Hamburg Shirt Corp.

HAMBURG SHIRT CORPORATION 511 Hamburg Shirt Corporation and Amalgamated Clothing Work- ers of America, AFL-CIO Hamburg Shirt Corporation and Amalgamated Clothing Work- ers of America, AFL-CIO, Petitioner. Cases Nos. 96-CA-1867, 06-CA-1921,26-CA-1950,26-CA-1977, and 26-RC-2203. Decem- ber 30, 1965 DECISION AND ORDER On August 4, 1965, Trial Examiner Abraham H. Mailer issued his Decision in the above-entitled proceedings, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a) (1), (3), and (5) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect to the latter allegations. The Trial Examiner also found merit in certain objections to the election of July 17, 1964, and recommended that the election be set aside. Thereafter, the Respondent and the Charging Party each filed excep- tions and supporting briefs. The General Counsel filed an answering brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Members Fanning, Brown, 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 these cases, and hereby adopts the findings," conclusions, and recom- mendations of the Trial Examiner as modified herein.2 [The Board adopted the Trial Examiner's Recommended Order and set aside the election held on July 17, 1964, dismissed the petition for 'We find that Respondent's use of the questionnaire among its employees was unlaw- ful and violative of Section 8(a) (1), particularly because many employees were not told that their participation in answering the questions was voluntary nor given assurances that no reprisals would result Plains Cooperative Oil Mill, 154 NLRB 1003. In these circumstances, we and it unnecessary to consider the other rationale relied upon by the Trial Examiner in finding the questionnaire to be violative of Section 8(a) (1). 2 We also agree with the Trial Examiner's finding that when the Respondent received the Union's request to bargain on June 8, the Union held valid authorization cards from a majority of the Respondent's production and maintenance employees However, we do not find it necessary to determine, and we do not herein pass upon, the Trial Examiner's conclusion that an additional group of 23 employees, who were not essential in establish- ing the Union's majority, had not validly designated the Union as their bargaining representative 156 NLRB No. 51. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certification of representatives filed by the Petitioner in Case No. 26- RC-2203, and vacated all proceedings held in connection therewith.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE In Case No. 26-CA-1867, Amalgamated Clothing Workers of America, AFL-CIO, herein referred to as the Union, filed a charge on July 8, 1964,1 an amended charge on July 9, and a second amended charge on July 27. Upon said charges, the Regional Director for Region 26 of the National Labor Relations Board, herein called the Board, on September 3, issued a complaint on behalf of the General Counsel of the Board against Hamburg Shirt Corporation, herein called the Respondent, alleging vio- lations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq ), herein called the Act On September 2, the Union filed another charge against the Respondent in Case No. 26-CA-1921. Further charges in said case were filed by the Union on September 8 and October 7. On October 7 the Regional Director issued an amended and consolidated complaint. On October 8 the Union filed a charge in Case No 26-CA-1950, and on October 28 the Regional Director issued a second order consolidating cases and an amendment to the amended and consolidated complaint. In its duly filed answers to the original and amended complaints, Respondent denied the commission of any unfair labor practice. In Case No. 26-RC-2203, pursuant to a stipulation for certification upon consent election, an election by secret ballot was held on July 17. A tally of the ballots showed that there were approximately 116 eligible voters and that 118 ballots were cast, of which 43 were for the Petitioner (Union), 67 were against the Petitioner, 8 were challenged, and I was void. On July 24, the Petitioner filed timely objections to con- duct affecting the results of the election. Thereafter, the Regional Director caused an investigation to be made of the objections and, on August 19, issued and served upon the parties his report on objections in which he recommended that certain objections be overruled, that one be sustained, and that the election be set aside and a new elec- tion be directed. As to the remaining objections, he found that they raised material and substantial issues which could best be resolved on the basis of record testimony. Accordingly, he recommended that, if his other recommendations are not adopted, a hearing be directed as to these objections and that such hearing be consolidated with the complaint case. The objections are more fully discussed infra The Respondent filed timely exceptions to the Regional Director's report insofar as it related to the objection which the Regional Director sustained. On November 9, the Board ordered that a hearing be held to resolve the issues raised by certain of the objections and that such hearing be consolidated with the hearing in the complaint cases refei red to above. On November 13, the Regional Director issued an order consolidating Case No. 26-RC-2203 with the complaint cases hereinabove described. Pursuant to notice, a hearing was held before Tiial Examiner Abraham H. Mailer beginning on November 30 and terminating on December 15, 1964. Hearings were held in Crossett and Hamburg. Arkansas All parties were represented and were afforded full opportunity to be heard and to introduce relevant evidence At the out- set of the hearing, counsel for the General Counsel, pursuant to a telegraphic notice of November 23, moved to amend the complaint further to allege that Respondent by its agent William H. Sutton on or about November 12, had interrogated its employees concerning employee union membership, activities, and desires I granted the motion and consolidated the amendment, designated as Case No. 26-CA-1977, with the other complaints in the case. At the close of the hearing all pasties were given the oppor- tunity to present oral argument and to file briefs with me. Briefs were filed by counsel- for the General Counsel and by the Respondent. Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, an Arkansas corporation, with its principal place of business at Hamburg, Arkansas, where it is engaged in the manufacture, sale, and shipment of shirts. During the 12 months immediately preced- 'All the events in the instant proceeding, unless otherwise specified , occurred in 1964 HAMBURG SHIRT CORPORATION 513 ing the issuance of the complaint, Respondent manufactured, sold, and shipped from its Hamburg, Arkansas, plant, finished products valued in excess of $50,000 to points outside the State of Arkansas, and during said period received at its Hamburg, Arkansas, plant, from points located outside the State of Arkansas, materials valued in excess of $50,000. In view of the foregoing, I find and conclude that the Respond- ent is engaging in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Whether the Respondent interfered with, restrained, and coerced its employees-in the exercise of rights guaranteed in Section 7 of the Act by (a) surveillance,, (b) giving the impression of surveillance, (c) promises of benefits, (d) threatening to close the plant if the Union came in, and (e) interrogating employees concerning their union membership, activities, and desires. 2. Whether the Respondent discharged the following employees: Betty Jean Streeter, Carrie N. Leasure, Lula Taylor, Gay Nell Biggs, Imogene Cotton, and Dianne Jackson, and laid off Lois Williams because they joined the Union or gave aid or support to it. 3. Whether the Union represented a majority of the employees of the Respondent on June 5, 1964, when it made its request for recognition and bargaining. 4. Whether Respondent's refusal to bargain was based on a good-faith doubt as to the Union's majority. 5. Whether the election should be set aside. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The town of Hamburg, Arkansas, is the seat of Ashley County and at the last census had a population of 2,904. Until the establishment of Respondent's plant, Hamburg had no industry, and the businessmen of the town, comprising the chamber of com- merce, were anxious to secure the introduction of industry to improve the economy of the town. For that purpose they had organized the Hamburg Industrial Development Corporation and had been in touch with the State Industrial Development Corporation which was seeking to bring industry to Arkansas. During 1961-62, Bernstein and Son Shirt Corporation had decided to build another plant.2 Eventually, representatives of the Hamburg Industrial Corporation and Bernstein and Son Shut Corporation met, and the latter decided to establish a plant in Hamburg. The plan developed for the establishment of the plant called for the issuance of bonds in the sum of $300,000 by Ashley County which was to provide for the erection of a plant building and the defrayal to the Respondent of its training costs.8 Before the bond issue was passed, various businessmen at Hamburg endorsed a note to a bank to raise $30,000 with which to purchase a site for a plant to be erected and raised additional funds to be given to Respondent to inaugurate the training program. The note was retired when the bond issue was floated. A new corporation, Hamburg Shia Corporation, the Respondent herein, was formed as a subsidiary of Bernstein and Son Shirt Corporation, and the Respondent entered into a contract with Ashley County, under which it established a temporary plant in an old building on the fairgrounds of the town and entered into a lease with the county for a new plant building which was to be erected according to certain specifications The rental for the new plant building was fixed at a sum which would retire the bonds issued by the county at the end of 20 years. The bonds were secured by an increase in taxes on real estate in the county. 2 At that time 'Bernstein and Son Shirt Corporation operated a shirt factory at Crystal Springs, Mississippi, through a subsidiary, Crystal Springs Shirt Corporation. 3In deciding to establish a plant at Hamburg, Bernstein and Son Shirt Corporation contemplated the use of untrained labor available in the area. Since the Respondent would be required to pay employees a minimum wage which might be in excess of their actual production, the defrayal of training costs was contemplated to reimburse the Respondent for the difference between the amount earned by the trainees measured in terms of their production and the minimum wage which they were paid. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By May 11, 1964, the new building was ready for occupancy, and on that date Respondent moved its operations into the new building. Respondent, however, did not officially accept the new plant building, contending that there were defects in the building, viz, there was water dripping from the ceiling apparently caused by water trapped between the roof and the ceiling. Respondent did not officially accept the new building until approximately November 1, although Paul Bernstein, treasurer of Respondent, admitted that the defects had not been remedied, and water was still dripping from the ceiling. B. Sequence of events 1. The Union's organizing campaign and request for recognition The Union's organizing campaign began on May 28 when Arthur Hebner, a national representative of the Union, got in touch with Lula Taylor, an employee of Respondent. With the aid of employees Lois Williams and Joyce Pennington, Taylor got together a group of women who met with Hebner at a roadside park on Highway 82, approximately 3 miles south of Hamburg .4 At this meeting, Hebner distributed cards which read as follows: APPLICATION FOR MEMBERSHIP in the Amalgamated Clothing Workers of America 209V2 W. SECOND FRanklin 4-6750 LITTLE ROCK, ARK. I, the undersigned, hereby apply for membership in the Amalgamated Clothing Workers of America, and do hereby appoint and authorize the officers thereof, to represent and negotiate for me in all matters pertaining to wages, hours and other conditions of employment. Name (Please sign): --------------------------------------------- Address: ------------------------------------------------------- Telephone No.------------------------------ Date: -------------- Company: ----------------------------------------------------- Department - ------------------------ Operation: Sign: --------------------- Hebner read the card to those present and asked them to read the cards themselves. He-explained that the card could be used for several purposes: to get an election, to negotiate a contract, and as a card check. Thirteen of those present organized them- selves into the organizing committee, and on June 1 Hebner sent the following tele- gram to the Respondent: PLEASE BE ADVISED THAT THE FOLLOWING NAMED EMPLOYEES OF YOUR PLANT, HAMBURG SHIRT CORPORATION ARE ON AMALGAMATED CLOTHING WORKERS OF AMERICA ORGANIZING COMMITTEE: LEVETER BANKS, LULA TAYLOR, LOIS WILLIAMS, MERLENE SWAN, LELA HOLLAND, FRANCES HAGOOD, LINDA HUGHES, ELVIE LEE THORNHILL, CHRISTENE CARPENTER, JOYCE PENNINGTON, VERA FIAL, PEARL GOLDEN AND MAE DELL BELLOTT. The telegram was received on June 2 by Plant Manager Robert Grantham who that day informed Bernstein and Son Shirt Corporation in New York by telephone. The organizing committee proceeded forthwith to obtain signatures to the union cards, and by June 5 had signed up 92 out of the 123 rank-and-file employees of the Respondent." On that date, the Union wrote to the Respondent stating that it represented a majority of the production and maintenance employees, requested recog- nition and negotiation, and offered to submit "signed membership cards to an impartial person, of public standing in your community, for a check against your current payroll in order to prove our majority status." Plant Manager Grantham received this letter on June 8 and called Treasurer Paul Bernstein in New York and told him of the letter. He also told him that "numerous" girls had come to him and told him that they were confused. Bernstein admitted that Grantham had never mentioned the number I With very few exceptions, Respondent's production and maintenance employees are women. 5 Respondent contends that a great number of the employees who signed union cards were induced to do so by misrepresentations as to the effect of the cards and that there- fore the Union did not represent a majority of the employees The facts relating to this contention and ray-findings and conclusions thereon are set forth infra. HAMBURG SHIRT CORPORATION 515 of girls who had so complained to him.6 Grantham also admitted that he did not have any information which would lead him to recommend that the Union 's request for recognition be denied. Shortly after he received the Union 's request for recognition , Grantham received a petition for an election . He thereupon wrote letters to all of the employees , includ- ing those on the organizing committee , stating that he did not feel, under the circum- stances that he could voluntarily recognize the Union , but felt that the employees were entitled to a vote. 2. Plant Manager Grantham's speech On June 5, Plant Manager Grantham made a speech to the employees in which he told them that some of the employees had told him that they had to sign a union card or would be fired; that Arkansas permits an open shop and they need have no fear for their jobs ; that the Respondent would give them insurance which would not cost them a dime, while the only thing that the Union had to offer was a picket line ; that he did not want a union; that the red mark system had been discontinued and that Respondent was going to restudy the production quotas; that some of the production quotas were too high; and that the employees could go to the persons to whom they had given their union cards and demand them back.? The red mark system referred to by Plant Manager Grantham was a means of informing the employees whether they had reached their production quota for a 2-week pay period. In April, Respondent posted green slate boards on which it wrote the names of each of the employees and their payroll period production , indicat- ing what percentage of the quota each employee had produced. When an employee's production was too far below the quota for a payroll period, a red mark was placed opposite the employee's name. If an employee received three red marks, she would be discharged . The red mark system caused considerable dissatisfaction among Respondent's employees for two reasons : ( 1) The employees felt that the quotas were too high, and (2 ) it was rumored that female employees seen going out socially with Grantham in the evening had had their red marks removed. After Grantham's speech, Respondent stopped posting production percentages on the boards. Although Plant Manager Grantham admitted that in his speech of June 5 he had announced the discontinuance of the red mark system , he later sought to minimize the promissory effect of the announcement by testifying that he had told "several bunches of the girls" around May 21 or 22 that the red mark system was going to be discon- tinued "and in about 10 minutes it was all over the plant." I do not credit Grantham's testimony in this regard . Not only is it contradicted by employees Fox, Marcile Norrell, Williams, and Biggs, who testified that they heard no rumors before Grantham's speech, but none of the witnesses testified affirmatively that they had heard any rumors to that effect.8 Moreover, there is credible evidence in the record that the production boards with the red marks were still on the walls of the plant when Grantham made his speech. e Although Grantham testified that 14 or 15 girls told him that they were told they would be discharged if they did not sign a card , he was unable to state the names of such employees. Later, he identified one employee, Marcile Pilgrim , who told this to him. However, two employees, Ladd and Coody, testified that they had told Plant Manager Grantham that they would like to get their cards back. There is also testimony by Supervisor Margaret Riley that in addition to Ladd and Coody, six other employees told her that they had not signed for the purpose of joining the Union . However, there is no testimony that she ever communicated this information to either Plant Manager Grantham or Treasurer Bernstein. 'The credited testimony of Taylor , Merlene Swan , and Holland . Plant Manager Grant- ham admitted making the speech but said that all he had told the employees was that the red mark system had been discontinued and that they could go to the persons to whom they had given their union cards and demand that the cards be returned to them. I do not credit Plant Manager Grantham 's limited version of his speech . Grantham did not appear to be a straightforward witness and was evasive even on such unimportant matters as whether the supervisors wore white aprons. 8 While employee Streeter testified that she had heard rumors about the red marks' being done away with , she explained that what she had heard was "that some of the girls had been to the businessmen up town and talked that over and they had said they would see what could be done . . . This comports with other evidence in the record that a number of employees had gone to see various businessmen , asking them to intercede with the Respondent for the purpose of having the red mark system terminated. 217-919-66-vol. 156-34 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The meeting at the courthouse That evening the Union held a meeting at the Labor Temple in Crossett, Arkansas. At that meeting, three of the employees, Kilcrease, Ladd, and Cecil, told Organizer Hebner that they wanted their cards back. Hebner told them that cards had been sent to the Board, but that they could kill the effects of the card. The following morn- ing, Ladd and Kilcrease called on Chamber of Commerce President Carl Locke and ,discussed with him the possibility of getting back their union cards. It was decided to call a meeting of the community to be held at the courthouse the following Monday, June 8, and a notice to that effect was placed on Respondent's bulletin board. Locke then consulted Attorney William Arnold who suggested the preparation of a with- drawal card to be signed by employees who wanted their cards back. Locke had such withdrawal cards prepared in his office and gave them to Kilcrease. Locke acted as chairman of the meeting at the courthouse, which was attended by employees and businessmen. Among those present was Attorney Herman Hamilton who was later retained by the Respondent. Locke testified that he asked Plant Manager Grantham not to attend in order that the employees might be free to ask questions. Various people spoke at the meeting, both for and against the Union. Locke told the assembly that this was an improper time to organize the plant and that the businessmen were seeking to give the Respondent probably a year to establish itself undisturbed and uninterrupted. He also told them that there had been plants in Mississippi and Arkansas which had closed because of unions and that the business people had worked hard to get the Respondent to establish a plant in Hamburg .9 Locke suggested that the employees form their own grievance committee, and announced that withdrawal cards were available at the meeting. At the conclusion of the meeting approximately 15 employees came toward the front where the withdrawal cards were available.10 A few days after the meeting, Kilcrease brought the with- drawal cards to Carl Locke who kept them in his office. Locke testified that as far as be knew the cards might still be in his office. 4. The businessmen's antiunion campaign Between the inception of the organizing campaign and until the election on July 17, various businessmen of Hamburg conducted an antiunion campaign. Locke enlisted the services of his brother-in-law, Rev. Raymond Carpenter, minister of the Gardner Baptist Church, and assistant postmaster of Hamburg, to speak with members of his church. Reverend Carpenter admittedly did so. He visited approximately 10 of his parishioners who were employees of Respondent and asked them to vote against the Union. He told them among other things, "It had been told to me that there was a possibility that if a union was voted here that this plant would close, that the manage- ment had not yet accepted the delivery of the building ... a lot of these businessmen in this town invested quite a sum of money in that building down there and these people are my friends. It didn't make sense to me for something like that to take place and these men be left holding the bag." 11 On or about June 2, Earl Scott spoke to employee Taylor and told her that he and other businessmen had personal money in the plant and if the plant moved they would lose their money. He also told her that the production standards were going to be reconsidered and, if found to be too high, would be lowered and that the red marks would be done away with.12 Scott also talked to employee Bonds and told her that "the plant would have closed down the weekend after the first union meeting if he, and George Ed Locke, and Attorney Arnold hadn't gone to New York." 13 On or about July 14 or 15, Searcy Wilcoxon, Jr., another businessman, called at the home of employee Stell. Stell's husband was present and asked Wilcoxon why there_ were rumors that the plant would go down in 6 months if the Union came in, and Q The credited testimony of Leasure, Sparkman, Taylor, and Kilcrease, not contradicted by Locke. 10 The record does not indicate whether all of these persons actually signed withdrawal cards. The withdrawal cards were not introduced into evidence. Only three employees, Coody, Johnson, and Sparkman, testified that they signed withdrawal cards at the meet- ing. To these should be added the names of Ladd, Kilcrease, and Ciyda Faye Brown who testified that they instigated the meeting and/or that they distributed withdrawal cards at the plant. "Another businessman, Earl Scott, had asked Reverend Carpenter to preach against the Union in his church , but Reverend Carpenter refused to discuss the Union from the pulpit. 12The uncontradicted testimony of Taylor. Is The uncontradicted testimony of Bonds. HAMBURG SHIRT CORPORATION 517 Wilcoxon replied that it would go down in 6 months, that Bernstein had indicated a possibility of bankruptcy, and that the town would have an empty building to pay for with taxes. Wilcoxon told them also that he had visited nine other employees that evening.14 Employee Lena Maxie Carpenter testified that Wilcoxon called upon her twice. On July 13, he asked her how she felt about the Union, but Carpenter refused to give him any information. Wilcoxon then spoke "about the opportunities if the plant didn't close, the opportunities there would be in supervisors, and I told him I didn't want any part of it, and he asked me if I knew that if the Union went in that the plant would go down and the taxpayers here in Ashley County would have to pay for an empty building." On July 16, Wilcoxon called upon Carpenter again. In the conversation Carpenter asked, "Well, if the union came in just what would it hurt?" Wilcoxon did not answer. They also discussed the matter of production quotas. Carpenter told him that hers was too high, and Wilcoxon told her that he had talked to Paul Bern- stein who had said that some of them were going to be lowered. Indeed, Wilcoxon revealed a surprising amount of knowledge concerning Respond- ent's operations. Thus when he called on employee Bellott, he told her that the Respondent had to average 91 cents per hour production for each employee in order to be out of debt, and when Bellott told him that she was producing at the rate of 84 cents per hour, he said he knew she was one of the bottlenecks, but that if the girl furnishing her with material would improve, Bellott could raise her earnings to 91 cents per hour. Wilcoxon later told her that he got this information from Bernstein. Hudson Rodgers, a local businessman, asked employee Cotton what she thought about the Union. Cotton told him that she thought one was needed. Rodgers then quoted Bernstein as saying that "if the Union came in, he would close down, ... that he didn't have a union at any of his other buildings and he wasn't going to have one in that one." Cotton said that she had worked in places where the same thing had been said, but were still operating after the union came in. Rodgers then said, "Yes, but this fellow means business. As long as he has not signed the contract he has us over a barrel and there is nothing we can do about it." 15 Bruce Smith, a member of the chamber of commerce, called on employee Bardin at her home and asked for her cooperation by voting against the Union so that the town would not lose Respondent's plant. He said he was sure that Respondent would move, "that we didn't have any hold on them to keep them here if they wanted to leave." is 5. The alleged surveillance of June 23 On June 23, after working hours, the organizing committee of the Union held a meeting at the roadside park. During the meeting Plant Manager Grantham, riding in a pickup truck driven by Joe Curtis, mechanic at Respondent's plant, drove up slowly. The assembled employees waved at Grantham and he waved back at them. A few minutes later, the truck drove back toward Hamburg, again being driven slowly. Plant Manager Grantham, corroborated by Curtis, explanied that they were driving to the home of one Allen Hobbs who lived nearby; that Hobbs was in the business of repairing air-conditioners; and that Grantham wanted to discuss with him the repair of an air-conditioner in the trailer in which Grantham lived. Grant- ham explained further that Highway No. 82, on which the roadside park is situated, makes a right angle turn toward Crossett approximately 100 yards beyond the road- side park and that there is a stop sign at that point; that Highway No. 139 originates at that point where Highway 82 makes the right angle turn and proceeds southward from that point and that Hobbs lived a short distance beyond that point on Highway No. 139. In view of the stop sign approximately 100 yards beyond the roadside park, it was necessary for Curtis to slow down his vehicle when approaching the stop sign. Grantham explained further, corroborated by Curtis, that Hobbs was 14 The credited testimony of Stell. ' Rodgers admitted talking to employee Cotton, but all he recalled of the conversation was that he said it looked like a bad time to organize the plant and that the plant needed a little more time to get its feet on the ground. I credit Cotton's version of the conversa- tion. The statements attributed to Rodgers by Cotton are consistent with what Reverend Carpenter admittedly told his parishioners and with the statements attributed to other businessmen. 16 Smith admitted talking to Bardin, but testified that he told her only that he be- lieved that this was an inopportune time to organize the plant ; that when Bardin asked him whether he thought the plant would close if it went union, he answered that he did not know. For the reasons stated above, I credit Bardin's testimony. x518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not at home and they thereupon returned to Hamburg . In doing so they were again compelled to stop before entering on Highway No. 82. Having just stopped, the vehicle was not proceeding in a swift manner. I find Grantham 's explanation credible.17 6. The discharge of June 30 On June 30, Respondent discharged Carrie Leasure, Lula Taylor, and Betty J. Streeter. Counsel for the General Counsel contends that they were discriminatorily discharged . Respondent contends that they were discharged for cause . The facts surrounding these discharges and my conclusions thereon are discussed infra. 7. Bernstein's speeches and interviews with employees Treasurer Bernstein made three speeches to Respondent 's employees : on June 15 and July 8 and 16. The record does not disclose what Bernstein said in the first speech. In his speech of July 8, Bernstein assured the employees that no one was in danger of losing her job because of her loyalty to the Company . He pointed out that although some employees had recently been discharged , the rest of the employees were showing satisfactory progress and did not have to be worried about their jobs. He stated that "new supervisory jobs will be opening up if we grow and progress as we hope to do. Our need for qualified supervisors is increasing daily. In time we hope to be able to choose people to fill these jobs from your ranks." Commenting on the Union's campaign he said: Through its propaganda the Union has attempted to make you believe that the only way you will be able to get these things is through their forceful tactics of strikes and picket lines. This is not true , and I ask you for the opportunity of proving that it is not true . There is no doubt that union organization has many disadvantages for you. It can be very expensive , it calls for a surrender of individual rights, it destroys the warm and friendly relationship between employ- ees and management , it results in hard feelings, and on many occasions it has even lead to violence. In his July 16 speech, Bernstein again repeated that the rest of the employees were satisfactory and stated that there was no sense paying dues and fines to get benefits which the employees already have.18 At the conclusion of his speeches of July 8 and 16, Bernstein invited the employees to come to his office to ask any questions that might be bothering them, and that the supervisors had been instructed to relieve employees of their duties for this purpose. Pursuant to Bernstein's invitation , a number of employees went to the office in groups to ask various questions . Uppermost in the minds of the employees was the fear implanted by the businessmen that the plant would close if the Union came in. Thus, employees Rowe and Cotton, together , asked Bernstein what business it was of the businessmen to interfere with the employees' desire for a union. Bernstein replied that if you built a fence around something you would not want somebody to tear it down.19 17 By way of further clarification : Highways Nos. 82 and 139 form a T, approximately 100 yards south of the roadside park , with the east-west leg of Highway No . 82 being the stem and the north-side leg forming the left arm of the T and Highway No. 139 forming the right arm of the T. I have observed the area described above and find that there is a stop sign at the point where Highway 82 turns right toward Crossett , so that all traffic whether turning right toward Crossett or proceeding across the intersection onto Highway No. 139 is required to stop. Consequently , a vehicle proceeding southward on Highway No. 82 would nor- mally be required to decrease its speed about the point where the roadside park is located. Similarly , traffic proceeding northward on Highway No. 139 and going toward Hamburg would be required to stop before entering Highway No . 82 and would not normally be proceeding at a great rate of speed when it passed the roadside park. "The credited testimony of Dodd , Merlene Swan , Cotton , and Biggs . Bernstein did .a^.s^ a F, 4 no „ofo;„ not give his version of that speech. Only one employee , Hopki!' - affirmatively stated that the plant would not close . I do not not even Bernstein testified that he so stated in a speech. ° The credited testimony of Cotton and Rowe. Rowe att Bernstein , while Cotton attributed it to Plant Manager Granthn Rowe impressed me as a thoroughly honest and impartial wii HAMBURG SHIRT CORPORATION 519 Another group consisting, inter alios, of Thornhill, Biggs, Denton, and Hobbs also spoke with Bernstein in Plant Manager Grantham's office. According to the credited testimony of Thornhill and Biggs, Thornhill asked Bernstein if he thought it fair of the businessmen to say that the plant would close if the Union came in. Bernstein said that he did not think it was something that he could approve or disapprove of. Biggs then said that the businessmen were using Bernstein's name in saying that the plant would close and that "it seems to me that you would have something to say about it." Bernstein did not answer, but changed the subject.20 In the interview, Thornhill told Bernstein that her husband was on the bargaining committee of his local and that they always got benefits from the company for whom he worked whenever they signed a contract. Bernstein said, "Well, that may be true, but I don't have to give you anything at all and the Union can't make me." Thorn- hill replied, "Well, Mr Bernstein, the law says you have to bargain with us." Bernstein said, "Well, I will explain to you what bargaining is. The only thing there is to it is that we would sit there and the union man would say yes and I would say no, and he would say yes and I would say no and he would say yes and I would say no, and then if we couldn't agree, the Union would call a strike." 21 Bernstein admitted that he had a conversation with Thornhill about bargaining, but his version of the incident is somewhat different. According to Bernstein, he said, "Suppose a man from the Union comes in and says he wants a $1.75 minimum wage. So, I say to myself, "Well, let's see, I'm paying $1.25 now and in many areas getting about 50 cents worth of work. So, I really can't see paying $1.75 for that same 50 cents worth of work.' So, the union man says, `Well, we want a $1.75.' So, I say, `no,' and he says, `yes,' and I say, 'no,' and he says, 'yes' Now, there is nothing in the world that he can do about that, because I can't afford to, and I'm not going to pay that. The only thing he can do then, really, , is strike." As between the two versions, I credit the version of Thornhill and Biggs. It is significant that Plant Manager Grantham who, Biggs testified, was present at the meeting,22 was not asked to corroborate Bernstein's version A group of employees, including Bonds, also went into Plant Manager Grantham's office to speak with Bernstein. Bonds admittedly asked Bernstein why the business- men were telling the employees that the plant would close if the Union came in. Bernstein answered that "the business people were using a selfish motive and that they were afraid of losing the payroll that Hamburg had." Bonds then asked specifically whether the plant would close and Bernstein admittedly answered, "Do you think with a nice building that we have here and with the opportunity that we have, do you think that it would close down or move?" Later in the interview 2O Denton and Hobbs also testified concerning Thornhill's inquiry, but stated that Bern- stein answered it in the negative. Bernstein also testified that he answered Thornhill's question in the negative. While the evidence is conflicting, I was impressed with the credibility of Thornhill and Biggs and with their fuller account of what had transpired On the other hand, Denton's testimony was vague. When asked whether she recalled Thornhill's asking Bernstein whether the plant would close if the Union came in, answered, "Yes, I do. I believe so. I am not sure" Yet when asked what his answer was, she said, "But he said definitely none of us would be fired or discharged or the plant would not close due to union activity." Hobbs' testimony is also opened to question. She testified that every time Plant Manager Grantham made a talk he stated that the plant would not close on account of the Union. She was the only one who testified to any such statements by Grantham, and not even Grantham testified that he made such state- ments in his speeches to the employees. Nor do I credit Bernstein's statement that he told Thornhill and Biggs that the plant would not close. Bernstein sought to give the impression that he found objectionable the rumors of the plant's closing, testifying that such rumors "would be very detrimental" to Respondent's business because "our cus- tomers would lose a certain confidence in placing any sort of an order at all in advance . . . they would not want to be put in a position where a few months later they weren't going to get shirts." Later, however, he admitted that the orders are placed with Bernstein and Son Shirt Corporation which designates whether the order is to be filled by the Respondent, or by Crystal Springs Shirt Corporation, or by an outside contractor. There is also evidence that orders are filled jointly by Respondent and the Crystal Springs plant Thus, sleeves cut by the Crystal Springs plant are sometimes shipped to Re- spondent to be sewn into shirts finished by the latter. 21 The credited testimony of Biggs corroborated by Thornhill. ra Other employees who interviewed Bernstein in the office following his speeches also testified that Grantham was present during the interviews. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bernstein said that he could not close the plant because the Government would not let hint. Bonds also quoted Bernstein as saying, "If you'll notice the backside of this building, it is built for expansion. There are expansion plans and if the Union comes in, no one will ever know about the expansion plans or other plans." 23 Another subject of inquiry at these conferences was the matter of vacations. According to Bardin and Bonds, they asked Bernstein about vacations. Bernstein replied that he could not promise them anything but that he was working on it. According to Bernstein, he told them that the matter of vacations would have to be subject to review at a later date. 8. The Ashley County Leader The Ashley County Leader is a weekly newspaper published in Hamburg . Publisher F. H. Reamey testified that although Thursday is the normal publishing date for the newspaper, the edition dated Thursday, July 16, was actually published and issued on Wednesday, the day before . Reamey testified that one reason for publishing the paper a day earlier was so that it would have an impact on the forthcoming election. On the front page at the center top appeared an editorial entitled "THINK . . BEFORE YOU VOTE ON FRIDAY" and the editorial concluded as follows: Therefore, we make this plea to the employees of the Hamburg Shirt Corpora- tion-KEEP HAMBURG SHIRT CORPORATION IN ASHLEY COUNTY AND FOR ASHLEY COUNTY-VOTE "NO" ON FRIDAY, JULY 17. On page 8 of the newspaper appeared a full-page advertisement. The top half of the page was a cartoon showing a hand (labeled "Amalgamated ") holding an ax (labeled "Union") poised as though to strike a goose ( labeled "Hamburg Shirt Corp."). The goose is pictured sitting on a nest containing an egg (labeled "Ham- burg"). Below the cartoon across the page in boldface letters almost 1 inch in height appeared the following: DON'T KILL THE GOOSE THAT LAID THE GOLDEN EGG Below that appeared the following legend: On Friday, July 17, 1964, the employees of Hamburg Shirt Corp. will vote in a National Labor Relations Board election to determine whether the plant will be unionized by the Amalgamated Clothing Workers. This kind of election is the right of every workman because it gives every worker the opportunity to protect his own personal interest. However, it is unfair to Hamburg Shirt Corp. or any other industry to force such an election until the plant has had time to settle down to normal operation. The result of this election will be far-reaching. Not only will it decide whether Hamburg Shirt Corp. employees become members of the Amalgamated Clothing Workers Union, but it will decide this community's industrial future. New industries are not interested in moving into a community where they will face labor difficulties before they can get their plant into operation. We ask all of Hamburg Shirt Corp. employees to consider this matter seriously. We ask you-"DON'T KILL THE GOOSE THAT LAID THE GOLDEN EGG!" Help us to provide a more favorable climate to attract more industry with more job opportunities and more job security. Let's not lose this industry. The advertisement concluded with: VOTE NO AT THE ELECTION NEXT FRIDAY Reamy testified further that the advertisement was placed by A. P. McCombs, Jr., a local insurance agent, who supplied the cartoon and all of the material for the advertisement. 24 Reamey printed 100 extra copies of the paper and tied the extra copies in a bundle. They were picked up by an unidentified person and brought to the plant where they were placed in a box on one of the picnic tables used by the employees to eat their 21 The credited testimony of Bonds. Employee Bardin who was present at the inter- view with Bonds recalled very little of the interview Upon having her recollection refreshed, she did recall telling Bernstein that Bruce Smith had told her that the plant might close if the Union came in and that Bernstein replied that this was not true. 24 The advertisement did not indicate by whom it had been placed. HAMBURG SHIRT CORPORATION 521 lunch. The picnic tables are just outside of the plant on plant property A sign placed with the newspapers read "Free-take one." Copies of the newspaper were also placed inside the plant with a similar sign 23 9. The alleged surveillance of July 16 On the evening of July 16, the organizing committee held a meeting in the private dining room at Kent's Motel Restaurant in Hamburg. The amended complaint alleged that Plant Manager Grantham and his wife surveyed the meeting by request- mg a restaurant employee to inform them what employees had attended that meeting. The record shows that Grantham and his wife were having dinner in the restaurant during the dinner hour, but there is no evidence that either he or his wife asked any restaurant employee to tell them who was attending the meeting in the private dining room. Kent's Motel Restaurant, at that time, was the only restaurant in Hamburg.2e 10. The election As previously noted, pursuant to a stipulation for certification upon consent election, an election by secret ballot was held on July 17. The report of the election showed that there were 116 eligible voters and that 118 ballots were cast, of which 43 were for the Union, 67 were against the Union, 8 were challenged, and 1 was void. 11. The open house On August 20, Respondent held an open house in the new plant building. At the request of Bernstein, the chamber of commerce sent invitations to its members. Also at the request of Bernstein, Carl Locke acted as master of ceremonies. In his presen- tation, Locke told the assemblage how the chamber of commerce had secured the new industry. He pointed out that "if there had not been any trouble here at this plant, there wouldn't be room for the chairs that you are sitting in." He continued, "We had planned to expand and the back wall was left unfinished so that another building with the same size could be built on and ultimately would employ about 350 people." 27 Bernstein was present during Locke's speech. He was later intro- duced by Locke and said a few words of welcome. 12. The discharge of Biggs, Cotton, and Jackson On August 28 Respondent discharged employees Biggs, Cotton, and Jackson. The facts relating to their discharges and my findings and conclusions thereon are set forth infra. 13. The layoff of Williams On September 21 Williams was laid off and at the time of the hearing had not been recalled. The facts relating to her layoff and my findings and conclusions thereon are set forth infra. 14. The pretrial interviews About 2 weeks before the start of the hearing of the instant proceeding, Attorney William H. Sutton interviewed a number of the employees at the Respondent's office. Counsel for the General Counsel contends that these interviews constituted coercive interrogation in violation of Section 8 (a)( I) of the Act. Respondent contends that it was proper preparation for trial. The facts involved in this phase of the case and my findings and conclusions thereon are discussed infra. 21 The credited testimony of employees Hughes, Bonds, and Biggs. Plant Manager Grantham admitted seeing the papers on the picnic tables, but denied that there were any inside the plant. I do not credit Grantham's denial. 26 There is testimony in the record that such a request was made by Hillman Stevens Nesbitt, a cousin of Mrs. Grantham. However, Nesbitt's action was not alleged in the complaint, and when counsel for the General Counsel at the conclusion of his case sought to amend his complaint further to allege Nesbitt's action in this regard, I denied the motion because of lack of notice to the Respondent and because of Nesbitt's unavailability to testify. 'Accordingly, the issue was not fully litigated. Cf. Singer Sewing Machine Company, 150 NLRB 1319; Valley Transit Company, Inc, 142 NLRB 658, 660. n The uncontradicted testimony of Biggs, corroborated by Thornhill and Holland. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Concluding findings 1. As to interference, restraint, and coercion a. Promises of benefits Plant Manager Grantham's speech of June 5, contained three promises of benefits, one of which was effectuated immediately. He announced that Respondent would restudy production quotas, conceding that some were too high. He announced the removal of the red mark system, and he promised free insurance.28 These promises were made in the context of antiunion statements, viz, that he did not want a union and that the only thing the Union had to offer was a picket line. Grantham's state- ments made shortly after he became aware of the Union's organizing campaign were clearly calculated to interfere with the employees' right to organize and were violative of Section 8(a) (1) of the Act, and I so find. In his speech of July 8, Bernstein urged to the employees to vote against the Union and said that "new supervisory jobs will be opening up if we grow and progress as we hope to do Our need for qualified supervisors is increasing daily. In time we hope to be able to choose people to fill these'jobs from your ranks " Considering the context in which it was made, in view of the timing of the speech, and particularly when considered in the light of Grantham's earlier promises, this statement consti- tuted a definite promise of benefit. Though it was obviously limited in application, in the sense that not all of the rank-and-file employees could hope to become super- visors, it held out the hope to all of them that they could rely upon Respondent's gen- erosity to their benefit. Moreover, as previously noted, Bernstein coupled this prom- ise with the threat to employee Bonds that "if the Union comes in, no one will ever know about the expansion plans or other plans." In this connection, it is interesting to note that Locke's speech on August 20, at Respondent's open house, made in the presence of Bernstein and not disavowed by him, also gave substance to Bernstein's promise. Locke pointed out that "if there had not been any trouble here at this plant, there wouldn't be room for the chairs that you are sitting in We had planned to expand and the back wall was left unfinished so that another building with the same size could be built on and ultimately would employ about 350 people " Had the plant expanded, there would obviously be need for additional supeivisors, and it is reasonable to expect, as Bernstein admittedly had promised, that experienced rank-and-file employees would have been selected as supervisors. More important, Bernstein's failure to disavow Locke's statement was an independent violation of Section 8 (a) (1) of the Act. For Locke was making clear to the assembled employees that it was the advent of the Union which had prevented the contemplated expansion and that therefore continued support of the Union would redound to their detriment.28 Accordingly, I find and conclude that Bernstein's promise of plant expansion and the attendant increase of supervisory jobs, his threat that there would be no expan- sion if the Union came in, and his failure to disavow Locke's statement, constituted restraint, coercion, and interference in violation of Section 8(a) (1) of the Act. b. Threats to close the plant The complaint charges that Bernstein and Plant Manager Grantham threatened that the plant would close or move if the Union was successful in its organizing cam- paign. The record does not support the allegation that either Bernstein or Grantham, personally, made such threats. The complaint further charges that certain named businessmen also threatened the employees that the plant would close or move in the event the Union was successful in its organizing campaign, and that the Respondent , instigated, acquiesced in, and ratified the conduct of the businessmen. The evidence detailed above clearly demonstrates that Rev. Raymond Carpenter, Earl Scott, Searcy Wilcoxon, Jr., Hudson Rodgers, and Bruce Smith made it clear to various employees that Respondent's plant would close or move if the Union came in. There is no evidence that Respondent requested these men to make such threats. It is apparent that they did so of their own volition because the Respondent had not 2' The promise of free insurance was a deviation from Respondent's previously an- nounced policy under which employees were entitled to Blue Cross Hospital Insurance after completing 90 days' employment with the Company, with the Respondent paying one-half of the premium. 29 Even if their plant expansion did not result in promotion for the rank -and-file em- ployees, such expansion, in itself, would redound to their benefit in the sense that it would give them greater job security because of seniority over future hired employees. HAMBURG SHIRT CORPORATION 523 accepted the plant under its contract with Ashley County, and they feared that the Respondent would not accept the plant if the Union came in and they would have to pay taxes to retire the bond issue which had been floated to build the plant. Nevertheless, even though these businessmen had not been formally authorized to act for the Respondent, their statements and conduct may be properly attributed to the Respondent. As the Supreme Court observed in International Association of Machinists, Tool and Die Makers Lodge No. 35 (Serrick Corp.) v. N.L.R.B., 311 U S. 72, 80: The employer ... may be held to have ... [violated the Act] even though the acts of the so-called agents were not expressly authorized or might not be attrib- utable to him on strict application of the rules of respondeat superior. We are dealing here not with private rights ... nor with technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domination, or influence. See also N.L.R.B v. Arkansas-Louisiana Gas Co., 333 F. 2d 790, 795-796 (C.A. 8). It is plain that the employees had reason to believe that the businessmen were speaking for the Respondent The efforts of the businessmen to bring Respondent's plant to Hamburg were well known to the employees Also, some businessmen, Locke, Scott, and Bozeman, had assisted women in securing employment with Respondent 30 Locke, his son George, and Wilcoxori were seen by employees in Respondent's office at the plant. More importantly, when the employees felt they had a grievance, they went to see Locke and Scott who successfully intervened with the Respondent. Thus, Jackie Grantham, the plant manager's wife, was relieved of her supervisory duties after a complaint had been made to Scott that she had cursed employee Clyda Faye Brown; also, the employees were given a half day off before Christmas 1963 after Clyda Faye Brown had asked Locke and Scott to inter- cede with Respondent for that purpose.31 Respondent did not completely disavow the threats uttered by the businessmen when the employees called them to Respondent's attention Thus, in his interviews with Cotton, Rowe, Thornhill, and Biggs, Bernstein had the opportunity to disavow the threats and thus set the minds of the employees at rest. However, as I have found above, Bernstein avoided giving a direct answer. The activities of the businessmen and Respondent's action in regard thereto bear a striking resemblance to those involved in The Colson Corporation v. N.L.R.B., 347 F. 2d 128, 136-137 (C.A. 8), enfg. 148 NLRB 827.32 In that case the court said that "[t]here is no question but that the activities of the local businessmen were coercive." Regarding Respondent's purported repudiation of the businessmen's activities, the court noted that Respondent had posted a notice on its bulletin board as follows: We have heard that some local businessmen have spoken with some of our employees concerning the organization of this plant by a union. The Company wishes it known that this was done on the businessmen's own initiative and that they were not authorized by the Company to speak on behalf of The Colson Corporation.33 Upholding the Board's finding that this notice was inadequate to erase the impression in the employees' minds of the connection between the employer and the business- men, the court said (347 F. 2d 128, 137): The record shows that the businessmen acted in Colson's interests. It is obvious from the statements made to the employees by the businessmen that the latter feared increased costs to Colson might foice the company to leave town. Colson was aware of the activities of these citizens but made no effort to inform the employees that the businessmen were not acting for the company until Jan- "'Locke testified that he was merely using his good offices in doing so . I credit his testimony, but the fact remains that he did assist them in this regard and his conduct led them to believe that he was close to the Respondent. i1 The credited testimony of Clyda Faye Brown, an antiunion employee. ii The one point of difference, viz, that some of the businessmen in that case had had a'prior connection with a subsidiary of the employer organized for the purpose of estab- lishing the plant, is not significant, as in the instant case the Respondent was asked specifically whether the businessmen's statements about plant closing were true and by failing to disavow them, had ratified them. 3In contrast to the instant case, the employer posted this notice without waiting to be asked whether the businessmen were speaking for the company. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uary 28th. Dunagan was a frequent visitor at the plant even after the 30th of November. The businessmen, through the use of CIDC [Caruthersville Indus- trial Development Corporation], were instrumental in locating Colson in Ca- ruthersville. . . The January 28th notice was asserted to have been an effective revocation of any authority the businessmen might have had. The Board found that the notice was inadequate under the circumstances to erase the impression in the employees' minds of the connection between Colson and the businessmen. The notice did not repudiate the previous unlawful conduct nor did it state that such conduct was against company policy. The notice was not posted until approximately three weeks after the coercive conduct of the businessmen ... . The foregoing is peculiarly applicable to the instant case. That Bernstein was well aware of the activities of the businessmen is evidenced by the fact that he showed no astonishment when the employees asked him about the statements of the business- men; rather, he attempted to explain the statements in relation to the interest of the businessmen in keeping the plant in Hamburg In sum, by his failure to repudiate the acts of the businessmen. Bernstein confiimed the employees' belief that the business- men were speaking for him and thereby ratified their action.34 The same is true regarding the editorial and the full-page advertisement in the Ashley County Leader. A distinction may be drawn between the editorial and the full-page advertisement. The editorial represented the opinion of the publisher of the newspaper, whereas, for ought the employees, knew, the advertisement, which clearly threatened the close of the plant because of the Union, might have been placed in the paper by the Respondent. Regardless of the distinction, however, the fact is a large supply of newspapers were placed on the Respondent's premises, both outside and inside of the plant , with a sign saying "Free-take one." In these circum- stances it was reasonable for the employees to believe that the sentiments expressed in the newspaper were those of the Respondent Respondent could have disabused the employees of this belief, but it said nothing and by its silence affirmed and adopted these statements and thereby ratified them. In view of the foregoing, I find and conclude that Respondent by its conduct rati- fied the various threats that the plant would close if the Union were successful, in violation of Section 8(a) (1) of the Act. c. Interrogation As previously noted, about 2 weeks before the start of the hearing of the instant proceeding, a number of Respondent's employees were called into Respondent's office individually 35 and interviewed by Attorney Sutton. The interviews were conducted on the basis of a uniform questionnaire which read as follows Name 1. Have you ever signed a union card for Amalgamated Clothing Workers of America's ANSWER: 2. When you signed the card were you told that the card was not a vote for the Union? ANSWER: "In support of its contention that it is not responsible for the activities and state- ments of the businessmen, Respondent relies on: Electra Manufacturing Company, 148 NLRB 494, Morehead City Garment Company, Inc., 94 NLRB 245; N L.R.B v. Armco Drainage & Metal Products, Inc., Fabricating Division, 220 F. 2d 573 ( C.A 8) ; and-- Livingston Shirt Corporation, at al., 107 NLRB 400 These cases are clearly distinguish- able. In none of them was the employer asked point -blank by the employees whether the statements of the businessmen were true . Consequently, they do not present a factual situation in which the employer was specifically called upon to repudiate the statements, and by failing to do so could be deemed to have ratified them. To the contrary, in Armco "[t]he general manager of respondent . . . prior to this alleged statement, had clearly stated to the employees , in answer to a question on this very point, and, apparently, to clear up unfounded rumors, that the Company would not close its plant if the union won" (220 F. 2d at p. 581 ). Similarly, in Electra the local newspaper carried two an- nouncements by the employer that the plant would remain , and the union reprinted these articles in a leaflet which it issued. as Except employee Caine who was interviewed at the same time as employee Donna Woods. HAMBURG SHIRT CORPORATION 525 3. Were you told that the card did not obligate you to join the union? ANSWER: 4. Were you told that the card was merely for the purpose of getting a chance to vote on the union9 ANSWER: 5. Who presented the card to you? ANSWER: 6. When did you sign the card? ANSWER- 7 After signing the card did you later wish to withdraw from the union after finding out what the card was? ANSWER- 8. Did anything that any supervisor for the company did or said have any- thing to do with your withdrawal from the union? ANSWER: 9. Did anything that any townspeople did or said have anything to do with your withdrawal from the union? ANSWER: 10. Were you contacted by any townspeople about the Union? ANSWER: 11. Did any such person represent to you that he was acting for the company? ANSWER: 12. Were you ever interrogated about your feeling about the Union by any supervisor? ANSWER: 13. Were you ever threatened with discharge or disciplinary action by any supervisor because of the Union? ANSWER: 14. Has any supervisor, or Mr. Bernstein ever threatened to close the plant or take any other action if the Union was voted in in your presence. ANSWER: 15. Have any benefits been promised to you during the Union campaign? ANSWER: 16. When you voted at the election on July 17, 1964, did you feel that you were voting your own conviction without interference from any source? ANSWER: 17. Did you feel that any action would be taken by the Company that would affect you in any way if you voted for the Union? ANSWER: Attorney Sutton read the questions to the employees and recorded their answers on the questionnaires. When an employee complained that she did not understand a question, Attorney Sutton merely repeated the question.36 At the end, the employee was asked to sign the questionnaire. Three refused to do so. The complaint as amended charges that the foregoing interrogation was violative of Section 8(a)(1) of the Act. Respondent defends on the ground that the interviews were necessary in order to prepare for the hearing. The Board and the courts have held that, despite the inherent danger of coercion, where an employer has a legitimate interest to inquire, he may exercise the privilege of interrogating employees on matters involving their Section 7 rights without incur- ring Section 8 (a) (1) liability, and that one of the purposes found to be legitimate is the investigation of facts concerning issues raised in a complaint where such inter- rogation is necessary in preparing the employer's defense or trial of the case. The Court of Appeals for the Fifth Circuit has pointed out that "it is a matter of drawing a balance between the separable rights of the employer and the employees, delicate in all events, and one that requires the utmost in care and good faith on the part of company counsel.... The line between proper preparation of a defense in a proceeding of this type and conduct prohibited by the Act is fine indeed." (N.L.R.B. v. Guild Industries Manufacturing and Paul A. Saad, 321 F. 2d 108, 113, 114.) The leading case on this subject is Joy Silk Mills, Inc. v. N.L.R B., 185 F. 2d 732, 743 (C.A.D.C.) enfg. as modified 85 NLRB 1263 cert. denied 341 U.S. 914. In that case the court held: The Board has held that "an employer is privileged to interview employees for the purpose of discovering facts within the limits of the issues raised by a One employee complained to him that some of the questions could not be answered with a "Yes" or a "No." 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint, where the employer, or its counsel, does so for the purpose of pre- paring its case for trial and does not go beyond the necessities of such prepara- tion to pry into matters of union membership, to discuss the nature or extent of union activity, to dissuade employees from joining or remaining members of a union, or otherwise to interfere with the statutory right to self-organization." May Department Stores Co., 70 NLRB 94, 95. Apparently this rule means that an employer may question his employees in preparation for a hearing but is restricted to questions relevant to the charges of unfair labor practice and of sufficient probative value to justify the risk of intimi- dation which interrogation as to union matters necessarily entails; and that even such questions may not be asked where there is purposeful intimidation of employees. Such a standard assumes that interrogation of employees concerning their union activities is, of itself, coercive, but that fairness to the employer requires that a limited amount of such questioning be permitted despite the possible restraint which may result. We think that the standard established by the Board, as just described, is a reasonable one, and aptly designed to carry out the purpose of the Act. More recently the Board has restated the specific guidelines as follows: In allowing an employer the privilege of ascertaining the necessary facts from employees in these given circumstances, the Board and courts have established specific safeguards designed to minimize the coercive impact of such employer interrogation. Thus, the employer must communicate to the employee the pur- pose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature ; and the questions must not exceed the necessities of the legitimate pur- pose by prying into other union matters, eliciting information concerning an employee's subjective state of mind, or otherwise interfering with the statutory rights of employees. When an employer transgresses the boundaries of these safeguards, he loses the benefits of the privilege. (Johnny's Poultry Co., 146 NLRB 770, 775.) 87 An analysis of the testimony concerning the interviews reveals that all of the necessary safeguards were not observed. Thirty-two witnesses testified that they had been interviewed. Six testified merely that they had been interviewed, but did not testify regarding the manner of the inter- view. As to the purpose of the interview, 13 testified that they were told what the purpose of the interview was, while only 3 testified that they were not told or did not remember being told. In view of the overwhelming preponderance on this phase of the issue, I am satisfied that Attorney Sutton did apprise the employees of the purpose of the interview, and I so find. As to whether the employees interviewed participated on a voluntary basis, 13 testified that they were not told that they had to answer the questions, and 6 that they did not remember being so told, while only 6 testified affirmatively that they received such assurance. As to whether Attorney Sutton assured them that the Respondent would take no reprisals again them if they failed to cooperate with him, 13 witnesses testified that they did not receive such assurance, and 7 did not remember Attorney Sutton's giving them any such assurance, while only 3 testified that they were so assured. In view of all the foregoing, I find that Respondent did not provide all of the necessary safeguards when many of the employees were interviewed. Valley Gold Dairies, Inc., et al., 152 NLRB 1470. Some of the questions went beyond the scope of the permissible area of interroga- tion . Questions Nos. 7, 8, 9, 16, and 17 were inquiries into the employee's subjective state of mind. Questions such as these were held to be violative of the Act in Joy Silk Mills, supra. The court there pointed out (185 F. 2d at 743-744): The questions which have here been held violative of the Act, while perhaps relevant to the charges made against the employer, would yield little in the way of proof as to whether or not unfair labor practices had been committed. This is especially true of those which deal with the employee's subjective state of mind, such as questions 7, 8, 14, 21, and 25. See N.L.R.B. v. Donnelly Garment Co., 330 U.S. 219, 230-231, 67 S. Ct. 756, 91 L. Ed. 854. It has been held that an 37 The Court of Appeals for the Eighth Circuit recently denied enforcement of the Board's decision in Johnn4e's Poultry Co., 146 NLRB 770. However, it should be noted that the court did not disagree with the standards set forth above, but denied enforce- ment on the ground that "the Board's determination on this issue is not supported by substantial evidence." N.L.R.B. v. Johnn4e's Poultry Co., and John Bishop Poultry Co., 344 F. 2d 617 (C.A. 8). HAMBURG SHIRT CORPORATION 527 employee's thoughts (or after-thoughts) as to why he signed a union card, and what he thought that card meant, cannot negative the overt action of having signed a card designating a union as bargaining agent. N.L.R.B. v. Sunshine Mining Co., 9 Cir., 110 F. 2d 780, 790; N.L.R.B. v. Consolidated Machine Tool Corp., 67 N.L.R.B. 737, 739, enforced 163 F. 2d 376, certiorari denied 332 U.S. 824, 68 S. Ct. 164, 92 L. Ed. 399. Similarly it has been consistently held that the question is not whether an employee actually felt intimidated but whether the employer engaged in conduct which may reasonably be said to tend to interfere with the free exercise of employee rights under the Act. N.L.R B. v. Link-Belt Co., 311 U S. 584, 588, 61 S. Ct. 358, 85 L. Ed. 368; N.L.R.B. v. Ford, 6 Cir., 170 F. 2d 735, 738. We think the Board was justified in its conclusion that ques- tions 7 through 14, 21, and 25 were violative of section 8(a)(1), in that the evidence which could be garnered from that questioning would be of so little probative value as not to warrant the risk of infringing upon employee rights. The foregoing language can be applied with equal force to the questions which I have designated above, which inquired into the employee' s state of mind and the answers to which would have no probative value at the hearing. I am therefore constrained to find and conclude that in asking questions Nos. 7, 8, 9, 16, and 17, Respondent's attorney exceeded the permissible limits of a pretrial interview and thereby violated Section 8(a) (1) of the Act. I also find objectionable question No. 5: "Who presented the card to you?" This question would have relevance to the issues only if the employee answered question No. 4 in the affirmative. Otherwise, it was an inquiry into the union activity of another employee, which is clearly prohibited. I have been considerably troubled by the fact that three of the questions which were relevant to the issues in the hearing, viz, Nos. 2, 3, and 4, were leading and suggestive. Such questions could reasonably: ( 1) suggest to the employee the answer that the employer wants him to give; and/or (2) suggest that the facts stated in the question may have occurred and thereby tend to condition his mind when he testifies at the hearing. While the use of such leading and suggestive question might be considered astute investigative practice where private litigation is involved, it must be remembered that the proceedings before the Board affect the public interest, and, as the Board and the courts have held, the employer is limited in the procedures he may follow in pretrial interviews. In most private litigation, neither party is in a position to exert direct and powerful pressures on potential witnesses for the other party. However, in Board proceedings such as this one, the employer has the power to discharge, withhold promotion, or otherwise penalize potential or actual witnesses for the General Counsel, and employers have discharged employees both for filing charges and for giving testimony. Employee knowledge that such power exists and can be exercised is unavoidable. Consequently, the employee whose livelihood may depend on his pleasing his employer may be more amenable to the suggestions of his employ- er's counsel than an independent witness in private litigation would be. Thus the use of such questions interferes with the employee's rights guaranteed by Section 7 of the Act in that by their suggestive nature, they may affect the testimony which the employee will give if called as a witness at the hearing and thereby "has a tendency to deprive employees of vindication by the Board of their statutory rights." (Winn-Dixie Stores, Inc., and Winn-Dixie Greenville, Inc., 128 NLRB 574, 579.) Cf Alterman Transport Lines, Inc., 127 NLRB 803, 804; Sunshine Art Studios, Inc., 152 NLRB 565. Moreover, the use of these questions suggests that the purpose of the interrogation was not preparation for trial in the sense that Respondent was trying to find out what various employees knew of, and might testify as to, the matters in issue. For, if Respondent were genuinely interested in determining the circumstances under which each card was signed, such information could have been secured by the use of questions which did not suggest the answer that Respondent desired, such as: "What, if anything, were you told when you were asked to sign?" Or, "What, if any- thing, were you told as to what the purpose of the card was9" Instead, the interroga- tion appears to have been a conscious attempt to compromise witnesses who might be called by the General Counsel, by laying the basis for a future impeachment through the use of cleverly contrived leading questions. In these questions, the choice of language was that of Respondent's attorney, and it is clear from the record that a substantial number of the employees interviewed did not fully comprehend the pre- cise thrust of the questions . Thus, many of the employees testified that they were either unaware of the word "merely" in question No. 4, or did not understand its 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD significance. And it is perhaps significant that the employees were not given the questionnaire to read, but were asked the questions orally, for in reading a question a person can concentrate more readily on each word, whereas when the question is put orally this is not feasible. So far as I can determine the question whether the use of leading and suggestive questions in a pretrial interview violates Section 8(a)(1) of the Act is one of first impression. And I recognize that it may be difficult to police pretrial interviews to determine whether attempts to influence the testimony of employees were made. Indeed, it is conceivable that there may be other methods to influence an employee's statement given in a pretrial interview. But this should not deter us from holding violative of the Act a pretrial interview where it is plain that leading and suggestive questions were used . For the reasons discussed above, I am compelled to find and conclude that by the use of questions Nos. 2, 3, and 4, Respondent violated Section 8(a)(1) of the Act. d. Surveillance The allegation of Respondent's surveillance of the union meeting at the roadside park on June 23, is not supported by evidence and should be dismissed. Plant Manager Grantham's conduct in riding by the meeting place was for a legitimate purpose and not for the purpose of surveillance. Similarly, his presence at the Kent Motel Restaurant when a union meeting was being held in the private dining room was not shown to be for the purpose of surveillance . I am satisfied that Grantham and his wife were in the restaurant for the purpose of having dinner there. Accordingly, the complaint should be dismissed as to this allegation also. 2. As to the discharges of Taylor, Streeter, and Leasure a. Lula Taylor Taylor was employed by the Respondent on February 22, 1963, and worked as a feller until her discharge on June 30, 1964. She was discharged without warning on Tuesday, although the pay period ended on Friday, July 4. Taylor was one of the most active union proponents. During the weekend follow- ing the first union meeting she telephoned between 25 and 40 employees to explain the benefits of having a union. Respondent was aware of her union membership and activity. On June 1 she signed up eight employees before work started, while Supervisor Curtis was watching. She was a member of the organizing committee and as such signed the telegram of June 1. Taylor was consistently the highest producer among the fellers, except for the last pay period when her production was exceeded slightly by Hughes (Meeks). Thus, Respondent's records for the fellers for the pay periods beginning March 9, show the following: Taylor 3°---------- 71 96 71 74 71 89 72 82 Hughes ----------- 51 62 64 68 69 69 67 84 Swan------------- 39 47 50 47 52 53 52 61 Norrell--- --------- 48 58 34 56 61 58 51 She had less repairs than the other operators, received special assignments to do difficult work that others could not perform, and helped other operators. She was complimented on her production by Supervisors Jackie Grantham, Curtis, and Riley. The last occasion was 2 or 3 weeks before her discharge, when she was commended by Supervisor Curtis.39 After Taylor's discharge, the remaining fellers worked overtime for 2 weeks, working 1 hour extra each day and on Saturdays until dinner. 3s In its cross-examination of Taylor, Respondent made a misleading attempt to show that for the payroll period of June 1 to 13, Taylor's makeup (difference between actual production and hourly wage) was $45.34, far in excess of that of Norrell whose makeup was only $16 94. However, as is evidenced by Respondent's own records, Taylor worked in excess of 85 hours during that period, while Norrell worked only 23 hours Thus, on an hourly average, Taylor's makeup was only 53 cents as against 73 cents for Norrell. 31 The uncontradicted testimony of Taylor HAMBURG SHIRT CORPORATION 529 When Plant Manager Grantham testified at the outset of the hearing, he testified that Taylor was discharged because of "low production." 40 After the General Counsel had proved that Taylor was the highest producer among the fellers and produced substantially more than the fellers who were not discharged, Grantham again took the stand and ascribed additional reasons for Taylor's discharge, viz, that Taylor had told people in the community that Grantham was going out socially with girls who had had their red marks removed; that while others had improved continually, Taylor had not; and that Taylor had told him that the production quota could never be made. The record is convincing that the reasons advanced by Grantham toward the end of the hearing were purely afterthoughts. Thus Grantham testified that Locke had told him in May that Taylor had accused him of going with the girls. Yet Grantham did not discharge Taylor until June 30. Manifestly, if this were a basis for Taylor's discharge, Grantham would have reacted with righteous indignation and would have discharged her at once. Apparently, then, Grantham did not consider it "of suffi- cient importance to warrant a discharge at the time ... [it] occurred" (N.L.R.B. v. Greensboro Coca Cola Bottling Company, 180 F. 2d 840, 843 (C.A. 4)). The second reason advanced, viz, that Taylor was not improving, is not supported by Respondent's records. Thus, for the pay period beginning May 18, her production exceeded her prior average, then dropped to approximately her average for the next pay period, and again rose in her last pay period.41 Moreover, the fact remains that until the last pay period she was still the highest producer among the fellers. Nor did the other fellers, with the exception of Hughes, show any significant or steady improvement, and clearly were far below Taylor in production.42 The last reason advanced by Grantham fares no better. Taylor's statement that the produc- tion quota could never be made appears to be substantiated not only by Respondent's action in reducing the quota after Taylor left, but it is also supported by Grantham's admission in his speech of June 5 that some of the quotas were too high and would be restudied and by the statement of Supervisor Riley that she did not think she could do any better than the fellers were doing.43 It is thus apparent that none of the reasons advanced by Plant Manager Grantham for Taylor's discharge was the true reason. Rather, I am convinced that each of these reasons is purely a pretext for a discriminatory discharge. Taylor was a known union adherent, and her dis- charge during a pay period and at a time when it was necessary for the other fellers to work overtime in order to make up for the loss of Taylor's production demonstrates quite clearly that her discharge was because of her union membership and activity, and I so find. b. Betty J. Streeter Streeter began her employment with the Respondent on March 29, 1963, and for approximately a year before her discharge on June 30, 1964, worked on top-stitching cuffs. Like Taylor, she was discharged during a pay period. Like Taylor, Streeter was an active union adherent, a fact which was known to Respondent. On two occasions, both within a week before she was fired, she spoke in favor of the Union to other employees. On the second occasion, a day or so before she was fired, Supervisor Rankin was present.44 Unlike Taylor, however, Streeter was not a fast operator. When the red mark system was in effect, she had received one red mark. Respondent's stated reason for Streeter's discharge is low production, and Plant Manager Grantham sought to justify her discharge by comparing her production 40 In an attempt to support Grantham's testimony, Respondent brought out the fact that, when Taylor reapplied for employment and filled out Respondent's application form, she put down as the reason for her previous discharge "low production." I do not con- sider this as an admission that her production was low. This was the reason given to her by Plant Manager Grantham when he discharged her, and an employee reapplying for a job could have no real expectancy of being rehired if she put down a different reason for her discharge, as for example, that she had been discharged for union activity. 41 In view of the foregoing I do not attach any significance to the fact that Taylor was afraid she would be fired in April, at a time when the red mark system was in effect, for failing to improve her production. 4a As the General Counsel aptly suggests, this reason is analogous to the manager of a baseball team benching a player because, although he was the team's leading hitter, he was not improving his batting average. 4s The rncontradicted testimony of Hughes. 44 Nesbitt, Plant Manager Grantham's cousin, was present on both occasions. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with that of the other employees doing this work, Watt and Hale 45 However, an analysis of Respondent's records offered in support of this comparison shows that Streeter's production compares favorably with that of the other employees. Thus, for the last five pay periods preceding her discharge, Streeter's production averaged: 60, 65, 62, 62, and 62.46 During the same period, Watt's production averaged 55, 58, 64, 57, and 45. Thus, Streeter's production exceeded that of Watt for four out of five pay periods.47 Nor was Watt's subsequent production record significantly higher, averaging: 60, 60, 64, 54, 62, 76, 67, 79, and 67, despite the fact that on or about September 15, 1964, the top stitching quota was lowered from 200 to 175 dozen per day. An analysis of Hale's production shows that although in her last five pay periods she achieved production of 77, 84, 89, 95, and 78, these figures are based upon the reduced production quota of 175 dozen, whereas Streeter's produc- tion is based upon a quota of 200 dozen48 Obviously, Streeter was not an outstanding operator, as was Taylor. Neverthe- less, her production compared favorably with that of Watt, the other operator who top stitched cuffs. Certainly it was not so poor as to warrant her precipitate dis- charge in the middle of a payroll period. On the other hand, Streeter had made known in Supervisor Rankin's presence her union adherence 2 or 3 days before the discharge. Considering all of the foregoing, I find and conclude that the reason as- signed by Respondent for Streeteer's discharge was merely a pretext and that the true reason for her discharge was her known union adherence. By such action, Respondent violated Section 8 (a) (3) of the Act. c. Carrie Leasure Leasure, the third employee discharged without warning on June 30, allegedly for low production, had worked for the Respondent for 13 months, most of the time on yoking. She had signed a union card and had talked to several employees about joining the Union. On June 8, at the courthouse meeting, she signed a withdrawal card after Locke had spoken about the fact that two other plants had closed because of the advent of a union.49 Thereafter, she apparently had a change of heart and spoke to employees, including Clyda Faye Brown, a pronounced antiunion employee, about union benefits and told them about her husband's favorable experience as a union member. Leasure was an average, though careful, producer.50 She had received one red mark when the red mark system was in effect.-51 However, there is ample evidence that Leasure was handicapped by working with inferior equipment and that Respond- ent failed and refused to remedy this situation. Thus, the uncontradicted evidence is that Leasure was doing yoking work on a pocket-setting machine. Furthermore, the machines of Christine Riley and Skinner, the other yokers, were equipped with a cutting attachment and yoking table and bar which Leasure's machine did not have. Thus, instead of putting the shirts under the bar on a yoking table and flipping them over as she finished them, Leasure had to put them on the back of a chair and keep one knee on the chair to prevent it from toppling over. On some occasions, the chair did fall over and she would have to pick up the shirts and restack them. After each bundle, Leasure had to take time to cut the threads which joined all the shirts in the bundle, and then shake the bundle and straighten each shirt individually. 16 As in the case of Taylor, Respondent brought out the fact that Streeter in applying for reemployment after her discharge had stated on her application that the reason for her discharge was low production. For reasons previously stated, I do not consider this to be admission on her part that she was, in fact, discharged for low production. 1e The figures represent cents per hour earnings. 17 It may be noted that Watt did not commence working for the Respondent until September 30, 1963, some 7 months after Streeter. This, however, is not significant, as Watt's training period had ended long before the periods used for comparison purposes. 18 Hale was put on top-stitching cuffs after Streeter's discharge. However, the produc- tion figures cited above were achieved after her training period had ended. "The record does not show that Respondent was aware of the fact that she had signed a withdrawal card. 60 She testified without contradiction that since moving into the new plant (approxi- mately 7 weeks before her discharge) she had only six shirts returned to her for repairs. m She had originally worked as a pocket setter, but was transferred to yoking because she did not do well as a pocket setter. HAMBURG SHIRT CORPORATION 531 Because their machines were equipped with a cutting attachment and yoking table and bar, Riley and Skinner did not have to take time to perform these extra opera- tions. Leasure testified that the added work cost her an hour or more per day.52 Leasure admittedly made several requests for a yoking table and bar and was told by both Grantham and Supervisor Riley that they would try to get her one "when we got around to it." The last time she asked for one was 1 week before her discharge. It is quite apparent that Respondent was well aware of the handicap under which Leasure was operating and tolerated her comparatively low production for an extended period. Consequently, it is astonishing that Respondent should suddenly find her production so unsatisfactory as to warrant a discharge without warning in the middle of the pay period, at the same time when it discharged two other known union adherents.53 In view of all the foregoing, I find and conclude that low pro- duction was not the real reason for Leasure's sudden discharge. Rather, I am con- vinced that the reason assigned was merely a pretext and Leasure was, in fact, dis- charged because of her adherence to, and activity on behalf of, the Union, in violation of Section 8 (a) (3) of the Act. 3. As to the discharges of Cotton, Biggs, and Jackson In his speech of July 16, Bernstein told the employees that the prior terminations were for the benefit of all the employees and that he was satisfied with the production of everybody remaining and that they did not need to worry about their jobs.54 However, on August 27, Plant Manager Grantham made a speech to the employees in which he said that there was agitation in the plant and that such agitation would have to stop or the guilty persons would be fired. On August 28, despite Bernstein's earlier assurance that he was satisfied with everybody's production, Respondent dis- charged employees Cotton, Biggs, and Jackson, allegedly for low production. a. Imogene Cotton Cotton started to work for the Respondent on February 18, 1964, and was employed as a trimmer. Her adherence to the Union was known to the Respondent at the time of her discharge, as she was named in objections Nos. 4 and 12, filed by the Union to the conduct of the election. Also, when she and Margie Rowe inter- viewed Bernstein in the office the day before the election, Cotton indicated to Bernstein that she had had some pleasant experiences working in a union shop. Plant Manager Grantham testified that she was discharged because of low produc- tion. The record does not substantiate this reason. While admittedly she was pro- ducing less than trimmers Bozeman, Pennington, and Rowe, an analysis of Respond- ent's records demonstrates that she produced more than trimmers Foster and Williamson. The comparison of Cotton's production with that of Foster and Williamson for the pay periods beginning May 4, until Cotton's discharge is as follows: Cotton ------------ 72 59 79 87 80 82 80 72 Williamson------_ 50 46 76 67 63 61 66 62 Foster------------- 67 58 78 s0 77 76 71 69 Although Cotton's production exceeded that of Williamson and Foster, the latter were not discharged. I find and conclude that low production was not the real reason for Cotton's discharge, but was merely a pretext. Cotton was discharged 52 Supervisor Riley testified that Leasure lost a very few minutes a day because of the additional operation. I am of the opinion that Leasure was more qualified to testify as to the amount of time lost, and I credit her version. Supervisor Riley also testified that she put Leasure on Christine Riley's machine one day and that Leasure told her she thought she could do better on her own. However, Supervisor Riley admitted that it takes about 2 or 3 days to get used to a yoking machine with a bar on it. 55 As in the case of Taylor and Streeter, Respondent brought out the fact that Leasure in applying for reemployment after her discharge had stated that the reason for her dis- charge was low production For the reasons previously stated, I do not consider this to be an admission on her part that she was, in fact, discharged for low production. '4 The credited testimony of Dodd, Cotton, Merlene Swan, and Biggs. 217-919-66-vol. 15 6-3 5 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of her adherence to the Union. Even though the election had already been held and the Union had been defeated, the fact is that on August 19, the Regional Director had recommended that the election be set aside and a new election be directed. Respondent was therefore faced with the possibility of another election and a resurgence of union activity. In this posture, by discharging Cotton, it rid itself of another union adherent. Respondent thereby violated Section 8(a)(3) of the Act, and I so find. b. Gay Nell Biggs Biggs began to work for the Respondent in September 1963, and was employed as a presser. She was a known union adherent. On or about July 3, she had told Supervisor Howell that she was on the organizing committee and was working to organize the plant. In addition, she was referred to in objection No. 9 filed by the Union to the conduct of the election. As in the case of the other dischargees, Plant Manager Grantham testified that Biggs was discharged because of low production. Biggs was an average producer, but the record indicates that a presser's production could be affected by differences in the material of the shirts and the sizes of the shirts which a supervisor distributed to the various pressers. Thus, Biggs testified without contradiction that the medium- sized shirts are the easiest to work on, and the small and large sizes are harder to do and take longer. Supervisor Howell favored Denton who outproduced Biggs, and Carter whose production, after the end of her training period, was far below that of Biggs. Also, Supervisor Howell assisted Carter by buttoning shirts for her, number- ing collar strips, and pressing for her.55 It is significant that both Carter and Denton in their interview with Bernstein had expressed their appreciation to him for their jobs,56 and therefore could be consideied as loyal employees. It is apparent that if production were the criterion for discharge, Carter, rather than Biggs, would have been discharged. For the last three pay periods (after Carter's training period had ended) Biggs far outproduced Carter: Carter Hfl 82 60 Biggs ----------------------- Nor was Biggs' production significantly different from that of Carpenter who was also retained.57 While Biggs' production was not high, it was not low compared to that of Carter and did not warrant a precipitate discharge. I am convinced that her discharge, like that of Cotton was motivated by her union adherence, in viola- tion of Section 8(a)(3) of the Act, and I so find. c. Dianne Jackson Jackson, whose performance records are carried by the Respondent under her maiden name of Glennon, was employed by the Respondent in March 1963 as a cuff closer. She was a member of the Union, and on the day of the election was seen by Bernstein in the company of the Union's organizing committee, National Representative Hebner, and Union Officials Cohen and Metker 58 While Jackson was one of the slower producers among the four cuff closers,59 the record shows that within 3 weeks before her discharge, she had been complimented es The credited and uncontradicted testimony of Thornhill 51 The credited and uncontradicted testimony of Thornhill c The comparison of Biggs' production with that of Carpenter for the pay periods be- ginning May 4 is as follows - Biggs ----------------------- 97 100 106 95 95 85 82 88 Carpenter-__-_ _ 92 96 97 94 92 88 87 95 58 The credited testimony of Jackson, Miller, and Holland °Plant Manager Grantham testified that on one occasion (date not specified) he had told Jackson that she had entirely too much makeup work and that if she could not bring it down she would be discharged However, Jackson testified in rebuttal that the only time Grantham spoke to her alone was in the summer of 1903, when on the previwns day he had talked to the cuff closers as a group about improving, their production Jackson had been absent that day, and Grantham spoke to her on the following day when she returned to work HAMBURG SHIRT CORPORATION 533 by Supervisor Riley who later told Miller that she thought that Jackson was going to be a good cuff closer. Also, about a week before the discharge, when Jackson spoke to Supervisor Riley about a possible layoff, Supervisor Riley assured her that she did more shirts than Vlrgie Bussell, and if she was going to lay off anybody it would be Bussell.60 As is apparent from the Respondent's production records, Supervisor Riley was apparently mistaken in believing that Jackson's production was significantly greater than that of Bussell. An analysis of Respondent's production records for the pay periods since May 4 indicates that the two employees were producing approximately the same amount: Average Jackson. ------- 60 76 78 69 70 85 83 83 7538 Bussell.-------- 78 62 61 72 76 85 88 79 7538 It is also apparent from the foregoing analysis that Jackson was earning an average of 70 cents an hour when Bernstein made his speech on July 8, assuring the employ- ees that everybody was making satisfactory progress. For the next three pay periods she produced an average of 83 cents, a substantial increase. One may well ask: If a rate of 70 cents an hour was satisfactory in July, why did a rate of 83 cents an hour suddenly become unacceptable 6 weeks later? If the reason assigned for the discharge of Jackson were a shortage of work necessitating the layoff of one of the four cuff closers, Respondent might be able to justify retaining Bussell over Jackson , as the production of both of these employees was approximately the same. However, this was not the reason assigned for dis- charging Jackson ; rather it was Jackson's low production. Since Jackson's produc- tion was slightly greater than that of Bussell, it is apparent that low production was not the real reason for the discharge. Considering the fact that Jackson was dis- charged in the middle of a pay period at the same time as Cotton and Biggs, two active union adherents, I am compelled to conclude that it was her union member- ship that was the real reason for her discharge, and I so find. Accordingly, Respondent violated Section 8(a)(3) by discharging Jackson. 4. As to the layoff of Williams Williams was employed as a sleever and began to work for the Respondent on February 20, 1963. She worked last on August 21, 1964 , when she was taken ill with pneumonia . She returned to work on September 21, and was told by Plant Manager Grantham that she had been laid off.61 Next to Taylor, Williams was the most active union adherent . She had invited employees to come to the first union organizing committee meeting at the roadside park on May 29. In addition , she distributed union cards and secured approximately 10 signatures . Respondent was aware of her adherence to the Union . Her name appeared on the union telegram of June 1 (and a subsequent one sent September 2) as a member of the union organizing committee . In addition, during the interview with Bernstein just prior to the election, when Williams complained about the folding attachment on her machine , she told him that the maladjusted folding attachment affected her production and would probably be used by Respondent as an excuse to fire her because of union activity. Plant Manager Grantham testified that : Williams' employment was terminated because she operated a surging machine, and that the use of Burgers had been dis- continued. Toward the end of the hearing, Grantham testified that he intended to recall Williams "when I find something that I figure she can do , which will have to be a straight needle machine." 66 The uncontradicted testimony of Jackson , corroborated by Miller 61 There is a suggestion in Respondent's cross-examination of Williams that the doctor's statement which she presented to Grantham when she sought to return to work on Sep- tember 21, was not in accordance with Respondent's rules, because it was not written on the doctor's letterhead. However, Grantham admitted later that this had nothing to do with his failure to reinstate her 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Williams was hired, the sleeving operations was performed on a surging machine. Later, Respondent gradually eliminated the surging machines and replaced them with folding machines.62 While operating a surging machine, Williams was the fastest operator.63 Eventually, Williams was placed on a folding machine. However, she had difficulty in obtaining production because the folding attachment was not properly adjusted. Williams complained about the folding attachment, and Bernstein stated that he would have the machine fixed even if it were necessary to procure special help from Little Rock. However, nothing was done. Because of the condition of the folding machine, Williams divided her time between the folding machine and the surging machine. After Williams' layoff, Jeffers, who worked on Williams' folding machine, also had difficulty because of the maladjusted folding attachment. Curtis, Respondent's mechanic, took the folding attachment off and worked on it. It was finally adjusted.64 Williams reapplied for a job on October 7, but was not hired, despite the fact that since her layoff, Respondent has hired many employees for various sewing jobs including four on sleeving.65 As previously noted, Grantham testified that he intended to reinstate Williams "when I find something that I figure she can do, which will have to be a straight needle machine." I find no basis in the record for the precondition stated by Grantham. In view of her high production on a surger and Respondent's failure to adjust the folding attachment when she operated a folding machine, there is no showing that Williams was incapable of operating other types of sewing machines. Also, Bardin, a sleever who had been laid off on September 18, was recalled on October 27, without requiring her to reapply, although Williams admittedly had outproduced Bardin.66 Respondent argues that its failure to recall Williams before Bardin cannot be ascribed to Williams' union activity. It points to the fact that Bardin was also a member of the Union, a fact known to Respondent when it recalled Bardin, by virtue of the fact that Bardin's name had been mentioned in charges filed against the Respondent. Respondent also states in its brief that, since the hearing, Williams has been recalled to operate a surger and argues that if her layoff and Respondent's failure to recall her sooner were due to her union activity, Respondent would not have recalled her at all. The argument is fallacious. First, it compares only the recall of Bardin and Williams, and ignores the fact that in the interim Respondent had hired new employees as sleevers and to operate other sewing machines. Second, the facts underlying the argument are equally capable of supporting the conclusion that Respondent may have decreed a longer layoff for Williams who was one of the most active union workers, while Bardin's union activity was limited to signing a card. In sum, I find and conclude that the Respondent's layoff of Williams and its failure to recall her while hiring other employees was discriminatorily motivated in violation of Section 8 (a) (3) of the Act. 5. As to Respondent's refusal to recognize the Union a. The Union's majority As previously noted, by June 5, when it made its demand for recognition, the Union had signed up 92 out of a total of 123 production and maintenance employees 52 The surging machine, attaches the sleeves to the body of the shirt in the same manner as sleeves on men's jackets are sewed on to the coat, whereas a folding machine makes 2 parallel rows of stitches . Both machines are double -needle machines ; on a surger, one needle is behind the other, while on a folding machine they are side by side. The fold- ing machine has an attachment called a folder which is bolted onto the machine and guides both pieces of the material to the needles , whereas on the surger, the operator puts both pieces of the material together manually and then sews them together. 83 The credited testimony of Williams, corroborated by Hughes and Hammil. 64 The credited testimony of Marcell Norrell, after Plant Manager Grantham testified evasively that if there were any repairs performed on the machine, he did not know about it. 85 Indeed, two new employees started to work on the very day that Williams was laid off. 66 Grantham stated that he called Bardin back in preference to Williams because the latter had too much absenteeism . Although Grantham told Williams that he would recall her after Bardin, he said nothing to her about absenteeism. HAMBURG SHIRT CORPORATION 535 in the appropriate unit.67 Respondent, however, contends that a majority of the employees did not designate the Union as its bargaining representative because a great number of those who signed the union cards did so on the basis of misrepre- sentations as to the purpose and the effect of the cards , and consequently such cards were not valid designations . Before analyzing the testimony in this regard, it should be recalled that the card had a twofold purpose: ( 1) it was an application for mem- bership in the Union , and (2 ) it appointed the Union to represent and negotiate for the signer in all matters pertaining to wages, hours , and other conditions of employ- ment. As to the first purpose of the card, Respondent points to the fact that a number of employees testified that they were told that the card did obligate them to the Union . However, even though the cards was not valid as an application for membership, its validity as a designation of the Union as bargaining representative was not affected thereby. Greenfield Components Corporation, 135 NLRB 479, 490, enfd. 317 F. 2d 85 (C.A. 1); Continental Oil Company v. N.L.R.B., 113 F. 2d 473, 480 (C.A. 10). Thus the Supreme Court pointed out in Ford Motor Company v. Huffman, 345 U.S. 330, 338: A bargaining representative , under the National Labor Relations Act, as amended, often is a labor organization but it is not essential that it be such. The employees represented often are members of the labor organization which represents them at the bargaining table, but it is not essential that they be such. With regard to the second stated purpose of the card , viz, the designation of the Union as bargaining representative , the Board in several recent cases has made it clear that the representation of a union official or soliciting employee that the card was for the purpose of securing an election , does not invalidate the designation of the Union as the bargaining representative , unless the representation relied on by the signer was to the effect that this was the only purpose of the card. Cumberland Shoe Corporation, 144 NLRB 1268, amended by unpublished order dated January 13, 1964, S.N.C. Manufacturing Co., Inc., 147 NLRB 809, enfd sub nom. International Union of Electricians, Radio and Machine Workers, AFL-CIO v. N.L.R. B., 352 F. 2d 361 (C A.D.C.); Gotham Shoe Manufacturing Co., Inc., 149 NLRB 862; Boot-Ster Manufacturing Company, Inc., 149 NLRB 933. In evaluating the testimony of employees regarding any alleged misrepresenta- tions made to them , I have considered the testimony of each witness as a whole. Since most of the witnesses appeared to be unsophisticated in semantics , I do not consider as reliable the affirmative answers which they gave in response to leading and suggestive questions propounded by Respondent's counsel, where such answers appear to be in conflict with the rest of their testimony . Thus, after testifying to what they had been told as to the purpose of the card (e g., to get an election), the witnesses were then asked by Respondent's counsel: "Were you told that this was the only purpose of the card?" Many replied in the affirmative. Yet it is clear from their subsequent interrogation by counsel for the General Counsel that what they meant was that what they had testified to was all that they had been told, and that the person who had solicited them to sign did not affirmatively tell them that this was the only purpose of the card. I believe that the truth is best revealed by that portion of the testimony in which each witness stated in her own words what she was told when she was asked to sign the union card.ss For the same reason, I e7 The appropriate unit as set forth in the stipulation for certification upon consent election consists of: all production and maintenance employees , excluding office clerical employees , professional employees, guards, and supervisors as defined in the Act. In determining the number of employees in this unit , I have excluded employee Fair- child who signed a union card but was terminated on June 2 before the Union made its demand for recognition . Also excluded are Supervisors Rankin , Curtis , Howell , Jackie Grantham , and Riley , Walter Rayburn who is a guard within the meaning of the Act, and office employees Betty Hobbs and Lowry. a° In this connection , I note the Board 's recent statement in Cumberland Shoe Corpo- ration, 144 NLRB 1268 , footnote 3, added by unpublished order issued January 13, 1964, amending the Board's Decision and Order The record indicates that the testimony to this effect consisted of affirmative re- sponses by the signatories to leading questions propounded by Respondent 's counsel, upon cross -examination , as to whether they were told that the purpose of the cards was to secure an election . We do not deem such testimony sufficient to controvert the statement of the purpose and effect of such cards contained on the face thereof, nor do we consider it inconsistent with an 'understanding that the cards serve the dual purpose of designating a representative and of securing an election. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD give no weight to what might otherwise be impeachment consisting of conflicting answers given to Attorney Sutton's questionnaire during the pretrial interviews. In particular, the employees interviewed were asked: 4. Were you told that the card was merely for the purpose of getting a chance to vote on the union? [Emphasis supplied.] Most of those interviewed answered in the affirmative. Yet when they testified, it became clear that they did not understand the significance of "merely" in the question. I find that 68 employees signed union cards without any misrepresentation made to them concerning the purpose and effect of the card as a designation of representa- tives. Thus, 16 employees: Banks, Golden, Hagood, Harville, Holland, Merlene Swan, Joyce Pennington, Dodd, Rial, Taylor, Thornhill, Williams, Hughes, Christine Carpenter, Johnson, and Bellott, were present at the initial meeting of the organizing committee on May 29 at the roadside park when National Representative Hebner read the card to them and had the employees, themselves, read the card, and told them that the card could be used for several purposes: (1) to get an election, (2) to negotiate a contract, and (3) as a card check.69 The following 16 employees were told that the card was for membership in the Union or to get a Union in the plant, or were asked to sign if they were interested in a union or in forming a union: Blocker. Cotton, Charlotte Cunningham (Rowe),70 Frisby (Watt), Margie Rowe, Eubanks, Gifford, Gulledge, Hayden, Hollis, Hopkins, Leasure, Wilson, Pilgrim, Stewart Farmer, and Molly Bozeman.71 Accordingly, their cards should be considered valid designations. The following were told that the purpose of the card was to get a card check: Lena Carpenter, Laverne Swan, and Louise Swan. Their cards are, therefore, valid designations of the Union as their bargaining representative. The following 22 employees were told nothing about the purpose of the card by the person who solicited their signatures: Alexander (Green), Bardin, Biggs, Nora Bozeman, Rebecca Brown, Donald Cunningham, Doss, Ellis, Guthrie, Hale (William- son), Jackson, McLeod, McManus, Martin, Barbara Ann Miller, Sue Miller, Mallie Norrell, Marceil Norrell, Barbara J. Pennington, Slocum, Stell, and Streeter. I therefore, find and conclude that no misrepresentation was made to them. w The credited testimony of Hebner who impressed me as a responsible, honest union official His testimony was corroborated by Banks, Beliott, Holland, Joyce Pennington, Thornhill, and Taylor. Harville testified that she was present at the first union meeting at which Hebner told her ",that it was to get an election and that's all." In view of the abundant credible testimony that Hebner fully explained the purposes of the cards at this meeting, I do not credit Harville's limited version. Johnson testified that she received her card from Hebner who told her that the pur- pose of the card "was to show that I was interested in hearing what the Union had to offer," and that Hebner told her that this was the only purpose of the card. It is not clear from her testimony where Hebner's solicitation occurred. Presumably it was at the original organizing meeting held on May 29, as there is no evidence in the record that Hebner solicited any employee individually. If Hebner's solicitation of Johnson occurred at the organizing meeting, then Johnson's testimony cannot be credited, as it is in conflict with the greater weight of the credible evidence that Hebner fully explained the purposes of the card to those present. In any event, Hebner impressed me as being a straightforward person. Thus, according to Johnson, at the general union meeting at Crossett on June 5, he candidly told the employees that while they could not get their cards back, they could sign a card to kill the effects of the first one. It is also significant that although Johnson testified that she first heard of a card check at the meeting in Crossett, she did not indicate to Hebner that she did not sign for that purpose and that she there- fore wanted to withdraw her designation, as did Kilerease In sum, I find and conclude that there was no misrepresentation made to Johnson. 40 In some instances, an employee as single when she signed the card, and used her married name when she testified. The name in parentheses is the maiden name which she used when she signed the card. 'n Molly Bozeman's testimony was somewhat vague The gist of it, however, is that Golden told her "that the girls that were interested in a union for Hamburg Shirt Fac- tory-should sign the card and a representative would be sent down there if enough cards were received." She also testified that she read the card before she signed it. Farmer's testimony is somewhat similar. On the whole, I am satisfied that there were no mis- representations made to either Molly Bozeman or Farmer and their cards should be con- sidered valid designations of the Union as bargaining representative. HAMBURG SHIRT CORPORATION 537 The next group of employees to be considered consists of those who were told by the solicitor that the purpose of the cards was to get an election. Barrett testified that Taylor presented the card to her and told her it was to find out if there were enough people interested in having an election. She was then asked whether she was told anything else about the card, and answered that she did not think so, except that it did not obligate her in any way. She was then asked; Q. Were you told that the card didn't have any other purpose, other than getting an election call? A. Yes. However, on cross-examination she testified that she read the card before she signed. Then ensued the following colloquy: Q. Did she tell you the card didn't mean what was printed on it? A. Well, she said that it didn't mean that you were joining the Union. Later she was asked: Q. Did Mrs. Taylor say the only reason that you are signing this card was for the purpose that she said? A. I don't think she used the words, "the only reason." Based upon all of Barrett's testimony I find and conclude that Taylor did not .represent to her that the only purpose of the card was to get an election. Bonds testified that Harville gave her a card and told her that the purpose of the card was to get an election. Bonds testified that she read the card, took it home, and read it several times. Bonds admitted that when she was interviewed by Attorney Sutton shortly before the hearing she was asked: "Were you told that the card was merely for the purpose of getting a chance to get an election called?" and that she answered, "Yes, I don't know whether I would have signed the card if this statement had not been made to me." However, she testified that she did not remember the word "merely" in the question. Bonds also testified that she refused to sign the questionnaire. Based on all of the foregoing, I find and conclude that Bonds was not told that the only purpose of the card was to get an election. Burns testified that Taylor told her that the purpose of the card was to get an election, but that Taylor did not use the word "only." She testified further that she read the card before she signed it. I therefore find and conclude that there was no misrepresentation to her. Hammil testified that Taylor told her that the purpose of the card was to get an election, but that she did not think that Taylor told her that this was the only purpose of the card. I find and conclude that no misrepresentation was involved. Kelley testified that Holland told her that if 51 percent of the employees signed cards, they could bring it to a vote. She testified further that that was all that she was told and that she did not remember Holland's saying that the card had no other purpose or that it did not mean what it said. I find and conclude that no misrepresentation was made to Kelley. Julia Woods testified that Holland told her that they had to get a certain number of cards signed before they could have an election. She was not told that the card had no other purpose. I find and conclude that her card was not procured by misrepresentation. Consistent with the Board's holdings cited above, I find and conclude that the cards of Barrett, Bonds, Burns, Hammil, Kelley, and Julia Woods were valid desig- nations of the Union as the signers' bargaining representative. The following persons did not testify with any specificity as to the identity of the person who made any alleged representation to them concerning the purpose of the card: Fox testified that she did not remember who presented the card to her but believed it was Banks and that the alleged representation, viz, that the purpose of the card was to get more information about getting a union down in the shirt factory, was a statement made in the course of a general discussion of a group of people standing around her machine. Jeffers testified that she did not remember who presented the card to her, but that she was told it was "an interest to find out more about the Union." She testified further that she read the card before she signed it and that nobody told her that the writing on the card did not mean what it said. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coulter testified that there were several employees handing out cards and several asked her to sign, that she did not remember who gave her the card or who talked to her about the purpose of the card. She testified further that she was told that there had to be a certain majority signed in order for the Union to send a repre- sentative to explain the Union to the employees. She testified that that was the only purpose that was stated to her, but she did not remember whether the word "only" was used. Virgie Bussell testified that she did not remember who gave her the card, that she was told that "it was to see if we could have a union in our building, if we were interested, and we would have meetings later on to see what the Union could give us and that we weren't obligated in any way, that we would have an election if we had enough cards signed." Rushing testified that she was told the purpose of the card was to have a chance to vote for or against the Union, that she did not remember who presented the card to her, and did not recall that she was told that this was the only purpose. She testified further that she read the card before she signed it. The defense of misrepresentation is not established by testimony which fails to identify the person making the alleged misrepresentation. Nor is it established by proof of statements of employees, other than the person soliciting the signature to the card, made in the course of an informal discussion regarding the cards. In the foregoing group, the testimony is either that the employee signing the card could not identify the person making the alleged misrepresentation or that she got the impression from a general conversation of a group of employees. Accordingly, I find and conclude that the defense of misrepresentation is not established as to the cards of employees Fox, Jeffers, Coulter, Virgie Bussell, and Rushing, and such cards must properly be counted as designating the Union as bargaining representative. We now come to a group of employees who testified that the person who solicited their signatures told them that the purpose of the card was one of the following: (a) to have someone come down to talk about the Union; (b) only for the purpose of having an election; (c) to show she was interested in hearing what the Union had to offer; and (d) to go to a union meeting and hear more about the Union. In this group are 23 employees: Bennett, Caine, Courson, Judkins, Ladd, Paskell, Bobbie Pennington, Marcile Pilgrim, Pollack, Pullin, Ridgell, Riley, Sparkman, Tucker, Don Woods, Clyda Faye Brown, Winnie Bussell, Tommy Carpenter,72 Cecil, Chadwick, Clark, Coleman, and Coody. The above purposes are so limited in nature as to negate the concept that the signer was designating the Union as its bargaining representative. Accordingly, I find and conclude that the cards signed by the above- named persons should not be counted as designations of the Union. Nor have I counted as a valid designation for the Union the card signed by Kilcrease. She testified that Johnson asked her to sign the card and "that it would show that I was interested in the Union, that if I was interested in it to sign the union card." However, at the general union meeting at Crossett on June 8, when National Representative Hebner was discussing a card check, Kilcrease openly stated that she did not sign the card for that purpose. This occurred after the Union had made a demand for recognition and Plant Manager Grantham had committed the unfair labor practice discussed above. It is quite possible that Kilcrease's action may have been influenced thereby. However, inasmuch as a majority of the employ- ees had validly designated the Union as its bargaining representative, I need not decide whether Kilcrease's card should be considered as a valid union designation. In view of all the foregoing I find and conclude that 68 out of a total of 123 maintenance and production employees in the appropriate unit validly designated the Union as its bargaining representative and that on June 8, when Respondent received the Union's request to bargain, the Union represented a majority of the employees in the appropriate unit. b. As to Respondent's good-faith doubt of the Union's majority Respondent contends that it had a good-faith doubt as to the Union's majority because a number of employees had come to Plant Manager Grantham and told him that they had signed the union cards on the basis of misrepresentations as to the effect and purpose of the cards, while other employees had told him that they had signed the cards because they had been informed that if they did not sign, 72Although Carpenter did not testify to any alleged misrepresentation, he testified that he returned his card to National Representative Hebner and told him that he was not signing as a member , but to get an election. HAMBURG SHIRT CORPORATION 539 they would be deprived of their jobs. On the basis of the record, I must reject this contention . As previously noted, the only employee Grantham identified as com- plaining to him was Marcile Pilgrim, who told him that she signed because she feared she would otherwise lose her job. Only two other employees, Ladd and Coody, testified that they had told Grantham that they would like to get their cards back. Furthermore, Bernstein testified that he knew nothing of the meeting at the courthouse on June 8 until he came to Hamburg on June 15.73 There is no evidence that Respondent attempted to determine whether there were any misrepresentations made to the employees as to the purpose and effect of the cards until Attorney Sutton interviewed the employees approximately 2 weeks before the hearing. It therefore appears that Respondent's claim that it had a good-faith doubt as to the majority because of the alleged misrepresentations is an afterthought. Moreover, it is clear from the record that Respondent utilized the time intervening between the Union's request for recognition and the election to dissipate the Union's majority by the unfair labor practices detailed above, which were patently calculated to accomplish that purpose. Accordingly, I find and conclude that the Respondent did not entertain a good-faith doubt as to the Union's majority when it refused to recognize the Union and thereby violated Section 8(a)(5) and (1) of the Act. 6. As to the objections to the election In his report on objections, the Regional Director recommended that objections Nos. 1, 2, 7, and 8 filed by the Union be overruled, that objection No. 13 be sustained, and that the election be set aside and a new election be directed. In the event that the foregoing recommendation was not adopted, he recommended further that a hearing be held to resolve the issues raised by objections Nos. 3, 4, 5, 6, 9, 10, 11, and 12. The objections referred to me for decision are as follows: 3. On or about June 30, 1964, the Employer terminated the employment of Lula Taylor, Carrie N. Leasure and Betty Joe Streeter because of their mem- bership in and activities on behalf of the Amalgamated. 4. On or about July 16, 1964, the employer's President, I. J. Bernstein and Plant Manager, Robert Grantham, unlawfully interrogated employees Ima Jean Cotton and Marjorie Rowe with respect to their sympathies in the forthcoming election. 5. On or about July 16, 1964, the employer's President I. J. Bernstein threatened employee Elvie Thornhill and a group of other employees with plant removal and stated that he would refuse to bargain with the Amalgamated in the event that they should win the election. 6. On or about July 15, 1964, the employer, by its Supervisor Margaret Riley, inquired of employee Rebecca Brown when she would prefer to have her vaca- tion. Prior to this time the employees were not definitely informed that they would be granted a vacation. 9. On or about July 11, 1964, Howard Scroggins, a farmer and member of the local Chamber of Commerce, told Allen Biggs and his wife that the employ- er's plant would close if the Amalgamated won the election. 10. On or about July 15, 1964, Cearey Wilcox, a member of the Chamber of Commerce told employee Lydia Steel that the employer would close its plant if the Amalgamated won the election. 11. On or about July 15, 1964, Bruce Smith, a member of the Local Chamber of Commerce told employee Leone Bardin that the employer would close the plant if the Amalgamated won the election. 12. On or about July 10, 1964, Hudson Rogers, a member of the local Chamber of Commerce stated to employee Ima Jean Cotton that the plant would move if the Amalgamated won the election. 13. On July 16, 1964, an advertisement was placed in the Ashley County Leader, the substance of which threaten the employees with plant removal in the event that the Amalgamated was successful in the election.74 78 It does not appear from the record that Respondent ever saw the withdrawal slips or was advised who signed them at the courthouse meeting. 74 It is noted that the spelling of some of the names in the foregoing objections is in- correct. The correct spellings are used in my findings , supra. Thus , an objection No. 10 the name "Cearey Wilcox" is obviously a reference to Searcey Wilcoxon , Jr, and "Lydia Steel" should be Lydia Stell. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Objections Nos. 4, 6, and 9 are not supported by a preponderance of the evidence and should therefore be overruled. Objection No. 5 contains two allegations. As to the allegation that Bernstein threatened employee Thornhill and a group of other employees with plant removal, although there is no evidence that Bernstein directly threatened these employees with plant removal, I have heretofore found that he was specifically asked about the threats of the businessmen that the plant would close and did not repudiate such threats . To that extent the objection should be sustained . As to the second part of objection No. 5, that Bernstein stated he would refuse to bargain with the Amalgamated in the event that they should win the election, while I have credited Thornhill's version of her conversation with Bernstein, I do not find that the effect of his statement was that he would refuse to bargain with the Amalgamated . The findings that I have heretofore made fully support objec- tions Nos . 3, 10, 11 , 12, and 13. These objections are meritorious and should be sustained . In view of the foregoing, I find and conclude that during the critical preelection period Respondent engaged in a course of conduct which interfered with the employees' freedom of choice in the selection of a bargaining representative. The election should therefore be set aside. I have heretofore found that the Union represented a majority of the employees in the appropriate unit when it made its request for bargaining and that the Respond- ent did not entertain a good-faith doubt as to the Union 's majority, but engaged in extensive and flagrant violations of Section 8(a)(1) and (3) of the Act for the purpose of undermining the majority status. Accordingly, instead of recommending that a new election be held, I shall recommend that the Respondent be ordered to bargain with the Union. Bernel Foam Products Co., Inc., 146 NLRB 1277; S.N.C. Manufacturing Co., Inc., 147 NLRB 809, enfd. sub nom. International Union of Electricians, Radio and Machine Workers, AFL-CIO V. N.L.R.B., 352 F. 2d 361 (C.A.D.C.); The Colson Corporation v. N.L.R.B., supra. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Hamburg Shirt Corporation set forth in section IV, above, occur- ring in connection with the operations of Respondent set forth in section I, above, have a close , intimate, and a substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow thereof. VI. THE REMEDY Having found that the unfair labor practices affected the results of the Board- conducted election held on July 17, and that there is merit to some of the objections to conduct affecting result of election , I shall recommend that the election be set aside. Since I have found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3 ), and (5 ) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discharged Lula Taylor , Carrie N. Leasure, Betty Jean Streeter, Gay Nell Biggs, Imogene Cotton , and Dianne Jackson, and laid off Lois Williams because of their membership and/or activity on behalf of the Union, I shall recommend that, if it has not already done so, the Respondent be required to offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights, dismissing, if necessary, any employees hired after their discharge or layoff. Respondent should also be required to make them whole for any loss of earnings they may have suf- fered because of the discrimination against them, with backpay computed in the customary manner.75 I shall further recommend that the Board order the Respond- ent to preserve and on request, make available to the Board or its agents, payroll and other records to facilitate the computation of the backpay due and the right of employment. As the unfair labor practices committed by the Respondent are of a character striking at the root of employee rights safeguarded by the Act , I shall recommend that it cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. 75F. W. Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co., 138 NLRB 716. HAMBURG SHIRT CORPORATION 541 RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, Hamburg Shirt Corporation, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Amalgamated Clothing Workers of America, AFL-CIO, or in any other labor organization of its employees, by discharging, lay- ing off, or in any other manner discriminating against employees in regard to hire and tenure of employment or any term or condition of employment. (b) Threatening to go out of business or to curtail expansion if a majority of the employees select Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization of its employees, to represent them. (c) Promising and/or unilaterally granting benefits in violation of Section 8(a) (1) of the Act. (d) Interrogating employees concerning their or other employees' membership in, or activities on behalf of, Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization of its employees, in a manner constituting inter- ference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (e) 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 any -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 and all such activities. (f) Refusing, upon request, to bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of all employees in the following appropriate unit: All production and maintenance employees at the Respondent's Hamburg, Arkan- sas, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to Lula Taylor, Carrie N. Leasure, Betty Jean Streeter, Gay Nell Biggs, Imogene Cotton, Dianne Jackson, and Lois Williams immediate and full reinstate- ment to their former or substantially equivalent positions (if Respondent has not already done so), without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired subsequent to their discharge or layoff, and make them whole for any loss they may have suffered as a result of the Respondent's discrimination against them in a manner set forth in the section of the 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, time- cards, personnel records and reports, and all other records necessary for the deter- mination of the amount of backpay due. (c) Notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Upon request, baigain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of the employees in the appro- priate unit with respect to rates of pay, wages, hours of employment, and other condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (e) Post at its Hamburg, Arkansas, plant copies of the attached notice marked "Appendix." 76 Copies of such notice, to be furnished by the Regional Director for Region 26, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. 70 If this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order" 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director, in writing, within 20 days from the date of the receipt of this Decision , what steps Respondent has taken to comply herewith.77 I further recommend that the election held July 17, 1964, in Case No. 26-RC- 2203, be set aside. 77 If this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 26, 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 Amalgamated Clothing Workers of America, AFL-CIO, or in any other labor organization of our employees, by discharging, laying off, or in any other manner discriminating against employ- ees in regard to hire and tenure of employment or any term or condition of employment. WE WILL NOT threaten to go out of business or curtail expansion if a majority of the employees select Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization of our employees, to represent them. WE WILL NOT promise and/or unilaterally grant benefits in violation of Sec- tion 8 (a) (1) of the Act. WE WILL NOT interrogate employees concerning their or other employees' membership in, or activities on behalf of, Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization of our employees, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act. WE WILL NOT refuse, upon request, to bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of all employees in the following appropriate unit: All production and maintenance employees at our Hamburg, Arkansas, plant, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 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 any 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 and all such activities. WE WILL offer to Lula Taylor, Carrie N. Leasure, Betty Jean Streeter, Gay Nell Biggs, Imogene Cotton, Dianne Jackson, and Lois Williams immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired subsequent to their discharge or layoff, and make them whole for any loss they may have suffered as a result of our discrimination against them. WE WILL, upon request, bargain collectively with Amalgamaeted Clothing Workers of America, AFL-CIO, as the exclusive representative of the employ- ees in the appropriate unit with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named Union or any other labor organization. HAMBURG SHIRT CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) CAL-SAMPLE PRINTERS, INC. 543 NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service and the Universal Military Training and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161. Cal-Sample Printers, Inc. and Offset Workers, Printing Pressmen & Assistants Union #78 of Los Angeles & Vicinity, affiliated with The International Printing Pressmen & Assistants Union of North America, AFL-CIO; Bookbinders' & Bindery Wom- en's Union Local #63, affiliated with The International Broth- erhood of Bookbinders, AFL-CIO; Los Angeles Typographical Union #174, affiliated with The International Typographical Union, AFL-CIO, Joint Petitioners. Case No. 31-RC-17 (for- merly f1-RC-9600). December 30,1965 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Barton W. Robertson. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Briefs have been filed by the Employer and by the Joint Petitioners. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the NationalLabor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in this case, the' Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Employer takes the position that the only appropriate unit is a production and maintenance unit of both Cal-Sample Printers, Inc., and Cal-Sample Service, Inc. The Joint Petitioners, however, contend that a departmental unit of all pressmen, compositors, and cutters in the printshop is also an appropriate one. 156 NLRB No. 48.