The Lion Knitting Mills Co.

THE LION KNITTING MILLS COMPANY APPENDIX Sol 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 interrogate or threaten our employees unlawfully concerning their union membership and activities. WE WILL Nor discourage membership in United Steelworkers of America, AFL-CIO, or in any other labor oigamzation, by discriminatorily discharging any of our employees, or in any other manner discriminating against any indi- vidual in regard to his hire or tenure of employment. WE WILL NOT in any other manner interfere with, restrain. or coerce our employees in the exercise of rights guaranteed them in Section 7 of the Act. WE WILL offer to Joe Gunter immediate and full reinstatement to his for- mer or substantially equivalent position, and make him whole for loss of pay suffered as a result of the disci mination against him, and if he is piesently serv- ing in the Armed Forces of the United States, WE WILL notify him of his rights to reemployment under applicable statutes All employees are free to become, remain, or refrain from becoming or remain- ing members of any labor organization. ATKINS SAW DIVISION OF BORG-WARNER CORPORATION, Employer. Dated------------------- By----------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 746 Fed- eral Office Building, 16 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. The Lion Knitting Mills Company and Cleveland Knit Goods Council of the International Ladies Garment Workers ' Union, AFL-CIO. Cases 8-CA.-34.26 and !004. August 31, 1966 DECISION AND ORDER On May 9, 1966, Trial Examiner Phil Sati nder issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning 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 Deci- sion. Thereafter the Respondent and the General Counsel filed excep- tions to the Trial Examiner's findings and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. 160 NLRB No. 55. 2 5 7-5 51-6 7-v o f 1 6 0- 5 2 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that, except as noted hereinafter, no preju- dicial error was committed. Therefore, all rulings except those modi- fied herein are hereby affirmed. The Board has considered the entire record in this case, including the Trial Examiner's Decision, and exceptions hereto, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner, with the following modifi- cations and additions. At the end of the hearing, the General Counsel moved to amend the complaint by adding an allegation that it statement made by Supervisor Watson to ex-employee Martin violated Section 8(a) (1) of the Act. The motion was denied by the Trial Examiner. Although Section 102.17 of the Board's Rules and Regulations, Section 8, as amended, makes granting of motions to amend discretionary with the Trial Examiner, where, as in this instance, the matters have been fully litigated at the hearing and the amendment conforms the com- plaint to the evidence adduced, the Trial Examiner's denial of such motion is in error 2 The record indicates that the Trial Examiner credited employee Martin's testimony that in mid-July 1965, which was within the 10(b) period in Case 8-CA-4004, Supervisor Watson told him that Hockenberry and Gothro would not be recalled to work because they were involved in the Union's organizing campaign. In our opinion, Supervisor Watson's statement to Martin was indicative of the Respondent's union animus, was coercive in nature, and inter- fered with the employees' rights guaranteed in Section 7 of the Act. We therefore find that this statement violated Section 8(a) (1) of the Act,3 and also provides additional grounds for setting aside the set- tlement agreement and reinstating the first unfair labor practice charge. We agree with the Trial Examiner that the violations committed by Respondent within the 10 (b) period of the second charge are sufficient to set aside the settlement agreement in Case 8-CA-3426.4 However, 1 Although the Respondent's no-solicitation rule is essentially similar to rules which have previously been found to be unlawful ( Young Spring and Wire Corporation , 1'38 NLRB 643; Southwire Company, 145 NLRB 1329), we accept the conclusion of the Trial Exam- iner that, because the rule was not enforced in any manner with regard to the substantial and open union campaign activities on the plant premises , the allegation that the rule was unlawfully adopted was not supported by the record and was therefore properly dismissed. In the particular circumstances of this case , we are satisfied that neither the Respondent nor its employees viewed the rule as prohibiting union campaign activities. 2 The Warren-Teed Products Co., 138 NLRB 131, footnote 1; Troy C. Friend, d/b/a Friend Lumber Company, 121 NLRB 62. 8 Berger Polishing, Inc., 147 NLRB 21. ' In these circumstances we do not reach the question of whether conduct occurring after a settlement agreement, but which is barred by the 10( b) period of a later charge, (1) warrants setting aside the settlement agreement , or (2) may be alleged and litigated as violations because they occurred after the charge in the case in which the settlement agreement was set aside THE LION KNITTING' MILLS COMPANY 803 contrary to the Trial Examiner, we deem it unnecessary to decide whether certain conduct which occurred during the interim period between the settlement agreement and the 10(b) period of the second charge violated the Act, as such findings would not affect the scope of our remedy. Accordingly, we do not adopt the Trial Examiner's findings that such conduct violated Section 8 (a) (1) of the Act. We are, however, relying on the Trial Examiner's findings with regard to these interim activities as background evidence shedding light on the Respondent's activities arising within the 10(b) period of the second charge. The Recommended Order of the Trial Examiner requires the respondent to offer Mildred Gothro full reinstatement to her former or a substantially equivalent position. However, subsequent to the hearing, the Respondent alleged by written affidavit that Gothro was recalled to report for work on January 27, 1966, at her former job of blind hemming. She reported for work on that day and worked to February 1, 1966, when she quit and accepted employment at Stand- ard Knitting Mills Company. If Gothro was offered reinstatement to her former job as the Respondent alleges, no additional offer of reinstatement need be made by the Respondent to comply with the Recommended Order of the Trial Examiner affirmed herein. [The Board adopted the Trial Examiner's Recommended Order as herein modified.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on February 20, 1964, and upon a charge filed September 2, 1965, by the Cleveland Knit Goods Council of the International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, the General Counsel on October 28, 1965, issued a consolidated complaint alleging that Lion Knitting Mills Company, herein the Respondent or the Company, has violated Section 8(a)(1) and (3 ) of the Act by engaging in certain acts of interference, restraint, and coer- cion, and by laying off employees Mildred Gothro and Joan Hockenberry and refusing to recall or reinstate these two employees to their former positions of employment because of their activity on behalf of the Union . Respondent in its answer denied the commission of the alleged unfair labor practices . A hearing was held before Trial Examiner Phil Saunders in Cleveland , Ohio, and all parties were represented by counsel . Oral argument was waived, but briefs were filed by the General Counsel and the Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is now, and has been at all times material herein , a corporation duly organized under and existing by virtue of the laws of the State of Ohio, with its principal office and place of business at Cleveland, Ohio. It is, and has been at all times material herein, engaged in the manufacture , sale, and distribution of wearing apparel. Annually, in the course and conduct of its business operations , Respondent ships finished goods and products valued in excess of $50,000 from its Cleveland, Ohio, 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant directly to points outside the State of Ohio. I find that Respondent is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events On October 14, 1963, the Union filed a representation petition (Case 8-RC- 5349), and this petition was then later withdrawn upon approval of the Regional Director. On February 20, 1964, as aforestated, the Union filed a charge in Case 8-CA-3426. It therein alleged violation of Section 8(a)(1) and (3) of the Act and the latter by the discriminatory discharge of employee Winifred Favorito. On April 14, 1964, a settlement agreement entered into by the parties in Case 8-CA- 3426 was approved by the Regional Director. This settlement agreement disposed of all unfair labor practices alleged in the above case and the Company also posted a notice, pursuant to the settlement agreement, that the Company would not unlawfully interrogate nor threaten its employees because of their activities for the Union. By letter dated June 26, 1964, the Regional Director notified and advised the Respondent that pursuant to the settlement agreement Case 8-CA-3432 had been closed conditioned upon the continued observance of the items in the settle- ment agreement. On September 2, 1965, the Union filed a charge in Case 8-CA- 4004 alleging 8(a)(1) and (3) violations including the refusal by the Company to recall from layoff Joan Hockenberry, Helen Wallington, and Mildred Gothro because of their union activities. On October 25, 1965, the Board's Regional Office advised the Company that the Board would issue a complaint in Case 8-CA-4004, and further advised that since the Respondent's conduct in this case was similar to the conduct which resulted in the settlement agreement referred to above-the terms in the agreement had not been complied with, and in accordance therewith the settlement agreement in Case 8-CA-3426 was being vacated and set aside and that the Regional Director was reinstating the 8(a) (1) charge in Case 8-CA-3426. On October 27, 1965, the Regional Director informed the Union and the Company that the 8(a)(3) charge in Case 8-CA-3426 involving Winifred Favorito was dis- missed for lack of sufficient evidence, and further advised that the portion of the charge in Case 8-CA-4004 as to Helen Wallington was also dismissed. Based on the above the general format of the consolidated complaint issued in this case shows the following: Paragraph 6 of the complaint covers the 6-month period prior to the filing of the charge in Case 8-CA-3426 (August 20, 1963, to February 20, 1964); paragraph 8 of the complaint covers the interim period from the settlement period until the start of the 10(b) period of Case 8-CA-4004 (April 14, 1964, to March 3, 1965); and paragraph 9 of the complaint covers the 6-month period prior to the filing of the charge in Case 8-CA-4004 (March 3 to September 2, 1965). Since the complaint alleges unlawful conduct after the settlement agreement as well as before it, the threshold question before me is the effect of the settlement agreement on the prior conduct. The general rule is well settled that independent or continuing violations of the Act constitute a breach of a settlement agreement and justify the Regional Director in setting aside that agreement and proceeding with a complaint which covers both presettlement and postsettlement violations. A Board proceeding is designed to protect the public interest and the Board may set aside a settlement agreement which was failed of its purpose. If, therefore, there was in this case substantial unlawful conduct following the settlement agreement, the Regional Director was wholly justified in vacating the agreement and in proceeding with a complaint which covers both presettlement and postsettlement conduct. I therefore first turn to a consideration of the postsettlement violations allegedly committed by the Respondent, and initially that conduct within the 10(b) period of the charge in Case 8-CA-4004-in which 6-month limitation goes back to March 3, 1965. THE LION KNITTING MILLS COMPANY 805 B. The postsettlement allegations within the 10(b) period of the second charge; findings and conclusions The 8(a)(1) allegations set forth that Respondent's supervisor, Frank Neuman, engaged in unlawful interrogation, and that the Company maintained an illegal no- solicitation rule.' The no-solicitation rule under attack was incorporated in a handbook issued by the Company on or about August 10, 1965. It reads as follows: Solicitations: We do not allow any solicitation in the mill unless it is specifically approved. We know that there are many worthy causes, but as a rule we give our full endorsement and cooperation only to the annual United Appeal. The General Counsel did not introduce any testimony pertaining to this allegation other than to introduce the handbook as an exhibit. However, the Respondent's general production manager, Raymond Kenyon, testified that the above no-solicitation clause only refers to the solicitation of money or funds, and stated without con- tradiction that the Company has never required that any employee or organization receive permission to solicit union membership or the like on the premises of the Company. The General Counsel argues that the Respondent adduced no evidence to show the existence of special circumstances which would make the rule necessary for the maintenance of production or discipline. However, in view of the undenied testimony by Kenyon and in light of the voluminous evidence in the record to the wide distribution and wearing of union novelties such as aprons, memo books, rain bonnets, scissors, sharpeners, and the like, in and around the Respondent's plant or mill on many and numerous occasions without any outward protests from the Com- pany-it cannot be successfully argued that the Respondent's solicitation rule was unlawfully adopted, and especially so when there are no instances of its enforcement in any manner subsequent to its promulgation. This allegation totally lacks evi- dentiary support, and in accordance therewith it is hereby dismissed. Respondent's supervisor, Frank Neuman, admitted on cross-examination that on or about April 1965, he had asked employee Ethel Martin if representatives of the Union had been to her home, and that on this occasion he also informed Martin to send such representatives to his home and that Neuman "would tell him something." Neuman further admitted that in September 1965, while discussing the Union with them, he had stated to some of the employees, "If they got a raise it wouldn't help them, because they would have to pay an initiation fee and their dues. The complaint also alleges that since March 3, and/or April 2, 1965, the Com- pany failed to recall Mildred Gothro from her layoff, and that since March 3 and subsequent dates in 1965, the Company has also refused and failed to recall Joan Hockenberry from her layoff status. At this stage in my Decision I deem it appro- priate to discuss these two alleged discriminatees as the dates involved in these allegations setting forth the time intervals when the Company unlawfully failed to reinstate or recall them fall within the specific 10(b) period of the second charge, as aforestated. It is well established that all similar alleged misconduct within such a period may be examined in ascertaining whether or not there has been a breach in a settlement agreement. Therefore, I need not limit my examination to merely independent 8(a)(1) allegations. In reaching my conclusions and findings with respect to Gothro and Hockenberry, I will also examine and point out some of the background events and testimony leading up to and surrounding the alleged refusal by the Company to recall these two employees on March 3, 1965, or a date subse- quent thereto.2 Although the Board may not, in making unfair labor practice find- 'The allegation in the complaint that Emily Vanza in August 19G5 warned applicants that they were subject to discharge if they signed union cards was dismissed for lack of evidence at the close of the General Counsel 's case There was no testimony given what- soever in support of this allegation , and the General Counsel so concedes 2 The General Counsel urges that the specific dates on which these discriminatees would have been employed , absent discrimination , to be as follows Hockenberry-Marcli 3, 196. 5, Gothro-April 2, 1965 It is contended that these are the dates upon which a preponder- ance of the credible evidence establishes that they first requested recall or rehire after their respective layoffs 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ings, give independent:'ahd corit'rolling-\weight) to events occurring. more than 6 months before the filing of the operative charge, evidence 'as 'to such events is nevertheless admissible and may be considered as background to explain ambiguous and equivocal conduct, including supplying the real reason where an untruthful reason is given for conduct within the 6-month period. Alumatic Windows, Inc., 131.NLRB 1210. Likewise, under the Supreme Court's decision in Local Lodge No. 1424, International Association of Machinists v. N.L.R.B. (Bryan Manufacturing Company), 362 U.S. 411, earlier events preceding the 6-month period preceding the charge "may be utilized to shed light on the true character of matters occurring within the limitations period." 3 Early events as background to these allegations show that in July 1963, Gothro contacted the Union to see what the Union could do about employees' complaints. Gothro signed a union authorization card in July 1963 and made house calls on other employees of the Respondent in attempts to also secure their signature on authorization cards. Gothro also gave out 30 to 40 cards to employees covering the period from September to December 1964, and also conducted a telephone cam- paign in February and March 1965, in her attempts to get additional card signa- tures from employees. In addition Gothro wore a union badge in the plant on several occasions as did many other employees, passed out union novelties in the plant up until December 1964, attended union meetings, and Gothro was president of the Union's organizing committee. On January 20, 1964, Hockenberry signed a union authorization card, and she wore a union badge in the plant. She also passed out union authorization cards to new employees as they were hired and did so from January 20, 1964, until February 15, 1965. Hockenberry further passed out union literature and novelties , attended union meetings , and made house calls on employ- ees in 1965 to secure additional support for the Union. In April of 1964 she was also elected secretary of the Union's organizing committee (Gothro was elected president, as aforestated, and Helen Wallington named vice president). In a brief summary of background evidence as to overall union activity, this rec- ord shows that the Union issued and passed out handbills on many occasions in 1963, 1964, and on seven occasions in 1965, up until October 7, 1965. At the same time union meetings were being held, and about seven such meetings were held subsequent to March 3, 1965. Union meetings were also held at various employees' homes including Gothro's in August 1965, and Hockenberry's on July 26 and August 19, 1965. In addition to union badges in the plant the Union also distributed aprons, bonnets, calendars , gummed labels, and other such novelties . This record is clear that the Union has engaged in -a prolonged organizing campaign of varied intensity, and the Gothro, the original instigator, engaged in extensive activity. The record is clear that Hockenberry also engaged in extensive activity for the Union, and the Respondent does not in any way deny knowledge of their union activity. The record further shows that the Company permitted the distribution of litera- ture and in-plant wearing of the various union novelties and badges .4 During 1963 and 1964 the Company distributed or posted a total of some six letters or bulletins (Respondent's Exhibit 8 through 13-dating from July 26, 1963, to April 17, 1964). Exhibits 8 through 12 were distributed to employees during 1963, long before the charges in Case 8-CA-3426 were filed. Exhibit 13 was distributed to employees on April 17, 1964, immediately after execution of the settlement agreement . It is well established by the Board that the mere posting of an informal notice does not con- stitute a sufficient disavowal of unfair labor practices or furnish adequate assurances to employees that they are free to become or remain members of a union without reprisals where there are subsequent unfair labor practices committed after the execution of the settlement agreement and the posting of a notice to all employees. It is the position of General Counsel that neither the posting of the notice to all employees nor the prior distribution of literature constituted an effective repudiation or disavowal of any unfair labor practices committed by Respondent's supervisors and agents. Several cases cited by the General Counsel in his brief support this position. $ In Northern California District Council of Hodcarriers and Common Laborers of America (Joseph's Landscaping Ser ), 154 NLRB 1384, the Board overruled Larrance Tank Corporation, 94 NLRB 352, to the extent that the rule in this case was a bar to the use of presettlement conduct as background evidence establishing the motive or object of a respondent in its postsettlement activities. 4 The Company also made its own badges with the letters "LKM" on them , and these company badges were worn by certain employees on various occasions. THE LION KNITTING MILLS COMPANY 807 Gothro has been employed by the Company as a blind hemmer in the sewing department since 1961. On December 28, 1964, she was given a voluntary layoff by her -supervisor, Helen - Watson. Gothro testifiedi that on January 4, 1965, she con-. tacted the Company inquiring about her return to work, but was told that there was not much work to do and that she should stay home for "a couple of weeks." Gothro testified that in January, February, and March 1965 , she contacted the Com- pany every 2 or 3 weeks and in April 1965, contacted the Company on four occa- sions about her return to work. Gothro stated that on April 28, 1965, she contacted the Respondent's general production manager, Kenyon , and inquired of him about the Company taking her back as a stitcher as she had seen the Respondent's want-ads in a local paper advertising for such help . Gothro testified that Kenyon then informed her that she was going to be called back and would do blind hemming again. Gothro testified that she contacted the Company on two occasions in Septem- ber 1965, and again inquired if she could come back to work as a stitcher .5 On or about November 22, 1965, Gothro was recalled by the Company and worked until December 2, 1965, doing blind hemming on Army hoods. Gothro received a reduced rate of pay during this period , and was informed that she would be laid off when the hemming on the hoods was completed . December 2, 1965, was the last day she worked for the Company. Gothro also testified that since December 2, 1965, she contacted, or tried to contact, the Company on six different occasions concerning her return to work. The Company contends in its brief that after Gothro left, on December 28, 1964, there was no need for any additional full-time operators on blind hemming. Supervisor Helen Watson testified that Gothro would always refuse to do other work or jobs in the sewing department , and that she would only do blind hemming.6 Watson testified that when Gothro did not return to her job on January 4, 1965, she had the personnel office contact Gothro, but that she had no knowledge as to the results of this call . Watson also stated that Gothro did not call her about returning to work until April 1965, and that at this time there was no blind hemming to do. Watson testified that Gothro was called in March 1965 but informed the Company that her husband was sick. Watson admitted that in March 1965, her department had a "spurt" of blind hemming to do, and that she also considered calling Gothro back in April and May 1965, but that production manager , Kenyon, informed Watson that there was not enough work available. This record shows that Nettie DiPinto, Mildred Gothro, and Anna Raus were the regular first-shift blind hemmers at the time Gothro was laid off. Frances Baxter and Mary Johnson were loopers , a skilled operation which is only required sporadically. Baxter and Johnson were also assigned other duties in the mill and they both do odd jobs and repair work in a number of classifications-tacking, finishing, and clipping among others in addition to blind hemming . Kenyon stated that Baxter got a guarantee from him that she would be given steady work before she accepted a recall, and as a result she began to be trained to do every job in the plant and worked through the various jobs in the mill and eventually got to blind hemming in early 1965. Janet Kobus was a stitcher who, was willing to learn and do other operations , and was being trained to be a utility operator. She started on seaming in 1964, and then in March or April 1965, she had worked around to blind hemming, according to Kenyon . Maria Munoz was put to work operating a new machine (a union special stitcher). Kenyon stated that since this work is a special skill he told the supervisor to keep Munoz at "all costs," and to give her some work she could do. The Company then decided, according to Kenyon , to put Munoz on blind hem- ming about the middle of 1965 since the two machines are right across the aisle from each other and blind hemming was the next operation so it would be con- venient for her to split her time. Joan Hockenberry started working for the Company in 1957 and spent all her time in recent years on one type of buttonhole machine ( a Baby Reese). Hocken- berry testified that she reported to work on January 4, 1965, but was unable to finish out the day, working approximately 2 hours before going on sick leave. She was awarded benefits under the weekly indemnity sickness provisions of the group accident and sickness insurance policy (Joint Exhibit 6) between Respondent and 6 Gothro had prior experience as a stitcher and after her layoff obtained employment elsewhere as a stitcher and part -time blind hemmer 9 The record shows , and the Company readily admits, that Gothro was a very competent blind hemmer. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Travelers Insurance Company. Joint Exhibit 7 indicates Respondent's person- nel manager certified to Travelers that illness was the reason Hockenberry stopped working. Hockenberry testified that upon being released by her physician to return to work effective February 15, she contacted Respondent's personnel manager on February 12, 1965, and was instructed to report for work the next Monday. She did so, but because of lack of work went home early. Immediately upon arriving home she received a telephone call from the personnel manager who advised her she was being laid off for lack of work. Hockenberry testified that on March 3, 1965, she called the Company and was then informed that there would be no work for proba- bly 4 or 5 weeks. Hockenberry entered the hospital for an operation on or about March 30, 1965, and was not released for any kind of work until May 15, 1965. Hockenberry stated that she called the Company on two occasions in May 1965, and was told there was no work available. Hockenberry testified that she also called the Company on June 15, 1965, and on August 25, 1965, but was told there was no work, and that on September 15, 1965, she called and asked if she could return as a stitcher as she had noticed company want-ads for stitching help. Hockenberry stated that she was then informed that the mill needed highly experienced stitchers and they had no such work for her.7 Hockenberry admitted that she objected to working on the Gimp buttonhole machine, but that she would do different jobs in the mill when there was no buttonhole work available. Supervisor of the Respondent's hand-finishing department, Betty Wolf, testified that Hockenberry refused at all times to work on the Gimp buttonhole machine, and would not do any other work other than buttonhole on her regular machine .8 Wolf stated that she did not discharge Hockenberry on January 4, 1965, but that Hockenbeiry "just walked out" on her instead of working on the Gimp machine. Wolf also testified that at no time did she ever recommend that Hockenberry be terminated or discharged, but that if there was enough work Wolf would call her back. This record shows that Baumgardner replaced Hockenberry as the full-time buttonholer on January 4, 1965. Jean Myza did some buttonholing off and on for 3 or 4 weeks but then went on repair work. Mary Borowiak had worked on button- holing along with Hockenberry and Baumgardner. Production Manager Kenyon testified that Supervisor Betty Wolf reported to him that Hockenberry refused to operate the Gimp buttonhole machine on January 4, 1965, and that she had made Baumgardner the new number one buttonhole operator. Kenyon stated that no one authorized Hockenberry's rehire on February 15, 1965, and that he was "astonished" to see her working on that date and so he told Helen Watson to send her right home and to get "rid of her fast." Kenyon related that he had also encountered past difficulties in trying to get Hockenberry to "switch over" and do other jobs, and that because of this reason it was the "feeling" of the Com- pany that Hockenberry does not want to work on buttonholes unless it is steady work of one kind, and that she is not interested in becoming -a "utility" operator which he had continually endeavored to develop among many of the employees. Conclusions The Respondent's predisposition to discriminate in the tenure of Gothro because of her affiliation with or interest in the Union is continually evidenced throughout this record. Gothro was a highly satisfactory employee and admittedly a most com- petent employee and blind hemmer, and, as this record shows, would still be work- ing for the Company on recall had she not engaged in activity for the Union and became well known as the instigator or leader in this movement. The only question before me is whether or not there is sufficient evidence to show that the Company unlawfully refused to recall Gothro after March 3, 1965, the cutoff date within the 6 months' limitation as aforestated.9 7 Hockenberry was initially employed as a stitcher with the Company 8It is admitted by the Company that Hockenberry was an extremely fast and highly paid pieceworker and its number A-1 buttonhole operator. However, the Company contends in its brief that there was no need for any additional full-time buttonhole operator after IIockenberry left. It is admitted that the Company recalls laid-off employees depending on the work available and does so without any regard for seniority The slow season for the Company normally starts in December of each year, and at this time many employees are generally laid off There is no contention or allegation that the initial layoffs of,Gothro and Hocken- berry were discriminatory. THE LION KNITTING MILLS COMPANY 809 While Respondent claims there was little blind hemming work in March or April 1965, it broke in a new blind hemmer, Janet Kobus, in late March 1965, who continued on blind hemming until January 1966. Respondent also trained Baxter on blind hemming at this time, and Kenyon admitted there were no pan- time blind hemmers employed at the time of Gothro's layoff in December of 1964. It was stipulated that on or about August 16, 1965, Maria Monza, although hired as a stitcher, was placed immediately on blind hemming. Kenyon offered testi- mony concerning a new process that Respondent was developing to justify Monza being put on blind hemming immediately upon her hire The testimony concerning the supposed new operation on machine is vague and Kenyon fails to explain how Monza could have possibly known how to perform this special operation which Respondent claims was developed in their own plant prior to beginning work with Respondent Obviously, Monza could have had no previous experience on this operation if it was a new technique which Respondent was developing on its own. Supervisor Watson admitted that in March and April 1965, her department had a good deal of repair work in blind hemming, and also admitted that in April 1965, she asked Kenyon when he was going to call the "girls" back. This is certainly indicative of the fact that subsequent to March 3, 1965, the Company did have considerable work in its blind hemming operations. The record shows that Gothro also initially requested employment on recall as a stitcher on April 20, 1965, and this record shows that she had considerable experience in this classification. 10 The Respondent's contention that she lacked experience is clearly without merit, and dropping the word "experience" in some of their help-wanted ads, is further evidence that this contention is nothing but a pretext. It might be argued that the recall of Gothro on or about November 22, 1965, until December 2, 1965, is evidence showing Respondent's lack of discriminatory motivation. However, considering and recognizing the testimony of Gothro we see that she worked during this interval at reduced wages and was told that she would be laid off when the hemming on the Army hoods was completed Gothro even recognized the difficult situation she was in after Kenyon talked to her about the reduced wages, and Gothro then told Helen Watson that she did not feel like stay- ing because she thought Kenyon was "making a fool" out of her. In other aspects her recall shows that the Company had no real complaints in its contention that Gothro would not do other jobs for management must have condoned such alleged shortcomings by recalling her in November. It also pointed out that this temporary recall for the announced duration of about 10 days followed the issuance of the complaint in this case. In the final analysis the short-lived recall cannot detract from the overwhelming pattern of discrimination against Gothro. A brief summary in conclusion shows that Gothro was the leader in the Union's effort to organize ; that her leadership was admittedly well known; that she was an exceptionally competent employee; that subsequent to March 3, 1965, she made several calls to the Company asking for her job back, and that on April 20 and 28, 1965, Gothro asked that she be hired as a stitcher after observing that the Company had run help-wanted ads seeking such employees; and that the Com- pany had sufficient blind hemming to warrant her recall in March or April 1965, when such work was assigned to less qualified employees. As to Joan Hockenberry it appears to me that this is another situation where we have a highly skilled worker refused employment or recall because of her efforts on behalf of the Union. Manager Kenyon stated that Hockenberry's status was in "limbo," and that she would not be recalled by the Company unless she was the last person available. In support of its actions the Company also produced some testimony of alleged past and current misconduct on the part of Hockenberry. Ken- yon testified that on or about January 6, 1965, Supervisor Wolf advised him that Hockenberry had (on January 4) refused to work on the Gimp buttonhole machine and had created a scene. While Wolf testified that Hockenberry refused to work on the Gimp machine, she did not testify that Hockenberry created a scene 10 Exhibits and stipulations in this record show that between April and September 1965, Respondent ran numerous help-wanted ads for experienced stitchers in the major Cleieland newspapers In June and July 1965, Respondent ran help-wanted ads in these newspapers for stitchers, not specifying that applicants had to be experienced From May to October 1965, Respondent posted on the front of its building a large help-wanted sign for ex- perienced stitchers As shown by Joint Exhibit 9, Respondent, during calendar year 1965, hired in excess of 100 stitchers, most of whom did not remain long 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in front of the other employees. Wolf was vague in her testimony concerning Hockenberry's supposed refusal on other occasions to do other work, and further testified that she did not consider these refusals to be serious. Just as vague was her testimony concerning Hockenberry's supposed refusal to do work on odd lots. These refusals were never reported to anyone from management. Wolf claims that Hockenberry was good at her job as a buttonhole operator because of the way in which she set up her work, but then stated and admitted that Hockenberry was never reprimanded for this nor that it was reported to anyone from management. The evidence I rely on shows that Hockenberry went on sick leave on January 4, 1965, returning to work on February 15, 1965, when she was sent home early because of lack of work. Later that day, Respondent laid her off for lack of work. She had no cause at this time to suspect this layoff might be discriminatorily moti- vated. Respondent claims that Hockenberry returned to work without being told to do so, but failed to call Personnel Manager Czalkiewicz to deny Hockenberry's testimony that she was recalled. Respondent's story is that Hockenberry came in on her own and because her regular supervisor, Wolf, was absent, was able to work most of the day before being discovered by Kenyon, who had her sent home by Watson. Hockenberry testified that while working at her machine on the morn- ing of February 15, she looked up to see Kenyon looking at her. Further, although Wolf denies being at work on February 15, Hockenberry testified in detail to con- versations with her. In support of Hockenberry's testimony is that of employees Gomer and Pierce who testified to seeing Wolf at work on February 15 and having conversations with her. The record is clear that employee Baumgardner was made number 1 buttonhole operator on January 4, 1965, to replace Hockenberry and, therefore, the Respond- ent's argument and contention that there was no need for a full-time buttonhole operator after January 4, 1965, is without any merit. Supervisor Wolf also admitted that employee Dean Mysza was put on bottonhole operations in late August or early September 1965. This record shows that on and since March 3, 1965, Hockenberry made several contacts with the Company in an effort to return; that there were but- tonhole operations to be done on March 3 and subsequent thereto; that Hocken- berry had experience as a stitcher and the Company was hiring such people at the time she requested work on a stitcher (September 1965); that whatever shortcom- ings she had they were not of sufficient seriousness to warrant any recent repri- mands; and the constant acknowledgment and admissions throughout the record that Hockenberry was the Respondent's most skilled and fastest buttonhole oper- ator. When all these plus factors are matched with the union efforts on behalf of Hockenberry, as aforestated, it becomes obvious that union motivation was the real reason in the Respondent's refusal to recall her. To further substantiate the General Counsel's case, former employee Jess Martin testified that he had three conversations with Supervisor Helen Watson about the recalling of Hockenberry and Gothro. Martin stated that in the first two conver- sations he asked Watson when she was going to call them back as there was plenty of work to do. Watson replied that it was because of lack of work." Martin testi- fied that in the middle of July 1965, he again asked Watson when the Company was going to recall Gothro and Hockenberry, and that in reply to this inquiry Watson then informed him that she had talked to Kenyon and the Company was not going to recall them "because they was involved in the organizing campaign of the Union." The Respondent attempted to destroy the testimony of Martin in getting his admissions that he had been talked to by Kenyon about the smelling of liquor on his person, and that in June 1965, he was picked up for driving while "As noted herein each time that Gothro or Hockenberry requested recall Respondent advised that there was no work available. Further, Respondent adduced some vague testi- mony that work was slack in the buttonhole and blind hemming classifications during 1965. The record does not support this assertion . However, even if work were slack, this is no defense to Respondent 's actions. As pointed out by the General Counsel an employer must consider a request for employment or recall in a lawful, nondiscriminatory manner, and the question of whether an application has been given such consideration does not depend on the availability of a job at the time the application is made. The employer who fails to consider a request for employment for reasons proscribed by the Act commits an unfair labor practice and the question of the job availability is relevant only with respect to the employer's backpay obligation , and the fact that the employee does not reapply when jobs become available does not affect this conclusion. Such further application would be a futile effort. THE LION KNITTING MILLS COMPANY 811 intoxicated. However, Watson admitted that she had two or three conversations with Martin as to when Gothro and Hockenberry would be recalled, but denied telling him that they would not be recalled because of their union activity. Upon my observation and the demeanor of Martin while testifying before me-coupled with the aforementioned events, circumstances, and testimony-I have concluded that Martin was a reliable witness. In summary, I find that the Company has discriminatorily refused to rehire or recall Hockenberry (since March 3, 1965), and Gothro (since April 2, 1965), because of their activities on behalf of the Union and that unlawful motivation is shown by: (1) the continuation of functions and services formerly given by these two employees; (2) the admitted high skills and long satisfactory services of both; (3) the continual training and employment of inexperienced employees at the jobs [in which] these two employees had much more experience; (4) Respondent's im- plausible explanations as to the status of Hockenberry; (5) the failure of [giving] any serious reprimands or warnings to either; (6) the purchase of help-wanted advertising subsequent to March 3, 1965, and the hire of inexperienced employees for jobs in which Hockenberry and Gothro were experienced, while at the same time advising and informing them there was no work available when they requested recall employ- ment; (7) Supervisor Watson's statement to Martin that Respondent was not going to recall Hockenberry or Gothro as Kenyon told her Respondent would not call them back because they were involved in the organizing campaign of the Union; (8) recalling Gothro for about 10 days at reduced wages and with notice that she would again be laid off; (9) and the overall lack of any understandable and defi- nite reasons for its refusal to recall these two employees coupled with the Respond- ent's fluctuating defenses. In view of all the foregoing, I find that Respondent has, since the execution of the settlement agreement on April 14, 1964, and within the 6 months' limitation of the 10(b) period of the second charge, interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) and (3) of the Act by Neuman's interrogation of employee Ethel Martin, and by discriminatorily refusing to recall Gothro and Hockenberry, as aforestated. I conclude, therefore, that the question of the legality of Respondent's presettlement conduct is before me, and that the Regional Director properly set aside the settlement and reinstated the charge filed by the Union on February 20, 1964. I now turn to a consideration of that conduct.i2 is In view of my findings sustaining adequate violations within the 10 (b) period of the second charge sufficient to set aside the settlement agreement, I need not decide whether Respondent's additional violations which I find infra (within the interim period from the settlement agreement until the start of the 10(b) period of the second charge) also con- stituted a breach of the agreement. The argument is made that only incidents within the 10(b) period of the second charge may be considered in determining whether there was sufficient evidence to warrant setting aside the agreement. While this contention is not entirely free from doubt since there are apparently no cases establishing the 10(b) date of the second charge as the controlling date in determining whether there are sufficient post- settlement violations to warrant setting aside a settlement . In the instant case the Regional Director approved a settlement agreement providing for the posting of a notice to all em- ployees remedying presettlement conduct and the notice was posted April 22, 1964. On June 26, 1964, Respondent was advised by letter (Joint Exhibit 2) that the case had been closed as adjusted and that, "this action is conditioned upon continued observance of the terms of the agreement." This conditional closing conformed with the settlement (Joint Exhibit 1) provision that "contingent upon compliance with the terms and provisions hereof, no further action shall be taken- in the above case" As will be shown by the testi- mony of witnesses for the General Counsel , immediately after the case was closed as adjusted, Respondent not only resumed, but actually intensified, its unlawful 8(a) (1) conduct. Furthermore, as will be set forth herein, during the middle and latter months of 1964 there were many more incidents of unlawful statements. Such extensive 8(a) (1) conduct could hardly be said to be "continued observance of the terms of the agreement." Thus, even assuming here, arguendo, that there was insufficient evidence in the 10(b) pe- riod of the second charge to set aside the settlement, it would appear to me that under such circumstances the Board could consider the violations in the interim period Guerdon Industries, Inc., 127 NLRB 810; Superior Derrick Corporation, 126 NLRB 188. To sustain the Respondent's argument in this phase of the case as suggested by the General Counsel, would be tantamount to advising the Company that they could continue violating the Act with impunity after a settlement agreement unless another charge is filed within 6 months. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C Presettlement 8(a) (1) conduct from August 20, 1963, to April 14, 1964 (between the 10(b), date of the first charge and its settlement) During this interval the credited testimony in the record shows the following: On or about January 14, 1964, Winifred Favorito and another employee were dis- cussing the union meeting which Favorito held at her home, and that on this occa- sion Supervisor Eleanor Williams then told them that if they brought the Union into the mill there would be danger of employees losing their vacation and Christ- mas bonus benefits, and Williams also told them that if the Union organized "we girls who were organizing it would be the first to go." In the early part of 1964, the Respondent's vice president, Norbert Hibshman, was seated in the mill cafeteria with another man at a table next to employees Mildred Reese and Helen Walling- ton, and on this occasion stated in a voice loud enough for these two employees to hear, "Well, I will close the doors before I will let the Union get in here." In August or September 1963, Supervisor Betty Wolf asked employee Charlotte Pierce if any of the employees talked or said anything about the Union, and in Octo- ber 1963, Supervisor Helen Watson told employees Pierce and Hockenberry that if they were against the Union they should talk to other employees and try "to stop it." In February 1964, Watson inquired of employee Janet Kobus if other employees were "bothering" them about the Union. Between January and March 1964, Respondent's chairman of the board, H. V. Ensten, inquired of employee Helen Wallington if everything was "quiet upstairs," and then informed Wallington that if she was starting "any trouble" again the Company would not be as lenient with employees as before, and that they were "going to get tough." In October 1963, Supervisor Watson asked Hockenberry if she knew who the "girls" were who were talking about the Union in the mill, and on the same occasion inquired as to the names of employees trying to organize the Union. On or about January 21, Kenyon informed Hockenberry that if the Union were successful in its organiza- tional efforts she would have to take a pay cut of about $1 an hour. D. 8(a)(1) conduct from April 14, 1964, to March 3, 1965 (after settlement of the first charge to the 10(b) of the second charge) During this approximate 12-month period the credited testimony shows the following: In July 1964, Supervisor Neuman told employee Jeweletta Sterritt that a man from the Union would be visiting her home and advised Sterritt to "slam the door in his face." Neuman also told Sterritt at this time that the Union had been trying to organize the mill for some time-that the Union was not going to get in, and that the employee would not gain anything by joining a union. A week or so following this incident Neuman informed Sterritt that he had heard about the union representative calling on her and then told Sterritt that anyone who joined the Union was "crazy," and that the next time a man from the Union called on her to send him to his house and that he (Neuman) would "take care of him " In October or November 1964, Neuman again told employees that the Union would never "get in," and that during this same period of time informed employee Ethel Martin that any employee who joined the Union "would be finished." In November 1964, Supervisor Mary Wozny (now Brangel) told employee Rita DiSorbo that the office would like to know what was being said at the union meet- ing. After checking with Kenyon, Wozny then told DiSorbo to forget it because the Company already had one girl "spying" on the Union. In October 1964, DiSorbo jokingly informed Supervisors Wolf and Watson that she was the one who had started the Union, and that Wolf then told DiSorbo not to say such things because someone would report her to the office and she would "get in trouble." On fre- quent occasions during this time period Foreman Briton Hampton also informed DiSorbo that the Company knew every employee attending the union meetings and belonging to the Union, and that all such employees "would get fired." In the spring of 1964 Watson inquired of Ida Richards if she had heard anything about the Union, and then told Richards that she had "better be careful." In June or July 1964, Supervisor Watson inquired of Susie Hufstetler whether or not anyone had been "pestering" the girls about the Union, and then informed Hufstetler that if anyone was doing so she could always go to the office and "squeal." In Novem- ber 1964, Watson told Gothro that it had been reported to her that Gothro was talking on the stairs at the mill with employees about the Union. Watson then told Gothro to stop this practice and that if she did not she (Watson) would have to get rid of her. THE LION KNITTING MILLS COMPANY 813 Conclusions Respecting Respondent's 8(a)(1) Conduct In establishing the credited testimony of the witnesses for the General Counsel I have considered, among many other factors, the following- Mary Wozny admit- ted in her testimony some discussion between herself and DiSorbo about DiSorbo going to a union meeting. Supervisor Briton Hampton admitted that on occasions he discussed the Union with employees including DiSorbo, and admitted that in 1963 he had also attended a union meeting. Supervisor Neuman testified that in 1964 he talked about the Union with Ethel Martin a few times. As aforestated, Neuman also admitted asking Martin if a union representative had called at her house. Supervisor Helen Watson admitted that she asked Mildred Reese if Reese thought the Union would get in, admitted that she had also inquired of Janet Kobus and another employee if they had been bothered by the Union, and admit- ted a conversation with Gothro mentioning that she (Watson) had at one time worked under a union contract. Betty Wolfe admitted in her testimony that she inquired of Charlotte Pierce as to why she was wearing the union badge. Also on numerous occasions several witnesses for the Company admitted that statements in their affidavits were incorrect, and, furthermore, there is other inconsistent tes- timony in this record by these witnesses when comparisons are made as to what they testified to on direct examination and their contradictions made under cross- examination. Cases of this nature which ultimately turn on credibility of the wit- nesses impose a particularly heavy responsibility on the trier of fact, be he Trial Examiner, judge, or jury, who observes the demeanor of the witnesses on the stand. In the total aspects of this case the witnesses called by the General Counsel testi- fied in an extremely forthright manner. The testimony of the Respondent's wit- nesses was for the most merely a general denial of the several statements attributed to them. It is well settled by the Board and courts that in determining whether an employ- er's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(1), the test is not the employer's intent or motive but whether the conduct is reasonably calculated, or tends, to interfere with the free exercise of the rights guaranteed by the Act. If the setting, the conditions, the methods, or other probative context can be appraised, in reasonable probability, as having the effect of restraining or coercing the employees in the exercise of such rights, then his activity on the part of the employer is violative of this section of the Act. N.L.R.B. v. Protein Blenders, Inc., 215 F.2d 749, 750 (C.A. 8). This is especially true in the insecure organizational period, as here, where the employer can make some seemingly innocent question or remarks suggest his displeasure with employ- ees who support the Union. The foregoing instances that have been credibly attrib- uted to the Respondent include unlawful interrogations to ascertain employees in the Union, interrogations and inquiries into union affiliations, attitudes, activities, and sympathies of employees, warnings that the Company would reduce wages and that employees would lose vacation and Christmas benefits, threatening dis- charges, a shutdown or closing of the mill, and other disciplinary measures, and creating the impression of surveillance because of union activities. This conduct on the part of the Respondent constitutes violations of Section 8(a)(1) of the Act, and I so find. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with its business operations described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirm- ative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully refused to recall Joan Hocken- berry on March 3, 1965, and Mildred Gothro on April 2, 1965, in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that the Respondent offer 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD each of these individuals immediate and full reinstatement to their former or sub- stantially equivalent position, without prejudice to seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of discrimination against them by payment to them of a sum each would have earned from the date they requested reemployment less interim earnings, and that the said loss of pay be computed in accordance with the formula and method pre- scribed by the Board in F. W. Woolworth Company, 90 NLRB 289, to which shall be added interest at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Hearing Co, 138 NLRB 716. I shall also recommend that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records, and reports, and all other records and reports necessary to analyze the amount of backpay due and the right to reinstatement under the terms of these recommendations. In order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend that the Respondent cease and desist from, in any manner, infringing on the rights guaranteed in that section. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discriminating in regard to the hire and tenure of employment of Joan Hockenberry and Mildred Gothro thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By further engaging in the conduct set forth herein the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the Lion Knitting Mills Company, its officers, agents , successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership of any of its employees in Cleveland Knit Goods Council of the International Ladies' Garment Workers' Union, AFL-CIO, or .any other labor organization of its employees , by discharging or in any other manner discriminating against any individual in regard to hire, tenure of employment, or any term or condition of employment, except as authorized by Section 8(a)(3) of the Act. (b) Interrogating its employees as to their union activities, attitudes, affiliations, and sympathies. (c) Warning its employees with loss of benefits and reduction of wages because of their union activities. (d) Threatening its employees with discharge, closing of the mill , and other disciplinary measures. (e) Creating the impressions that the employees' union activities are under surveillance. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Joan Hockenberry and Mildred Gothro, full reinstatement to their former or a substantially equivalent position without prejudice to their seniority or other rights or privileges, and make them whole, in the manner set forth in "The Remedy." THE LION KNITTING MILLS COMPANY 815 (b) Post at its mill and offices at Cleveland, Ohio, copies of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director of Region 8, after being signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof and main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days of the date of the receipt of this Decision, what steps it has taken to comply herewith.14 13 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 14 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 8, 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Cleveland Knit Goods Council of the International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate any of our employ- ees, or in any manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT interrogate employees concerning their or other employees' interest in, and intentions with respect to, joining the above-named or any other labor organization, in a manner constituting interference, restraint, or coercion violative of Section 8(a)(1) of the Act. WE WILL NOT interrogate employees in their union attitudes, affiliations, and sympathies. WE WILL NOT warn employees with loss of any benefits and reduction of wages because of their union activities. WE WILL NOT threaten employees with discharge, closing of the mill, and any other disciplinary measures because of their union activities. WE WILL NOT engage in surveillance or create the impressions of surveil- lance of union activities. 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 labor organizations, to join or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. WE WILL offer to Joan Hockenberry and Mildred Gothro immediate and full reinstatement to their former or substantially equivalent positions with- out prejudice to seniority and other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named Union, or any other labor organization. THE LION KNITTING MILLS COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE.-Notify the above-named employees if 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. This notice must remain posted for 60 consecutive days from the date of post- ing, 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, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621- 4465. Family Bargain Centers, Inc. and Local 1687, Retail Store Em- ployees Union, Retail Clerks International Association, AFL- CIO. Case 3-CA-261. August 31, 1966 DECISION AND ORDER On April 26, 1966, Trial Examiner Jerry B. Stone issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom, and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recom- mended disnussal of those allegations. Thereafter, the General Coun- sel and Charging Party each filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent filed cross- exceptions and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. I The Trial Examiner found that Respondent, by the conduct of Mickelson on or about the middle of April and on April 19, 1965, bargained directly with employees and requested and encouraged them to deal directly with it rather than seek representation through the Union, and that such conduct in connection with the promises of benefits and the granting of benefits constituted conduct violative of Section 8(a) (1) of the Act In affirming this finding we disavow any possible implication that direct dealing or bargaining with em- ployees who are not represented by a collective-bargaining representative is necessarily violative of Section 8(a) (1) of the Act However, where such direct dealing is undertaken for the purpose of encouraging employees to reject union representation and involves the promising and granting of benefits, as herein, we agree with the Trial Examiner that it restrains, coerces, and interferes with employees' exercise of Section 7 rights and therefore violates Section 8(a)(1) of the Act. 160 NLRB No. 66.