl discussed with Charles her averages 3 and various benefits set forth in the blue book, such as paid vacations, paid holidays, and insurance. Although Charles said they talked about the Union, she could not remember what Beihl told her about the 3 According to the employees' manual or "blue book," as it was commonly known, new employees are considered probationary employees for a period of 3 months a This term Is used synonymously with an employee's average production based on piecework rates. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. Upon having her recollection refreshed by reference to her pretrial affidavit, Charles testified that Beihl told her "if the union got in to forget about the vacations and paid holidays." Charles testified also that Beihl told her to tell anybody who might inquire whether anything was said about the Union, that they talked about her averages and the blue book At the conclusion of the conversation, which lasted a half an hour or more, Beihl told Charles to make up her own mind about the Union. Nancy Tibbetts, who commenced her employment in the Respondent's stitching room as a machine operator on March 18, 1964, testified without contradiction that during the last week in April she was directed by Forelady Rollins to Beihl's office. They talked in Beihl's private office behind closed doors for 20 to 25 minutes. Beihl told Tibbetts that her averages, which had dropped, should be brought up to the minimum wage. Beihl talked about employee benefits described in the blue book. Beihl asked Tibbetts how she felt about the Union. Beihl also inquired if Tibbetts had signed a union card and who had given her the card to sign. Tibbetts testified she asked Beihl about some of the rumors she had been hearing in the stitching room, that the employees would get higher wages or the plant would close down if the Union was successful in organizing Respondent's employees. In answer, Beihl said that if the Union got in the plant might close down because of financial difficulty. Beihl also described an incident she had observed at Respondent's plant in Massa- chusetts, where some of the women walked out of the plant crying when they lost their jobs because of the Union. At the conclusion of the conference, Beihl instructed Tibbetts to tell anybody who might inquire why she went down to the office that Beihl was talking about her averages. Tibbetts also testified that on the day before the election, Ted Malone, Respond- ent's vice president and assistant treasurer, spoke to all of the employees In the course of his speech he said he hoped he knew where the workers stood, because if the Union did get in he might have to close down because of financial difficulty. Barbara Ames was hired by Beihl as a flatlock stitching operator on March 16, 1964. She testified without contradiction that in the latter part of April she was called to Beihl's office where they talked about Ames' average production. Because of rumors which Ames heard around the plant she inquired of Beihl if it was true that Malone would close the doors if the Union got in. Beihl answered this was possible because of Respondent's financial difficulties. Beihl went on to tell Ames that when the Union represented the employees in Respondent's Massachusetts plant, a number of women were crying at their machines "because they were put out of work by the union and they were still trying to get their wages from the union which they were supposed to have been paid if laid off" but they had not received such wages. Ames testified further that Beihl inquired if she was for or against the Union, but immediately told her not to answer the question since she was not "allowed" to ask such a question Finally Ames testified that Beihl said there were some girls earning $2 per hour at piecework rates and she did not see why they would want a union in the plant, since it was possible that with a union, the plant might close down because of finan- cial difficulties. I find that Respondent violated Section 8(a)(1) of the Act by Beihl's interrogation of Tibbetts, Ames, and Davis set forth fully above. I find also that the statements of Beihl and Malone regarding the possibility of the plant closing if the union organizational drive was successful were prima facie threats to penalize the employees for engaging in activity protected by the Act. It may be that if the employer in the course of his remarks to employees explains the economic circumstances which underlie them, the pinna facie case would be rebutted and his statements would be privileged under Section 8(c). In that event, at any rate, some inquiry would be possible into whether the employer's statement was made in good faith or was merely a threat intended to deter concerted action protected by the statute. In the instant case the employees were not confronted with any explanation. If anything Beihl's assertions about the possible plant closing was embellished by her remarks regarding the crying by women over job losses at the Massachusetts plant when the Union represented the employees there. So far as the record herein shows, there was no reasonable basis for the "possibilities" asserted by Malone and Beihl. As the court of appeals stated in International Union of Electrical, Radio, and Machine Workers, AFL-CIO (NECO Electrical Products Corp.) V. N.L R B., 289 F. 2d 757 (C.A.D C.), "It seems clear that Congress did not intend to protect an unqualified assertion of such importance unless the utterer can show that he had MALONE KNITTING COMPANY 647 some reasonable basis for it .... The Act does not ... confer a license to make an assertion of a specific and critical fact that is drawn from thin air." I find that the assertions by Beihl and Malone to the employees set forth fully hereinabove were threats in violation of Section 8(a) (1) of the Act. I find also that Beihl's remarks to employee Charles to forget about vacations and paid holidays if the Union got in, were threats in violation of Section 8(a)(1) of the Act. B. The discharges Ruth Oulton was employed for about 10 years in Respondent's stitching room, primarily as a flatlock operator. Her last day of work was April 10, 1964. I have heretofore found that the Union's renewed organizational activity at Respondent's plant, which commenced on April 6, was triggered by a letter from Oulton to Armi- tage in the latter part of March. Thereafter Oulton openly proselytized for the Union on the plant premises. She informed employees in the stitching room about the April 8 union meeting where she and other employees signed union cards. She distributed about five or six union cards while at her machine in the stitching room. The signed cards were returned to her in the same area. Oulton testified without denial that about 4:15 p.m. on Friday, April 10, she was assigned to work on a new style. Forelady Rollins thereafter inquired if Oulton was caught up with her work. Upon Oulton's affirmative reply, Rollins stated she would place some work in Oulton's box, which Oulton could start on Monday morning. About 2:30 p.m. on Sunday, April 12, Oulton received a telephone call at her home from Forelady Rollins who said she was sorry and hated to do this, but Malone had reviewed the averages and since Oulton's averages were low she would have to take a layoff for a while until work came into the plant that she could do. Forelady Rollins also told Oulton that Malone was not going to make up pay any longer for any employee who could not produce average. Oulton was instructed to come in for her paycheck on Monday morning. She has not been employed by Respondent since April 10. Respondent's answer avers that Oulton was terminated for justifiable cause and had no connection with and was not the result of her union activities. At the hear- ing it contended that Oulton was 1 of 4 employees terminated on April 10, after a review of the work performance records of some 26 employees in the stitching room whose average earnings on piecework were below the minimum wage of $1.25 per hour. Additionally, in its brief the Respondent disclaims any knowledge of Oulton's union activities. I turn therefore to the question of Respondent's knowledge of its employees' union activities. The General Counsel did not adduce any direct evidence of Respondent's knowl- edge of Oulton's union activities. He contends in his brief that such knowledge may properly be inferred on the basis of the record as a whole The Respondent on the other hand adduced testimony from Malone and Beihl that they did not become aware until April 18 4 that the Union was attempting to organize the employees. The Board with judicial approval has found that where the activities occur among the employees in a small plant "it is a reasonable inference that information [as to union activities] came to the notice of the higher management." N.L.R.B. v. Abbott Worsted Mills, Inc., 127 F. 2d 438, 440 (C.A. 1); N.L.R.B. v. Quest-Shon Mark Brassiere Co., Inc., 185 F 2d 285 (C.A. 2); Angwell Curtain Company, Inc. v. N.L.R.B., 192 F. 2d 899 (C.A. 7); Wiese Plow Welding Co., Inc., 123 NLRB 616; Tru-Line Metal Products Company, et al., 138 NLRB 964. In the record of the proceeding herein there appears the following: (1) Union Representative Armitage visited employees at their homes in the "small country town" of Wolfeboro 5 for a week in March 1964; (2) on April 6 union organizers distributed handbills on the main street in Wolfeboro in the vicinity of the plant, advertising the union meeting to be held on April 8; (3) the fact that organizational activities were extensive inside the plant as well as outside and were not carried on in a clandestine manner; and (4) the small number of employees at the plant (80 to 90). 4 By notice from the Regional Office that the Union filed a petition for certification of representatives in Case No. 1-RC-7886 on April 17. 6 So characterized by Respondent's counsel in his questioning of Forelady Rollins. It's 1964 population was 2,689. See Rand McNally Commercial Atlas and Marketing Guide, 1964 edition. '648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is also now well settled that such knowledge may be based on circumstantial evidence. F. W. Woolworth Company v. N.L.R.B., 121 F. 2d 658-660 (C.A. 2); N.L.R.B. v. C. W. Radcliffe and W. W. Mancke d/b/a Homedale Tractor & Equip- ment Company, 211 F. 2d 309, 315 (C.A. 9), cert. denied 348 U.S. 833. Based on the foregoing together with Forelady Rollins' testimony that the situa- tion in Respondent's plant is much different than in a larger plant; that by reason of the small size of the plant and the confined area from which its employees come, Respondent's representatives and the employees know each other on a personal basis and as a matter of fact socialize to some extent off the premises, it is neither reason- able nor plausible to believe that Respondent's supervisors were not aware of the fact that union organizational activities had commenced on April 6, and that employ- ees Oulton and Bushman were actively engaged in promoting the Union at the plant. Malone testified that upon his return to the plant on April 10 6 from Springfield, Massachusetts, where a plan had been formulated to no longer "support nonproduc- ing employees," he, Beihl, and Rollins undertook a review of the records of all employees.? Malone then decided to terminate Oulton and three other stitching room employ- ees.8 Malone assigned as the reason for termination, the inability to make average minimum wage resulting in the Respondent's having to make up the difference. Oulton readily admitted that during her 10 years of employment there were many times when she failed to make the average minimum wage. In spite of this record she had never previously been discharged or otherwise reprimanded. It is true that in November 1963, Oulton together with a number of other employees were laid off due to lack of work, and one of the criteria used in the selection of the employees for layoff was low average production. Oulton was called back to work in December 1963. This, notwithstanding the fact that Malone testified that in November 1963 the employees were laid off because Respondent "just could not afford to make them [minimum wages] up any more." It will be recalled that Malone testified that the average production records from November 1963 were reviewed before his decision was made to terminate Oulton on April 10. The question now arises, what precisely do such records reveal. For the month of December 1963, Oulton's average hourly earnings were $1.389; for Janu- ary 1964, $1.309; for February, $1.296; for March, $1.193. For the week ending April 4, Oulton's average hourly earnings were $.945. For the week ending April 10, Oulton's average hourly earnings were $ 678. It is interesting to note as General Counsel points out in his brief, that as of the week ending April 4, which was the last week reviewed by Malone for the purpose of determining who should be terminated, Oulton failed to make her average ($1.25 per hour) in only 3 weeks of the last 14 weeks of her employments What appears to be more significant is the fact that of the 26 employees whose records were reviewed on April 10, Respondent continued in its employ up until the time of the hearing in the instant matter 10 machine operators,'° none of whom has made average since the said review. Indeed, Malone admitted that as of the date of the hearing Respondent probably had more employees who were not earning average than who were making it, even though Malone stated Oulton's employment was terminated on April 10 for the reason that Respondent no longer could support any nonproducing employees. A He was away from April 6. 1 At a later point Malone testified that only the records of those employees "that needed reviewing" was made. He stated they looked at the payroll records, and the average sheets going back to November 1963 (General Counsel's Exhibit No. 3) and then decided which employees would be further investigated They then looked over the records of 26 employees in the stitching room. 8 Brownell, Whiting, and Linnell "For the week ending January 25, 1964, Oulton's average was $1 178 Of 47 machine operators in the stitching room that week, Oulton was among 10 employees who fell below the $125 minimum wage and was the only one of the 10 who earned over $1.15 For the week ending March 21, Oulton's average was $1 162 Of 55 machine operators in the stitching room that week, 33 failed to make average and Oulton was 1 of 4 who earned over $1.15. For the week ending April 4, Oulton's average was $ 945 Of 56 machine operators in the stitching room that week, 39 failed to make average. Oulton was in the group of 29 whose average was less than $1 iii refer to Adjutant, Nichols, Bean, Whittier, McDuffee, Cummings, Nichols, Williams, Christe, and Ames. See General Counsel's Exhibits Nos 3 and 4. MALONE KNITTING COMPANY 649 Oulton testified that Beihl never talked to her about her averages . The only occa- sion on which Malone made any comment was in May 1962 when Oulton went to Malone's office to tell him she was going to the hospital . During their conversation Malone complimented Oulton on the good work she did and said she was "a little bit slow on a lot of it." Oulton told Malone she tried to do her work thoroughly, that she could not help the slowness, it was just her nature. Oulton also testified that on two or three occasions Beihl and Rollins requested Oulton to show other machine operators her method of sewing. In fact about a month and a half prior to being terminated , Beihl complimented Oulton on the good job she was doing setting in sleeves on a cap-shoulder shirt . Beihl told Oulton many operators were having trouble getting the sleeves in and, in an effort to help them in this work, Beihl had such operators observe Oulton. Finally, Respondent admits that after its review of the average production records on April 10, it (through Rollins) warned other stitching room employees whose names were on the list of 26, that they would have to bring up their averages in order to remain in Respondent's employ. With respect to Oulton and the three others terminated on April 10, Beihl said they had been spoken to before. While it is true that Oulton , like all other machine operators in the stitching room, was period- ically advised by Forelady Rollins that her average was either up or down, it is clear from Oulton's testimony , which I credit, that this was Respondent's policy car- ried out through Forelady Rollins and was not in the nature of a warning. Notwith- standing the fact that Respondent was unable to hire competent operators for its flat- lock work and Malone's testimony that "if you have to choose between two, one who does $1.25 an hour and does sloppy work and one who does $1.15 and $1.20 an hour and does excellent work we always lean over backward toward one who does excel- lent work," 11 Oulton was summarily terminated without warning within hours after Malone returned to the plant on April 10. In short, we have here a case, in which the evidence is clear that Respondent, dur- ing the 10 years of Oulton's employment, periodically called to her attention that she was not producing average. It never, however, took disciplinary action of any nature, but on the contrary, condoned her shortcomings and gave her special con- sideration 12 in order to assist her to make average. The record shows that in terms of quantity for the period under review , which was used as the basis for termination (November 1963 through April 4, 1964), Oulton failed to make average in only 3 weeks. These facts, taken together with the timing of the discharge 13 and the abruptness of the discharge without prior warning, do not "stand up under scrutiny " See N.LR.B. v. Abbott Worsted Mills, Inc., supra. The only fair inference to be drawn is that Respondent discharged Oulton not because she was unable to produce average and it was not longer going to "support" by way of makeup under-average producers, but rather for the purpose of eliminating from its plant a known union protagonist so as to discourage further union activities of its employees . I find that Oulton was discriminatorily discharged in violation of Section 8(a)(3) and (1) of the Act. Faye Bushman was employed by Respondent for the first time on February 2, 1948. She was a flatlock operator until November 1948 when she left voluntarily to care for her children at home. She returned to work on January 3, 1950, in the same job. Bushman worked continuously until August 1953 when she was pro- moted to assistant floorlady. On September 27, 1954, Bushman was promoted to forelady of the stitching room. She remained in this capacity until November 30, 1961, when she was discharged because of a "drinking problem " Bushman was again hired by Respondent in November 1962 as a flatlock operator. On May 26, 1964, as Bushman was entering the front door of her house, she found a handwritten note signed by Forelady Rollins stating, "I have been instructed by the Company to inform you that since you have been out 14 they have filled the machine with a full- time operator and have dropped you from the payroll." That evening Bushman spoke to Malone over the telephone at his home. She asked Malone for the reason of her discharge, noting that she had permission to stay out to take care of her grandchildren. Bushman testified Malone replied she had been losing a lot of time and her machine was filled with a full-time operator. 11 Respondent conceded at the hearing and in its brief that Oulton did good work. 12 It kept Oulton on one line of work, the 681 line. 13 As found previously , within hours after Malone returned to the plant on April 10 and during the week the Union started organizational activity among Respondent 's employees 16 Bushman had not worked at the plant from about 1 p.m. on May 20, the details of which will be discussed hereinafter. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bushman explained to Malone that the time she lost away from work could not be helped. Bushman then gave Malone the names of other machine operators who were away from the plant for longer periods of time than she was, yet Respondent did not discipline them. Malone told Bushman he was sorry, he had his mind made up, and that "is the way it stands." Bushman has not been reemployed by Respond- dent since May 26. Respondent's answer avers that Bushman was terminated for justifiable cause and had no connection with and was not the result of her union activities. At the hear- ing Respondent contended that Bushman was discharged for excessive excused and unexcused absences. In its brief the Respondent argues additionally that "the infer- ence must be drawn that [she] had not fully recovered from her drinking habits and this was reflected in her absenteeism." The General Counsel contended at the hearing and in his brief that Bushman was discriminatorily discharged because of her union activities. Bushman testified she attended the April 8 union meeting, where she signed a membership card, and was appointed to the organizing committee. She distributed about 18 union cards to employees inside the plant at her machine as well as out- side on the plant premises. All of the approximately 18 union cards were returned to Bushman on Respondent's premises. Bushman also discussed the Union with many employees at her machine and during coffee breaks and the lunch period. Bushman was the Union's observer at the May 7 election. Bushman testified without denial that about 2 or 3 days before the May 7 election, Malone stopped at her machine shortly before the afternoon break period and asked her to come to his office. Bushman went to Malone's office at 2:30 p.m , the start of the break period, and remained there until about 3:45 p.m during which time Malone engaged her in conversation Only Malone and Bushman were in the office. Bushman testified further that Malone stated she was in a position to give him some information about the general feeling of the girls in the shop, noting that Bushman had been a forelady and was in contact with the girls. He specifically wanted to know why the girls wanted a union in the shop. Bushman told Malone the girls felt that they should be making more money, that they were unhappy about being moved from one machine to another, and that they had difficulty learning the work on infants' garments, which operation had recently been transferred to Wolfe- boro from the Springfield, Massachusetts, plant. Malone told Bushman that if the Union got into the plant and it came to the point where there was a strike, he would have to close the plant because he just simply could not afford another strike. There had been a strike in Springfield and there were many thousands of dollars involved in it. Bushman asked Malone about Blue Cross benefits Malone stated Respondent would no longer be paying for the individual's Blue Cross. He noted that the Union had a medical plan, but that he had no idea of its benefits. Malone went on to mention to Bushman that she was aware he was not for the Union and he did not know whether she was or was not. Bushman replied she was not going to commit herself. Malone also told Bushman the situation in the shop would be entirely different if the Union was successful in that the girls would not be able to come to him with their problems, but would have to take them to a union steward. Malone commented that "it would be altogether a different atmosphere." Although Bushman refused to commit herself one way or another regarding her union sentiments in the conversation with Malone, she was the Union's observer at the Board-conducted election held on May 7. Bushman testified that on the morning of May 20 she called Forelady Rollins to her machine and explained that her daughter-in-law was "expecting" and she would have to stay out of work to take care of the other grandchildren while their mother was hospitalized. Rollins, according to Bushman, said it would be all right, but she hoped it would not be that week because Respondent was rushed on the 426 line, the infants' pants. Bushman replied that the doctor's latest advice to her daughter-in-law was that she was not expected to go to the hospital that week. Bushman testified further that she told Rollins she liked the work on the 426 production line,15 to which she had recently been assigned, and if the prices were adjusted she would like to stay on the production line work. Rollins told Bushman she did not know of any reason why she could not do so. That afternoon about 1:05 p.m., Bushman's son called her at the plant to advise that he was taking his wife to the hospital and he would pick Bushman up at the plant. I5 This work is to be distinguished from the regular flatlock operation. MALONE KNITTING COMPANY 651 Bushman told Rollins of this latest development and said she would have to leave in 20 minutes . Rollins, according to Bushman , remarked , "Oh golly, it's too bad it had to happen now." Rollins asked Bushman when she thought her daughter-in- law would be home from the hospital . Bushman answered that assuming the baby was born today, she probably would be home by Sunday. Rollins then asked if Bushman could report for work on Monday. Bushman replied that would depend upon her daughter-in-law's condition . After some further discussion about complica- tions which might develop, Bushman told Rollins she would let her know the night before she would be returning to work. Rollins said , "O.K." Rollins' testimony regarding the May 20 conversation corroborates Bushman in practically all respects , except that Rollins testified Bushman said she would let Rollins know if she could not come in to work on Monday, May 25. I credit Rollins' testimony in this regard. Rollins reported to Beihl that she excused Bushman for Thursday and Friday, and that Bushman would report for work the following Monday or would let Respondent know. On May 25 Rollins was called down to the office , where Malone and Beihl inquired if Bushman was absent.16 On May 26 Beihl again inquired about Bushman and was told by Rollins that Bushman had not reported for work. Beihl testified she took the matter up with Malone because of a production problem at the plant. Malone told Beihl they would have to keep the flatlock machine operat- ing with seven employees who reported for and worked 8 hours every day in order to maintain the plant's production and get out its orders . At this point Malone decided to discharge Bushman and Rollins was instructed to notify Bushman which she did by the handwritten note, set forth above. It is worthy of note that even though the discharge notice to Bushman written and delivered to her home on May 26 stated .. they have filled the machine with a full-time operator ... ," the fact is , as Beihl admitted on cross-examination , that it had been practically impossible for Respondent to recruit experienced flatlock operators during the past year,17 and the opening created as a result of Bushman's discharge was filled on the morning of May 27 by calling upon an inexperienced girl to come to the plant and file an application for the job.18 I am convinced and find that Bushman was discharged because of her union sym- pathies and activities and not as the Respondent insists because of her excessive absenteeism from work . The Respondent's assertion in its brief that such finding is not supportable because it had not known before the discharge about Bushman's union activities is dismissed as contrary to the evidence . I have already determined that the Respondent's knowledge of the union activities of its employees is inferable from the fact that they were conducted in a small plant in a small community. The applicability of this theory to establish the Respondent 's knowledge of Bushman's activities is especially appropriate because as related they were so extensive. The Respondent's knowledge is shown by even more compelling factors. Bushman's declaration to Malone in the course of his lengthy discussion with her concerning the Union in the plant , that she would not make any commitment as to where she stood regarding the Union, should have removed any uncertainty as to her position. Any doubts which Malone may still have had that Bushman was committed to the Union must have been removed when she openly appeared at the representation election as the union observer . The Respondent's argument in its brief that because Bushman was discharged after that election , such action could not have discouraged membership by employees in the Union , and was not therefore violative of the Act, merits no discussion . A discharge of an employee for engaging in union activities is proscribed by the Act regardless of the pendency of a representation election. I pro- ceed to a determination of the Respondent 's reason for the discharge-excessive absenteeism. The record reveals that Bushman was more frequently absent from work in December 1962, January, February, and July, 1963, and the first 2 weeks in March 16 Rollins did not remember If she was asked about any other employees who were absent from work that day 17 The Respondent conceded in its brief and at the hearing that Bushman was a well qualified , competent, and capable employee. 18 Respondent's managerial employees testified it takes from 6 months to 18 months to train a flatlock operator to the point where she is competent and able to make aver- age pay. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1964 than during any other periods since her rehire in November 1962 .19 Neverthe- less, the Respondent did not warn her, reprimand her, or threaten her with discharge. In fact the undisputed testimony is that it did not even talk to Bushman about her absences . Yet we find that months later Bushman is discharged for absences which were far less frequent and at a time when her record was showing marked improve- ment.20 The question necessarily arises why did the Respondent do nothing during the earlier period of excessive absences when it might reasonably have been critical, and why did it so precipitately discharge Bushman in May 1964 when its patience was not so severely taxed as before. The answer to the question posed is derived from a consideration of the circum- stances which obtained in May 1964 and not previously. The Respondent had just experienced the Union's second unsuccessful attempt to become the collective- bargaining representative of its employees . In the course of this last campaign by the Union, the Respondent had vigorously resisted and fought its efforts and had' even committed unfair labor practices, as found above, to defeat the Union in a Board-conducted election. The Respondent had endeavored to enlist Bushman on its side and failed. Worse yet, she turned out to have been one of the Union's most ardent protagonists . I am convinced that Bushman's abrupt discharge on the heels of the disclosure of her leadership role in the union movement , for a reason which had not provided sufficient provocation in the past even to warrant a word of criti- cism, reflects the Respondent's desire to get rid of this employee in retaliation for her union activities and to provide an object lesson to other employees of what would' befall them if they were to choose her course. This conclusion is reinforced by consideration of other factors. Bushman testified without contradiction that her attendance record was as good or better than that of other employees performing her identical work, who were not discharged. I credit her testimony, not merely because her unrefuted claim comes from a credible wit- ness, but because the Respondent could have presented evidence from its records, just as it did with respect to Bushman, to disprove her claim. I infer it did not pro- duce such evidence because it would have supported her claim that she was singled' out for disparate treatment. The only explanation reasonably presented for Bush- man's special treatment , different from that accorded all other employees , is offered by the fact that the Respondent particularly resented her loyalty to the Union. She had been reemployed despite her serious affliction. She was treated with fore- bearance and indulgence during an initial period of adjustment as reflected by the Respondent's silence in the face of her poor attendance record from December 1962 extending into March 1963. Instead of gratitude, which Respondent might have hoped for and which would have precluded Bushman's taking the Union's side in the face of Respondent's clear opposition, Bushman revealed herself as a union leader. I do not doubt that Bushman became persona non grata to Respondent when its hopes were not realized . I am satisfied that the motivation for Bushman's dis- charge was her union activity and not the asserted reason of excessive absenteeism, which I find to be a pretext. I have been mindful in reaching the foregoing conclusions of the Respondent's pressing need for Bushman's services during the days when she was compelled to look after her grandchildren. Respondent's explanation for her discharge would have been more persuasive if the evidence had shown her replacement by a skilled' operator whose services were so urgently needed that the Respondent could not afford to wait for Bushman's return to work, albeit it knew she would be back in another day or so. But she was not replaced by a productive employee Instead, the Respondent employed an inexperienced person who required at least 6 months training before she could approximate the skills necessary for the performance of Bushman's work. The defense speaks only of Bushman's total attendance record as a reason for her discharge. It does not expressly say that she was discharged because the Respondent during a production emergency was compelled to put another employee at her idle machine. But if the Respondent implies that this was a factor in her discharge the evidence shows no plausible support therefor. The Respondent could have coped with its production problem far more successfully merely by awaiting Bushman's return to work, which it knew to be imminent and availing itself 30 See Respondent's Exhibit No. 2 which shows that of the hours when work was avail- able, Bushman in December 1962 lost 593/ hours, in January 1963 she lost 72 hours; in February 1963 she lost 104 hours; in July 1963 she lost 86 hours ; and for the first 2 weeks in March 1964 she lost 56 hours. 20 For the period from March 16 to May 20 , 1964, when she was excused from work to take care of her grandchildren, Bushman was absent a total of 7 hours. MALONE KNITTING COMPANY 653 of her conceded outstanding ability rather than by substituting for her a wholly inexperience apprentice . Furthermore , even if it be assumed arguendo that Bush- man's absentee record constituted valid grounds for her discharge, where, as found herein, the circumstances reasonably indicate that her union activities weighed more heavily in the decision to discharge than did the other factors, such a discharge has been found to be violative of the Act. N.L.R.B. v. Whitin Machine Works, 204 F. 2d883 (C.A. 1). For all the foregoing reasons, I find that Bushman was discriminatorily discharged by Respondent in violation of Section 8(a)(3) and ( 1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Ruth Oulton and Faye Bushman, I will recommend that Respondent offer them immediate and full reinstatement 21 to their former or substantially equiv- alent positions, without prejudice to their seniority or other rights or privileges, and make each whole for any loss of earnings she may have suffered as a result of the discrimination against her, by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of her discharge to the date of the Respondent's offer of reinstatement, less her net earnings during such period with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Because the Respondent by its conduct violated fundamental employees rights guaranteed by Section 7 of the Act, and because there appears from the manner of commission of this conduct a disposition to commit other unfair labor practices, it will be recommended that Respondent cease and desist from in any manner infring- ing upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Malone Knitting Company is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies Garment Workers' Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act in the manner hereinabove found, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminating with respect to the hire and tenure of employment of Ruth Oulton and Faye Bushman, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, upon the entire record in this proceeding , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that the Respondent , Malone Knitting Company, its officers, agents, successors, and assigns, shall: ^ I am not including the usual "Armed Forces" provision in the Order and notice be- cause of the ages of the female employees ordered reinstated herein. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discouraging membership in International Ladies Garment Workers' Union, AFL-CIO, or any other labor organization , by discriminating in regard to the hire and tenure of employment of its employees. (b) Threatening employees with the closing of the plant or other economic repris- als if the Union was selected as the bargaining representative of its employees. (c) Interrogating employees concerning their union activities and sympathies. (d) In any other manner interfering with, restraining , or coercing employees in the exercise of their right to self-organization , to form, join, or assist the above- named or any other labor organization, to bargain collectively through representa- tives of their own choosing , to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection , or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Ruth Oulton and Faye Bushman immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their sen- iority or other rights and privileges , and make each whole for any loss of earnings she may have suffered as a result of the discrimination practiced against her, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying , all payroll records, social security payment records, time- cards, personnel cards and reports, and all other records necessary to determine the amount due as backpay. (c) Post at its plant at Wolfeboro , New Hampshire , copies of the attached notice marked "Appendix ." 22 Copies of said notice, to be furnished by the Regional Director for Region 1 (Boston, Massachusetts ), shall, after being duly signed by an authorized representative of the Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by said Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director , in writing, within 20 days from the date of this Decision and Recommended Order, what steps the Respondent has taken to comply therewith.23 21 In the event that this Recommended Order shall be adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order be enforced by a United States Court of Appeals , the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order " ^ 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 NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Interna- tional Ladies Garment Workers' Union, AFL-CIO, or in any other labor organi- zation, by discriminating in any manner with regard to hire, tenure, or any term or condition of employment. WE WILL offer to Ruth Oulton and Faye Bushman immediate and full rein- statement to their former or substantially equivalent positions , without preju- dice to their seniority or other rights and privileges , and will make each whole for any loss of earnings suffered as a result of the discrimination against them. WE WILL NOT threaten employees with closing of the plant or other economic reprisals if the above -named or any other Union were selected as their collective- bargaining representative. WE WILL NOT interrogate our employees concerning their union activities and_ sympathies. PACKERS HIDE ASSOCIATION, INC. 655 WE WILL NOT 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 or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor oragnization. MALONE KNITTING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of post- ing, must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele- phone No. 523-8100, if they have any questions concerning this notice or compliance with its provisions. Packers Hide Association, Inc. and United Packinghouse, Food and Allied Workers, AFL-CIO. Case No. 17-CA-2568. May 17, 1965 DECISION AND ORDER Upon a charge duly filed and served on November 12,1964, by United Packinghouse, Food and Allied Workers, AFL-CIO (hereinafter called the Union), the General Counsel of the National Labor Rela- tions Board, by the Acting Regional Director for Region 17, issued a complaint and notice of hearing, dated December 22, 1964, alleging that Packers Hide Association, Inc. (hereinafter called the Respond- ent), had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the complaint were duly served upon the Respond- ent and the Union. The complaint alleged in substance that, on or about October 8, 1964, the Respondent discharged Walter Mason, an employee, and has since failed and refused to reinstate him because of his activity on behalf of the Union. The Respondent filed an answer denying commission of the alleged unfair labor practices. Thereafter, on February 15, 1965, all parties to this proceeding filed with the Board a motion to transfer proceeding to the Board and stipu- lation of parties. Therein, the parties agreed upon a stipulation of facts. They also agreed that the charge, the complaint, the answer, and the stipulation, together with certain disciplinary notices incor- porated by reference therein, shall constitute the entire record in the case, and that no oral testimony would be necessary or desired by any 152 NLRB No. 67.