Hanes Corp.

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hanes Hosiery Division , Hanes Corporation Service Act and the Universal Military Training and and Textile Workers Union of America , Service Act, as amended, after discharge from the AFL-CIO. Case 11-CA-2913. Armed Forces. April 18, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On November 21, 1966, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 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. 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order bf the Trial Examiner and hereby orders that the Respondent, Hanes Hosiery Division, Hanes Corporation, Winston-Salem, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Add the following as paragraph 2(b) and r_eletter those subsequent thereto consecutively: "(b) 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." 2. Add the following immediately below the signa- ture line at the bottom of the Appendix attached to the Trial Examiner's Decision: Note: We will 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 164 NLRB No. 9 Respondent's exceptions to the Tnal Examiner's Decision are in large part directed to the credibility resolutions of the Trial Examiner. We will not overrule the Trial Examiner's resolutions as to credibility unless a clear preponderance of all the relevant evidence convinces us that they are incorrect. Such a finding is not warranted here Standard Dry Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C.A 3) In fn 9 of his Decision, the Trial Examiner erroneously stated that Foreman Livengood did not testify However, we have fully considered Livengood's testimony and find it insufficient to disturb the Trial Examiner's conclusions TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner : Upon a charge duly filed on November 24, 1965, by Textile Workers Union of America, AFL-CIO,' hereinafter referred to as the Union or Charging Party, the General Counsel of the National Labor Relations Board , hereinafter called the General Counsel2 and the Board , respectively, by the Regional Director for Region 11, Winston -Salem, North Carolina, issued its complaint dated January 28, 1966, against Hanes Hosiery Division , Hanes Corporation, hereinafter called the Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Labor-Management Relations Act , 1947, as amended , herein called the Act. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice , a hearing thereon was held in Winston-Salem , North Carolina, on May 17, 18, 19, and 20 and on July 25, 26 , 27, 28 , 29, and 30, 1966 , before me. All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce, examine , and cross-examine witnesses, and to introduce evidence material and pertinent to the issues. At the conclusion of the hearing, oral argument was wavied. Briefs were due on August 30, 1966, but none were received. Upon the entire record in the case and from his observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and I find that Hanes Hosiery Division, Hanes Corporation, is a North Carolina corporation engaged in the manufacture of hosiery products at its plant on Hanes Mill Road, Winston- Salem, North Carolina, which plant is the only one involved in these proceedings. During the past 12 months, which period is representative of all times material herein, Respondent I Without objection the name of the Charging Union was so amended at the hearing 2 This term specifically includes the attorney appearing for the General Counsel at the hearing HANES HOSIERY DIV. 41 produced, sold, and caused to be transported outside the State of North Carolina from its Hanes Mill Road plant, Winston-Salem, North Carolina, goods valued in excess of $50,000. During the same period of time, Respondent caused goods and raw materials valued in excess of $50,000 to be purchased and shipped directly to its Hanes Mill Road plant, Winston-Salem, North Carolina, from points and places outside the State of North Carolina. Accordingly, I find that Respondent at all times material herein was engaged in commerce within the meaning of the Act. II. THE UNION INVOLVED Textile Workers Union of America, AFL-CIO, is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The Discharges 1. Nora Infinger, Betty Logan, and Jean Settle a. The facts Nora (Sue) Infinger began her employment with Respondent in November 1959; Betty Logan in May 1959; and Jean Settle in September 1956. Their employment continued until August 13, 1965, when Respondent discharged each of them under circumstances to be described hereafter. Infinger and Settle always made the production "honor roll"; i.e., their weekly earnings always far exceeded the Federal minimum wage requirement. Logan was not quite so proficient but at least always made "production"; i.e., always produced enough to earn the minimum wage without the necessity of any so-called "makeup pay" from Respondent. Infinger and Logan, inseparable friends, signed union authorization cards in April 1964, but did not become active on behalf of the Union until each became a member of the employee' s organizing committee for the looping department at a union meeting held on August 4, 1965. Respondent was so notified by letter from the Union. Thereafter Infinger and Logan actively talked on behalf of the Union and solicited other employees to execute union authorization cards on the Union's behalf. Settle, a good friend of Infinger and Logan, apparently engaged in little or no union activity until August 13, 1965. On the evening of August 12 Infinger and Logan distributed union leaflets at the plant gates in company with Roxie Tesh, Hazel Boles, Maxine Holcomb, Lewell Gentry, and others. This distribution was made openly and notoriously and was thus known to the Respondent, including Looping Forelady Macy Campbell which, according to her, caused Campbell to "suspect" that Infinger and Logan were prounion. Early on the morning of August 13 Gentry, one of the leaflet distributors, was warned by Foreman Leonard Howard that, "You had better stay off the gate with those leaflets, they are going to have a firing spree around here one of these days and I would hate to see you get mixed up in it."3 Also early on the morning of August 13, acting upon the orders of her superiors, Foremen Livengood and Ivestor, Forelady Campbell began to watch Infinger and Logan "closely" and to count and time each break they took that day. About 8:30 a.m. that morning Jean Settle, whose worktable was several rows behind those of Infinger and Logan, sent word to her friends that she wanted four union application cards for possible signature. An hour or two later Infinger and Logan took a break stopping as usual at Settle's table for a word and delivered to Settle the requested authorization cards in a small brown paper bag before continuing on their way to the restroom.4 After the delivery of the authorization cards to her, Settle turned to two employees working at tables in the row directly behind her, Kaiser 5 and Jacqueline (Jackie) Henderson who had been honored that morning with a shower and a "cake cutting" on her last day of work before leaving on maternity leave, and asked them to sign union authorization cards. Kaiser accepted the card and subsequently executed it. Henderson refused to sign on the ground that "when she came back from maternity leave, that she wanted a job when she came back." Promptly after this refusal Henderson left her table and went to the table of Forelady Campbell where she complained that "Jean was upsetting her and was continually worrying her to sign union cards."' Following the return to work after lunch Henderson again went to Campbell informing her on this occasion, at least, that Infinger and Logan had brought the union authorization cards to Settle in a brown paper bag7 and that "Jean was just worrying her to death to sign one of those cards, and she had been doing it for some time." Promptly after Henderson's return to work Campbell relayed this report to Foreman Ivestor, her superior, who instructed Campbell to observe closely and to ask Jackie "if she wanted to talk to anyone." Having thus instructed Campbell, Ivestor in turn carried the news to his superior, Looping Superintendent Paul Hemrick. Thereafter Campbell came to Henderson's work station and informed Henderson that she was wanted in the office. Henderson then reported the incident to Foreman 3 This incident will be more fully considered infra 4 It is admitted that Respondent's employees are permitted to take their breaks at will The only time Respondent's supervisors objected to an employee's breaks was when, in the opinion of the supervisor, the employee is taking an excessive number of breaks or spending an excessive amount of time so as to interfere with her own work Also Respondent has no rule prohibiting the employees from talking 5 Also "Kiser " 6 Henderson testified that the first time Settle had ever asked her to sign the union card was on August 13 and that on that day Settle made the request twice Henderson also testified that she made this report to Campbell because she, Henderson, "wanted to protect her own job" and because she believed due to a letter which Hanes had sent to each of the employees that the girls were "doing something wrong " T The testimony of Henderson and Campbell is hazy as to whether Henderson mentioned the names of Infinger and Logan in connection with the delivery of the union authorization cards in her first report to Campbell or only in the second report Henderson admitted that she had seen Infinger and Logan bring the union authorization cards in the brown bag before her first report to Campbell However Henderson claimed that in the first report she had only complained about "the commotion " 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Livengood who promptly took her to Personnel Manager Frederick.8 At 3:29 p.m. (1 minute before the end of the shift), Campbell informed Settle that Livengood wanted to see her in the office and then called Infinger and Logan out of the line of employees punching out for the day and took them to Livengood's office along with Settle. In individual interviews Livengood informed each of the three that "after today we won't need you" or "as of now your services are terminated." Each of the three protested that the reason they were being fired was due to their union activities. Livengood's only answer was that he "did not want to be involved."9 Livengood then took the three to Personnel Manager Frederick who asked each individually to sign a termination slip which stated the cause of her discharge to be, "Discharged-neglecting work and interfering with work of others." Each refused to sign on the ground that the statement was untrue. Logan offered to sign the termination slip if Frederick could or would produce anyone she had interfred with. The offer was ignored. All three continued to protest that they were being unjustly discharged but without further investigation all three dismissals stood. b. Conclusions Disregarding the telltale timing between the leaflet distribution on the evening of August 12, the solicitation, and the discharges of the afternoon of August 13, Respondent strenuously maintained at the hearing through the testimony of Forelady Macy Campbell and two employees that Respondent had in fact discharged Infinger and Logan for "cause" because those employees for weeks had been taking "breaks," excessive both in number and in duration. To prove this contention Respondent called Campbell who testified with righteous indignation that for the last 4 to 6 weeks of their almost 10 years of employment with Respondent, Infinger and Logan took too many and too lengthy breaks during the workday. According to Campbell's account, this became so bad that on August 13 all 100 girls under her supervision had eyes and ears for nothing except Infinger and Logan; i.e., all eyes and ears were on them when they took a break.10 In fact Respondent produced an employee witness who testified with a straight face that every time Infinger and Logan took a break it disturbed her in her work because Infinger had a peculiar "shuffle" on her feet as she walked." As all 100 girls did their work on machines in this same room, this witness had to be endowed with rather remarkable hearing. Paul Hemrick, the looping superintendent, sought to corroborate Campbell, et al., by testifying that Campbell had reported these allegedly excessive breaks to him two or three times in the month before the discharges. Until August 13, however, Henrick's contribution to the solution 9 Henderson testified that she had "voluntarily" requested the right to protest to the above supervisors because she wanted "to protect her job" and to "protect the Company against the Union." In view of Ivestor's earlier order to Campbell to see if Henderson "wanted to talk to anyone," it is difficult to believe that Henderson was a "volunteer " 9 Neither Livengood nor Ivestor testified at the hearing 10 Campbell had a little trouble explaining how she knew that all 100 pairs of eyes and ears were on Infinger and Logan. 11 A trait this Trial Examiner failed to note during Infinger's short walk to the witness chair of this alleged problem had been restricted to informing Campbell that it was Campbell's duty to "control" the employees under her. If is admitted that Respondent had no rule regarding breaks by employees-at least until they became "excessive" in the opinion of the supervisor. Campbell admitted that she had never before warned an employee for taking excessive breaks-until August 13. The most Campbell even claimed was having said amiably to Infinger and Logan, "You here again!" and "I'm going to have to tie you to your chair." Beyond these comments Campbell acknowledged that she never gave Infinger or Logan a warning, written or oral, until August 13. But on August 13, the day after both Infinger and Logan had been distributing union leaflets at the plant gate to Respondent's knowledge, Campbell, acting upon orders from her superiors, for the first time in her 12 years as a supervisor began counting the number of breaks Infinger and Logan took and timing them. In fact, Campbell enlisted the services of Mary Reynolds, the forelady of the section next to Campbell's, to count and time those breaks while Campbell was on her own breaks. According to Campbell's testimony, she herself counted six breaks that day for a total time of 1 hour and 16 minutes and that adding the time Reynolds reported to Campbell that the employees were on breaks, the accumulated break time for that day amounted to 2 hours and 20 minutes.12 If this Campbell testimony can be accepted at face value, then one-quarter of the working day of Infinger and Logan on August 13 was spent on breaks and away from their work. It seems axiomatic that, if Infinger and Logan were absent from work for one-quarter of the working day, they could not have maintained their regular production for that day. As both employees were paid on the basis of their production, the payroll records would have reflected their absences from work that day in lowered production and pay and would have corroborated Campbell. Respondent failed, in fact refused, to produce such payroll records.13 The inference from this failure is clear and I draw the same. In the light of all the facts I am unable to credit the testimony in regard to the alleged "excessive breaks." However even if this evidence of Campbell were to be accepted, which under the circumstances of this case I cannot do, still other testimony proves that Respondent discharged Infinger and Logan for reasons other than these alleged excessive breaks. The facts here prove that Respondent discharged Jean Settle simultaneously with and as an integral part of this same incident which resulted in the discharges of Infinger and Logan. In all three cases Respondent made out identical termination slips reading "neglecting work and interfering with the work of others." But Settle, according to Campbell's own testimony, was a "very good" employee. Settle was always on the "honor roll" for production. She did not take excessive breaks. 12 Reynolds was not called to verify the truth of the facts she reported in this alleged report to Campbell nor was her absence accounted for Consequently 1 hour and 4 minutes of this accumulated time remained pure hearsay 13 General Counsel and the Charging Party had subpenaed these records Respondent refused to produce said records, one ground of such refusal being that said records were "immaterial" because Respondent was not claiming "poor production" as the cause of any of the discharges here However, in the instant cases, the termination slip showed " neglecting work" as one "cause" of discharge which seems to equate with "poor production " HANES HOSIERY DIV. 43 She did not bother other employees. In fact she appears to have been throughout her whole 10 years of employment an exemplary employee-except that on August 13, she asked employee Jackie Henderson in the plant during working hours to sign a union authorization card which to Henderson's and Respondent's knowledge had been brought to Settle that morning in a brown paper bag by her friends Infinger and Logan. As quickly as this was reported to Campbell, action began among Respondent's supervisory staff which resulted in the precipitous discharge not only of Settle but also of Infinger and Logan. Respondent had no reason to discharge Settle other than the incident of August 13. In fact Respondent did not even attempt to introduce any other "cause" for this discharge. So the legalistic verbiage on termination slip can mean only that Respondent discharged Settle for having solicited Henderson to sign a union card on company time and property. Respondent had no rule prohibiting talking among employees. It had no "no- solicitation" rule-nor, in fact, could there have been a legal no-solicitation rule in effect in the plant due to the numerous businesses, chances, and solicitations carried on daily in the plant by employees with Respondent's knowledge and consent, to wit, Avon Products and Stanley products were sold, candy sold by Macy Campbell herself, chances taken on raffles, and even flowers for sale were on display. But for spending 5 or perhaps 10 minutes talking to Henderson about signing a union authorization card, Respondent discharged Settle. To maintain that Settle, an honor role employee, was neglecting her work thereby is too asinine to require comment. To argue that by such solicitation Settle "interfered with the work" of Henderson is equally as absurd and, in this instance, slightly ironic because it was only that very same morning that Henderson had been honored with a shower which was supposed to have taken place before work and a "cake cutting" with other employees which occurred during working hours. Such affairs had to "interfere with the work" of the many employees who participated-including Macy Campbell-but Respondent considered such interferences to be for a worthy cause. Obviously union solicitations were not so considered. Settle was fired for it despite the fact that there was no rule prohibiting it. And so were Infinger and Logan. Although their allegedly "excessive" breaks had been going on for a month or more, neither Campbell, Livengood, Ivestor, Hemrick, nor Frederick considered the alleged offense serious enough, until August 13, to even talk to the employees about the matter other than the two innocuous remarks made by Campbell which could hardly be classed as "warnings." On the other hand, when it was reported to Respondent that the union authorization cards had been handed to Settle in a brown paper bag by Infinger and Logan, Respondent's whole supervisory staff went into immediate action culminating in the sudden discharges of that afternoon. It is further noteworthy that Campbell began her activity of checking and timing of the employees' break for the first time on the morning after Infinger and Logan had been seen distributing union leaflets at the plant gates. The speed displayed after the solicitation contrasts strikingly with the month's long lassitude displayed over the alleged excessive breaks. Accordingly, I am convinced, and hereby find, that Respondent discriminatorily discharged Nora Infinger, Betty Logan, and Jean Settle on August 13, 1965, because their union activities had become known to the Respondent and in order to discourage union membership and activities among its employees in violation of Section 8(a)(3) and (1) of the Act. 2. Lewell Gentry a. The facts When Respondent discharged Lewell Gentry on August 18, 1965, Gentry had been continuously employed by Respondent for a period of 12 years, the first 2 of which he worked as a knitter and the last 10 as a fixer. Respondent's evidence indicates that until his transfer to the first shift in November-December 1964, Gentry's work as a fixer had been satisfactory to Respondent. Gentry joined the Union in March 1964, and thereafter was busily engaged in union activities; soliciting union memberships in and outside the plant, attending union meetings, and distributing union leaflets. The Union's letter to Respondent dated July 8, 1964, listed Gentry's name as one of its active members. Gentry received a copy of Respondent's acknowledgment of the receipt of that union letter. Thus Respondent admittedly was well aware of Gentry's prounion activities. In November-December 1964, as noted above, Gentry was transferred from the third shift to the first, or daylight, shift as a fixer on line 76. According to Respondent, fixers are promoted to the first shift strictly on the basis of seniority despite the fact that, according to Respondent again, the fixer on the first shift is supposed to be "responsible" for the work of the second and third shift fixers on the line, a duty about which Respondent never informed Gentry. Admittedly fixers are not supervisory employees. Just prior to Gentry's transfer to the first shift Glenn Smith, foreman of the third shift, showed Gentry a unique document, never before seen by Gentry in his 10 years as a fixer, in which Smith had "rated" Gentry below average in every qualification of a fixer except attendance. According to the testimony of David Kallam,14 knitting foreman on the first shift, Smith reported to him that Gentry was not a very good fixer. However, Gentry was promoted to the first shift and thus, according to Respondent, became "responsible" for the fixers on the other two shifts. Foreman Kallam welcomed Gentry to the first shift upon his transfer saying that he, Kalram, was glad to have Gentry and that he had been saving a line just for Gentry. He then assigned Gentry to line 76. In January 1965 Kallam brought a production report on line 76 for Gentry's inspection. At this time Kallam told Gentry that he knew that the bad production report was not Gentry's fault, that the line had been "running in the red" for years, that he just wanted to show Gentry what Gentry was up against on the line, and that "I want to see if you can't bring that line up and get it running like one should.... I know you can do it." 15 On May 20 and again on August 12, 1965, Gentry distributed union leaflets at the plant gates after work along with most of the other employees involved here. 14 Also spelled "Kellum " in the transcript 15 Kallam denied that he told Gentry that he had been saving line 76 for Gentry or that the line had a problem Kallam acknowledged that later he did show Gentry a production report on line 76 and did not dispute the rest of Gentry's testimony about that occasion 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the morning of August 13 Leonard Howard, foreman of the changing crew which had been making numerous changes in line 76 while Gentry was the fixer on the first shift, saw Gentry about 8:30 a.m. and said, "A little word of advice. You had better stay off the gate with those leaflets, they are going to have a firing spree around here one of these days and I would hate to see you get mixed up in it."i6 On August 18 at 3:15 p.m. Knitting Superintendent Hedgecock and Kallam discharged Gentry telling him at that time that "we've followed your work all the way through the mill and we have come to a conclusion that everything that is wrong with the line is your fault." For the first time they informed Gentry that it was his "responsibility to see that all three shifts did their work right." Gentry answered that all he could do was to tell the other fixers how and hope that they did what he suggested. He then asked if his discharge "would not have something to do with union activities." To this Hedgecock answered, "We were not going to bring this up but, since you have, we think you have a very bad attitude towards the Company." After Gentry denied having any such bad attitude, Hedgecock continued, "Don't you think anybody that wanted the Union in there has a bad attitude ?"17 The following day Gentry saw Personnel Director Frederick who said that he knew nothing of Gentry's discharge before Gentry told him. Frederick then got the discharge report and stated that, "This says your work was not up to par." Gentry denied that his work was poor and stated that he thought he was fired for his union activity. Frederick answered this by asking, "Don't you think anyone that wanted the Union had a bad attitude?" Frederick then requested Gentry to sign his discharge slip which gave the cause of discharge as "discharged-work not satisfactory as a fixer." Gentry refused to sign. He then requested the right to see Plant Superintendent Waggoner and President Hanes in accordance with the new August 8 grievance procedure. Frederick said that he would get Gentry an appointment with them. That was the last Gentry ever heard of that. He remained discharged." b. Conclusions In order to prove its defense that "things grew steadily worse" in line 76 while Gentry was the fixer on the first shift for which Gentry was solely responsible, Respondent called David Spencer Kallam, knitting foreman on the first shift, Albert A. Loggins, knitting foreman on the second shift, Harvey A. Isom, fixer on the second shift, Royce E. Sisk, knitter on the second shift, Robert L. Evans, floating fixer on the first shift, J. H. Cecil, volumet operator on the second shift, Don Boyles, floating fixer on the second shift, James H. Rutledge, head fixer on the third shift, and R. Glenn Smith, knitting foreman on the third shift. Without going into the details of their testimony the gist of the testimony of each of the above was that there had been no troubles on line 76 before Gentry became the fixer on the first shift, that thereafter "things grew steadily worse" on line 76 so that everybody working on it was losing money but that, as soon as Gentry was discharged on August 18, line 76 once again became a fine line without troubles. In short the troubles on line 76 began when Gentry became the first shift fixer on the line and ended promptly upon his discharge. This whole testimony was characterized by its vague generalizations, its absolute indefiniteness, and its liberal use of hearsay "reports," the facts contained therein never being proved. On one thing all these witnesses agreed: No matter how low line 76 fell in production, Respondent never held a line conference of the workers on line 76 nor made any investigation seeking the "cause" of the alleged "trouble." However, based upon the above testimony, Respondent maintained that Gentry was discharged for "cause," poor workmanship. It is a beautiful theory, if one can accept it. There are, however, a few flaws in the theory. Despite the numerous witnesses Respondent called to testify about the Gentry matter, Respondent followed the usual pattern in this case by omitting to call as witnesses three persons: Subforeman Shore, on the first shift, Speas, the head fixer on the first shift, and Bill Steelman, the volument operator on the first shift who regularly checked the sizes on Gentry's work. These three men working right alongside of Gentry throughout his 8 months on line 76 would have known Gentry's work better than anyone else. Even Kallam testified that Speas and Steelman were probably the best qualified men to express opinions of Gentry's work. Speas was not called to testify nor was his absence accounted for. The inference is obvious. Bill Steelman, the volument man, who regularly checked the sizes on Gentry's line was the best qualified individual to testify whether Gentry was sizing correctly or incorrectly. Steelman was not called as a witness nor was his absence explained. The inference is again obvious. According to the testimony of Kallam, Subforeman Shore had on almost innumerable occasions, always in Kallam 's absence, criticized Gentry's workmanship to Gentry. Shore did not testify, so that Kallam's testimony was nothing more than hearsay. Again the inference is plain. Nor did Respondent produce any production or other records on line 76. Thus the "proof" of Gentry's alleged poor workmanship amounts to nothing more than hearsay, unproved "reports," and personal opinions without factual basis. As a matter of fact Kallam himself gave the game away on cross-examination when he admitted, from knowledge gained from seeing the unproduced production records, that before Gentry became the fixer on the first shift, line 76 was operating at 96 percent production and at the time Gentry was discharged, line 76 was operating at 98 percent production. Hence, contrary to the testimony given by all the other witnesses called by Respondent, line 76 in fact improved while Gentry was the first shift fixer and did not get "steadily worse" as those witnesses would have us believe. In fact Kallam was the first to admit, contrary to 16 Howard specifically denied making the above statement Howard was not a convincing witness He originally testified that he first learned that Gentry was prounion in the year 1966 He then changed that date to the "latte' part of 1965" as the date that lie• "could have known about it," Subsequently on cross- examination he acknowledged that he had "heard" that Gentry was prounion in the year 1964-but that that was just "hearsay." I cannot credit Howard's denial, particularly as the record proves that the prophesied "firing spree" began that very same day as found heretofore. 11 This conversation as related by Gentry remained undemed and uncontradicted as neither Hedgecock nor Kallam testified in regard thereto 18 Although present at the hearing, Frederick was not called as a witness so that the above testimony of Gentry remained uncontradicted HANES HOSIERY DIV. the testimony of the other witnesses , that for years line 76 had been "operating in the red" and that during the period Gentry was the fixer, line 76 improved until its production was 98 percent, only .3 percent less than the average of all machines under Kallam's supervision. This Kallam knew from the records which Respondent did not see fit to produce at the hearing. Kallam also admitted that throughout his employment on line 76, Gentry "always" received a bonus for making at least 96 percent production while Isom, fixer on the second shift, "generally" received such a bonus although the three different, new and green fixers on the third shift "seldom" managed to earn the bonus. But Respondent had a theory for this also: that Gentry spent his time helping his knitter make more production while neglecting the fixing of the machines. This theory also has too many holes in it to be acceptable: (1) Gentry had to have the machines on line 76 working correctly during his shift in order to run the required percentage of production to get the bonus; (2) the machines run at a regular speed which a knitter can handle alone without the assistance of his fixer so that the assistance of the fixer in the knitting operation would not increase production; (3) this theory presupposes that Gentry not only knew how to keep the machines running correctly on his own shift but, more importantly, he knew how to have them break down on the shifts after his own. I cannot believe that Gentry was that much of a mechanical genius. Consequently I must find that bonus fixer Gentry was not discharged by Respondent for poor workmanship as contended. On the other hand the uncontradicted evidence proves that the statements of both Hedgecock and Frederick, neither of whom testified to the contrary, show that they were discharging Gentry because he had a "bad attitude" towards the Company in wanting the Union to represent Respondent's employees and because he continued to engage in union activities. Even as Howard indicated, Respondent did in fact engage in a "firing spree" against those who joined the Union and engaged in union activities. This is a 8(a)(3) and (1) violation. Accordingly, I must find that Lewell Gentry was discharged on August 18, 1965, by Respondent because of his known union membership, his known union activities, and because the Respondent believed he had a "bad attitude" because of these facts in violation of Section 8(a)(3) and (1). 3. Hazel Boles a. The facts Hazel Boles was employed by Respondent in November 1961, and worked steadily thereafter until discharged on August 20, 1965. Her foreman for her last 2 years of employment as a folder and stamper was Wrenn Vannoy and her immediate supervisor was Nanny Brewer. Admittedly Boles was a "very good" employee, being very -fast and very productive and thereby, as a pieceworker, one of the higher paid employees in the unit averaging over $2 per hour. Boles joined the Union on February 28, 1964, and promptly became active on behalf of the Union passing out 19 This testimony is undenied as Brewer was not called as a witness 20 One of the two unequivocal statements Vannoy made during his indefinite testimony was to deny having made these last two statements as testified to by Boles 21 Inspectors are not supervisors 45 leaflets as early as the spring of 1964, becoming the chairman of the employees organizing committee in her department and actively soliciting union memberships among her fellow employees. The name of Hazel Boles was included on the Union's letter to Respondent dated June 8, 1964, as one of its active union members. She received a copy of the letter from Respondent acknowledging receipt of the June 8 letter. Respondent early recognized Boles as one of the active union adherents. As early as September 1964, Nanny Brewer spoke to Boles telling her how thankful Boles should be that Hanes "would permit" her to work. When Boles inquired if Brewer was speaking of the Union, Brewer answered in the affirmative and inquired if Foreman Vannoy could talk to her about the Union."' Vannoy did come to Boles shortly thereafter and told her all about the "troubles" his brother had endured in the North under a closed-shop union contract. He inquired as to what Boles' husband, a known union member, thought of "Jimmy" Hoffa. Boles then stated that she thought Respondent was trying to discharge her because of her activities on behalf of the Union. Vannoy answered this by admitting that her work was being closely checked but that they could not find anything against her work but that they would find something. But he added that it then looked as though Respondent would have to fire Vannoy before they discharged Boles.20 Beginning about June or July 1965, Boles became even more active in soliciting union memberships and signed authorization cards. About this time Boles made several efforts to interest employee Janet Lawson in signing a union authorization card and attending weekly union meetings . A number of such conversations took place at Lawson's worktable. On one occasion Boles handed Lawson an authorization card while both were in the restroom. Lawson was polite but uninterested because she was fearful that there might be others present at the time. She did not sign an authorization card nor attend union meetings. Soon after July 27 Lawson reported these attempts by Boles to Foreman Vannoy. Vannoy expressed his "appreciation" for her report which he promptly carried to his superintendent, Loftis, whose reaction, according to Vannoy's testimony, was that this was a "serious matter" and that they "would have to discuss it." After learing of Lawson's report to Vannoy, Boles ceased her solicitation of Lawson. Either in June as Boles testified, or on or about August 1, as Hall testified, Boles approached her inspector,'' Jean Hall, and asked Hall to give her, Boles, a list of all the employees in the department with their addresses to which Hall had access. Hall told Boles that she, Hall, would do so "later" and "when she had time." Subsequently Boles inquired about the list several times but was put off each time with a statement that Hall did not have the "time."-- On August 9, according to Hall, Boles inquired about the list again offering this time to do some housework for Hall while Hall copied the list at home for her. Hall then reported to Vannoy that Boles had requested that she give Boles the list of the department employees 22 Originally Hall testified that during August Boles inquired about this list "a dozen times," an estimate which she subsequently revised to "three or four " In view of the time element as testfied to by Hall, Hall's original estimate seems exaggerated. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with addresses and had offered "to pay" Hall for it.23 Vannoy then instructed Hall that, if Boles repeated her request, Hall should tell Boles that Boles would have to request the list from "supervision." On or about August 11 Boles reminded Hall of the promised list. At this time Hall said that the list was on her table and that Boles could take it off the table. This Boles refused to do with a comment, "Are you crazy? Vannoy would fire me if he caught me in those papers."24 Hall then stated that Boles would have to get the list then from her foreman, Vannoy. Boles told Hall "to forget it."22 Later that day Hall again reported to Vannoy that Boles had again requested the list and had offered to "pay" for it. But Hall did not mention the alleged "threat" to Vannoy.26 Vannoy again promptly reported this incident to Loftis who again remarked that the matter was "serious" and that they "would have to discuss it." Both Hall and Boles agree that there was no further mention of the list thereafter. On the evening of August 12, as found heretofore, Boles was one of the union group who distributed leaflets at the plant gates at the end of the shift. This was known to Respondent. According to the testimony of Hall, on August 18 she did report to Vannoy that Boles had "threatened" her on August 11 that, if she reported Boles to supervision, she would "not live to get back here." Hall further reported at this time that employee Carolyn Nail Walker had "overheard" Boles tell a third person, unnamed, that, if Hall reported Boles to supervision, "she [Hall] would not live to get back here." Hall requested Vannoy to call Walker in to repeat what she had "overheard. `21 According to Hall and Vannoy, Walker was called in and did repeat the "overheard" threat. Significantly, as was frequently the pattern in this case, Respondent did not choose to call Walker as a witness at the hearing nor to attempt to account for her absence. Uncontradicted evidence showed that Walker had been in attendance in the hearing room. In the light of this, there is no probative evidence in this record as to what, if anything, Walker "overheard." Upon receipt of this last report, Vannoy again carried the report to Loftis who, in Vannoy's words, "agreed" with Vannoy that the matter was now "very serious ... after all of this came together, the reports from Mrs. Hall and Mrs. Lawson." So that on August 18 the decision was reached that Boles was to be discharged at the conclusion of work on August 20. Admittedly Boles during this whole period received no written or oral warnings despite the fact that Vannoy testified that both he and Loftis considered the solicitation of Lawson to be a "very serious matter," considered Boles' request of Hall for the list of employees to be a "very serious matter," and considered the threat allegedly made by Boles to Hall to be a "very serious matter." In fact, to all outward appearances Boles' employment continued on as usual until 1 minute before quitting time on August 20 when Brewer came to Boles and stated that Vannoy wanted to see her in his office. Boles told Brewer that she wanted to take a witness with her but Brewer refused. When Boles and Brewer arrived at Vannoy's office, Vannoy informed Boles that Boles was terminated "as of that date." Boles asked, "Why?""" Vannoy answered that Boles' "quality and quantity was not good; [Boles] had a bad attitude: [Boles] had interfered with others: [Boles] had a bad medical record; a bad attendance record." Vannoy then inquired whether Boles would see Personnel Director Frederick who was waiting for her, according to Vannoy. Because of the lateness of the hour, Boles refused to see Frederick. The following Tuesday, Boles returned to the plant and saw Frederick who was "surprised" to learn that she had been discharged. Frederick left the room to get the termination notice. He returned with a termination notice signed by himself, not that signed by Vannoy, which read: "has proved to be an unsatisfactory employee; has interfered with work of others and otherwise misconducted herself." Frederick stated that all he knew about the discharge was what the foreman told him. Boles requested the right to see Superintendent Waggoner and President Hanes in accordance with the Respondent's new grievance procedure set forth in the letter of August 8. Frederick told her that both Waggoner and Hanes were busy but that he would make an appointment for her to see them. Although Boles returned to see Frederick the following week requesting her job back and an appointment with Hanes, Boles has never been reinstated nor had she been given an appointment with Hanes.29 b. Conclusions The testimony makes it clear that, according to Respondent's theory, three episodes caused Respondent to discharge Boles who was known by it to be actively prounion: (1) Boles' attempts to solicit Lawson to sign a 23 Although Hall denied Boles' offer to do housework, Hall admitted that no specific renumeration was ever mentioned between the two. 24 Boles became suspicious and figured that "I was being set up for something" and so was not going to touch the list unless it was given to her by Hall. In the light of the Vannoy instructions to Hall, it appears that Boles ' woman 's intuition was at work. Yz Hall testified that Boles' answer to this was, Are you crazy? ... If you ever tell on me, you will not live to get back in here." For reasons to be explicated later, I cannot credit this testimony and hence credit the denial of Boles that she ever made any such statement or "threat." 26 Hall testified that she did not report the alleged threat because she did not consider it "serious." In fact Hall also acknowledged at the hearing that she and Boles continued to "joke and kid" thereafter just as they had done previously. Obviously either the threat was not made or, as Hall testified, it was not serious. 27 According to Hall, the alleged repetition of the "threat" made it "serious." 28 Up to this point the testimony of Boles and Vannoy had been identical. According to Vannoy, he answered Boles' inquiry by telling her that she was discharged "because she was bothering other people and otherwise misconducting herself." Vannoy denied having given any other reasons for the discharge, this being •Vannoy's second unequivocal testimony. However, admittedly Vannoy cited at least one other reason on the termination notice which he wrote out, but which was not produced at the hearing, to the effect that Boles "has proved to be an unsatisfactory employee." In addition Vannoy proved to be a very indefinite and forgetful witness. Also admittedly Vannoy took occasion to check Boles' production record which only proved that Boles had been earning over 82 per hour. Respondent did not call Brewer. The inference from this is clear. Accordingly, I credit the testimony of Boles. 29 This testimony by Boles is uncontradicted because, although he was present in the hearing room most , if not all , of the hearing, Frederick did not testify. Neither did Loftis testify. HANES HOSIERY DIV. union authorization card which, according to Respondent, "interfered" with Lawson's work although Lawson testified to the contrary at the hearing; "' (2) Boles' attempt to secure a list of departmental employees for union use•;' from inspector Hall; and (3) Boles' alleged "threat" on Hall's life if she reported Boles to management. The first two of these events constituted legitimate protected union activity on the part of Boles. As found heretofore, Respondent had no rule against talking nor any rule against solicitation."' Although Respondent for reasons of its own may have preferred not to have a list of its employees placed in the hands of the Union, there was nothing secret or sacred about such a list. The third episode, the alleged threat on Hall's life, although growing out of a protected union activity, would, if proved, constitute lust cause for dismissal. Such a threat would be excessive and thus removed from the protection of the Act. According to Hall, this threat was made by Boles on August 11, 1965, when Hall finally, upon instructions from Vannoy, told Boles that she would have to get the list from "supervision ," if she, Boles, would not take the proffered list off of Hall's table."" -But when immediately thereafter Hall reported this event to Vannoy, significantly she made no mention to him of any alleged "threat" by Boles It is further noteworthy that, as Hall admitted, thereafter she and Boles continued to "kid and joke" as usual just as though no threat had ever been made. It was not until 1 week after the event, on August 18, that this woman whose life was supposedly in danger (because she had reported Boles to supervision) finally and belatedly reported the alleged threat. Hall's excuse for this delay was that she did not consider the threat "serious " until employee Carolyn Nail Walker suddenly told her that she, Walker, had "overheard" Boles recounting the identical threat apparently to some third person. Both Hall and Vannoy testified that, at Vannoy's request, Walker did repeat this report to them. The contents of Walker's report, as counsel had been warned, amounted to hearsay. Respondent did not call Walker to testify as to what, if anything , she supposedly had "overheard ," although the evidence shows that Walker had been in the hearing room during the hearing. It is a fair inference from Respondent's failure to call Walker, which I draw, that, if called, Walker's testimony would not have assisted Respondent. In addition this failure also means that Respondent has failed to prove the contents of the report made by Walker by competent, probative evidence. Thus there is no proof as to what Walker supposedly "overheard " Accordingly, I credit the denial of this testimony and of 30 Lawson was followed on the stand by employee Voss who shared a worktable with Lawson. Voss testified that Boles also solicited her to join the Union and that these solicitations did interfere with her work This testimony, if believed , proved to be immaterial to Respondent 's case because Respondent learned about Voss and the alleged interference with her work only after Boles had been discharged and hence it could have played no part in the discharge 31 Hall and Boles agree that, when Boles laughingly informed Hall that she wanted this - list for use "at Christmas," both understood that the list was for the Union 32 Respondent attempts here to create a "no-solicitation" rule by the legalistic use of the phrase "interfering with the work of others" by finding that such "solicitation" for the Union did "interfere with others." However , any talking to employees must necessarily "interfere" with the listener But Respondent had no 47 the threat by Boles, who appeared to be a straightforward, forthright witness who was telling the truth. Under all the circumstances I am convinced, and hereby find, that, contrary to Hall's testimony, Boles did not make this or any other threat against Hall. This finding is buttressed further by the fact that, although Respondent and Hall purported to believe Hall's life to be in imminent danger due to this alleged threat, Respondent permitted Boles to continue working for 2 or 3 days thereafter without a word of warning to Boles or any precautions taken to preserve Hall's threatened life. This failure, together with the surreptitious instructions given Hall by Vannoy create at least a suspicion that Respondent was attempting to entrap Boles into some action or statement which would justify her discharge-even as Boles at the time feared. It is clear and I find that the Respondent discharged Hazel Boles on August 20, 1965, because it knew and disapproved of her union membership and particularly her continued activities on behalf of the Union in and out of the plant and for the purpose of discouraging such membership and activity in violation of Section 8(a)(1) and (3) of the Act. 4. Roxie Tesh a. The facts At the time of her discharge by Foreman Thurman Binkley on October 28, 1965, Roxie Tesh had been employed by Respondent as a pairer for 6 years and 4 months. Early in May 1964, Tesh signed a union authorization card on behalf of the Union and became active in its organizing campaign at Respondent's plant . She became the co-chairman of the employees' organizing committee and a member of a team which visited employees at their homes seeking signatures on union authorization cards. In addition she wore union buttons in the plant and passed out leaflets at the gates. Under date of June 8, Gordon Hanes, Respondent's president, wrote the Union a letter in pertinent part as follows: We have received your letters in which you state that each of the following employees " is a member" of your union and is "engaged" in active efforts on behalf of your union, namely:... Roxie B. Tesh.34 We are taking di.e note of this information. We want these employees, whom you have named, to understand, however, that their being members of rule against talking As applied here by the Respondent, only solicitation on behalf of the Union " interfered with the work of others " Under Respondent's interpretation, the solicitation of employees to buy numerous manufactured products, raffle tickets, candy, flowers, and other things did not so interfere Such interpretation is too restricted to be legal In addition this interpretation might also be unconstitutional as depriving the employees of their freedom of speech 33 Boles refused Hall's offer that Boles take the list off Hall's table because Boles feared that she was "being set up for something " 31 This letter listed 16 names, including Tesh 's Among the employees so listed were Hazel Boles and Maxine Holcomb, who are also involved in the instant matter Respondent conceded at the hearing that it had knowledge of Tesh's involvement in the Union 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD your union does not give them any immunity of any sort nor any preference over other employees. Although your letters disclaim any idea that these individuals are seeking different treatment from other employees, it appears to us that this is exactly the purpose of your letters. We want to make it entirely clear that these employees will be expected and required to perform their jobs as fully as any other employees-if they wish to remain in this Company's employment. [Emphasis supplied.] In addition to sending carbon copies of this letter to the individuals named therein, Respondent posted copies of this letter on the plant bulletin boards. About April 23, 1965, Tesh wore a big 3-inch union button to work. After lunch that day Binkley came to her table and ordered her to remove the same on the ground that its display was causing "confusion" in the plant.35 Tesh protested that Respondent had permitted the employees to display equally large buttons during the presidential election without objection. Binkley was adamant. After Tesh reluctantly removed the button, Binkley reported the incident to his superior as an instance of "defiance." In July 1965, Respondent placed additional duties upon its pairers. For sometime Respondent had refused the pairers the right to inspect the quality and production reports put out by Respondent weekly contrary to pass practice. The result of both these things was that on July 27, 1965, the pairing department engaged in a sitdown strike. Tesh was elected by the employees as 1 of 17 representatives of the department to confer with President Hanes, Superintendent of the Finishing Department Young, Plant Manager Waggoner, and Personnel Director Frederick. During this conference Hanes remarked that, when the Union heard about the sitdown strike, it would be waiting for the employees at the gates. After the employee representatives had aired their complaints, Hanes promised "to see" what could be done about them. The following day the same group of representatives met with Superintendent Young who stated that there had been complaints that the employees had been "misrepresented" at the conference. Tesh spoke up and stated that the employees all knew about her union activities before they elected her to represent them in the sitdown matter. Young thereupon asked the group to indicate by a show of hands who among them was for the Union.36 A number of the group raised hands. The sitdown strike "irritated" Foreman Binkley who admitted that, while he knew Tesh had been active in the matter, he did not know that she was a leader thereof, even though the local newspaper and television station had interviewed Tesh in regard thereto.37 On August 12, 1965, the Union distributed leaflets at the plant gates. Among the distributors were Roxie Tesh, Maxine Holcomb, Hazel Boles, Betty Logan, Sue Infinger, and Lewell Gentry. This distribution was open, notorious, and known to the Respondent, including Foreman Binkley. On October 27, 1965, Tesh was ill. She failed to report in sick to Respondent on the day of her absence. On October 28, Tesh returned to work. She went to her desk as usual and began working. When her superior, Elva Stonestreet, failed to appear promptly at her desk that morning to give Tesh a slip to see the plant nurse as was her custom, Tesh so informed Marie Caudle, an inspector who shared a table with Stonestreet, and asked her to call the omission to Stonestreet's attention. However the slip to see the nurse was not forthcoming. About 2:30 p.m. Tesh attempted to attract Stonestreet's attention to her omission. She was unsuccessful. Early on that morning of October 28 Stonestreet had reported to Binkley, as was customary, the employees absent from work that day. Stonestreet also reported at the same time, the only such report Binkley ever recalled, that Tesh had returned to work but had not reported to Stonestreet's table prior to commencing work. Binkley thereupon reported these facts regarding Tesh to Superintendent Young with the recommendation that Tesh be discharged because of her "defiance" in this matter. According to Binkley, Young then instructed him, "Bink, if you think you can't control this girl, I don't think you have any alternative. . . . You are the boss of the department; you have got to control these people; and if you think you can't control this girl, you terminate her."38 Binkley thereupon made out a termination slip for Tesh giving the reasons for the discharge as, "Did not conform to requirements with respect to unexcused absence and reporting this and poor quality on work." Binkley testified, however, that, "I fired her [Tesh] because she had been defying me for the 2 years I had been in that department, and this [October 28 episode] was another defiance and I had gotten all of it that I wanted." About 3 p.m. Binkley and Stonestreet stopped at Tesh's table where Binkley ordered Tesh into his office where he said he had some defective work to show her. In the office Binkley showed Tesh some defective work. Tesh expressed doubts about this work being hers. Then Binkley told her that that was not the reason, or "the primary reason" according to Binkley, he had called her into the office. He thereupon told Tesh that she had "deliberately" laid out of work the day before, did not call him, and did not report to her supervisor, Stonestreet, upon her return from an unexcused absence and so she was discharged. According to Binkley's testimony, he then offered Tesh an exit interview and ordered Stonestreet to get Tesh's personal belongings out of her table. Tesh objected that no one was allowed to handle her personal belongings whereupon Binkley instructed Stonestreet to stand guard by Tesh's table. By this action "Roxie again defied me" was the way Binkley described it. Binkley accompanied Tesh for the exit interview to see Personnel Director Frederick after Superintendent Young relayed word that he, Young, had nothing to say to her. Frederick requested her to sign a discharge slip. Tesh re- 33 Although Tesh had worn the button all day, Binkley apparently only noted this alleged "confusion "after lunch and particularly while he was walking to Tesh's table, interest created, perhaps, by the employees' curiosity as to Binkley's intentions as General Counsel refused to amend the complaint to allege this to be a 8(a)(1) violation 37 Binkley testified that he did not subscribe to the local newspaper Whether he owned a television was not probed at the hearing However,lhe had heard reports both about the interviews in the newspaper and over television. 38 Young did not testify HANES HOSIERY DIV. 49 fused because the reason for discharge stated thereon was not true, particularly the "poor quality on work," and asked Frederick to check the records. Frederick's answer was that he did not need to, that he took the word of the foreman. On August 8, 1965, Respondent had published a "new and improved" grievance procedure. In its letter of transmittal of this new procedure Respondent stated, "We want your problems to be heard, and we intend for them to be resolved." Under this procedure Tesh asked Frederick to see Plant Manager Waggoner. She saw him and protested that the reasons cited for her discharge were untrue and that she was being fired for union activities. Waggoner merely informed Tesh that her union activity had nothing to do with the discharge. Tesh thereupon requested to see President Gordon Hanes. Upon seeing Hanes the following day, Tesh asked him to check her records to prove that the poor work claim, at least, was untrue. Hanes refused on the ground that there was no need as the foreman and superintendent's word was "good enough" for him.39 b. Conclusions To Respondent's admitted knowledge Tesh was an ardent advocate and worker for the Union: Co-chairman of the empployees ' organizing committee , solicitor of union memberships, distributor of union leaflets, and wearer of union buttons. She was also the leader and spokesman for the pairing department sit-downers, an episode which caused Hanes to remark that their action would bring the Union to plant gates and to irritate Binkley. In addition Tesh was an employee who stood on her rights. She pursued Respondent's new (August 8) grievance procedure, which Respondent allegedly set up because it "wanted" the employees' problems heard and "intended to have them resolved," to the very end. Gordon Hanes proved the futility of his own new procedure by refusing to investigate the facts as re- quested on the grounds that the word of the foreman and the plant manager was "good enough" for him. Hanes' refusal now looks rather silly in the face of Respondent's concession at the hearing that poor work had nothing to do with this discharge. Despite the phraseology of the termination slip Binkley testified that he discharged Tesh on October 28, 1965, "because she had been defying me for the 2 years I had been in that department." According to Binkley, this defiance began at some indefinite date "early in 1964," or in December 1964 or January 1965,40 when Tesh "sarcastically" gave him 2 weeks' notice of quitting because he would not allow her to move her worktable but subsequently that same day apologized to him and withdrew her notice. Because of Binkley's complete indefiniteness as to even the year in which this so-called "defiance" occurred, it is possible-but not probable-that this "defiance" occurred prior to Respondent's knowledge of Tesh's interest in the Union. According to Binkley, Tesh's second alleged "defiance" of him occurred in the "spring" of 1965, and, therefore, long after Tesh was known to be active in the Union, when 39 Contrary to Hanes' statement, Respondent conceded at the hearing-and Binkley so testified-that "poor quality on work" had nothing to do with the discharge of Tesh Thus the "cause" of she "very sarcastically" had requested hourly pay for picking up hose which had fallen off the antenna on her table. Upon Binkley's refusal she turned and walked away from him. Binkley immediately reported to his superior, Young, that Tesh was showing "defiance" and was "hard to control." The third alleged "defiance," according to Binkley, occurred on April 23, 1965, when Tesh asked Binkley "why" she had to remove the large union button when he ordered her to do so. Again Binkley reported to Young. Although Binkley failed to mention the July 27 sitdown strike as an act of "defiance" of him on Tesh's part, this sitdown had "disgusted" Binkley. The last act of defiance in Binkley's estimation was Tesh's "deliberate" failure to follow what he said was the "regular" company procedure by reporting back to work after a 1-day absence for illness directly to the supervisor's table to secure a slip from the supervisor to see the nurse before going to her own worktable. The issue in this case in Respondent's theory of it thus gets down to the question of what constituted "regular" company practice and procedure employees returning from a 1-day absence from illness should follow and whether Tesh "deliberately defied" Binkley by not following it. Tesh's failure to follow what Binkley maintained was regular company procedure amounted to what he called "deliberate defiance" of him and was thus, in Respondent's view, the "cause" of her discharge. According to Binkley, regular company practice and procedure for an employee returning from an absence due to sickness required the employee to report directly to the table of her supervisor, there secure a slip to see the nurse, be checked by the nurse, and then for the first time return to her own table and commence work. Binkley stoutly maintained this to be established company procedure, although finally admitting that he himself had had no personal experience with it, and that "conceivably" the procedure might vary according to the supervisor involved. On the other hand Tesh testified from her 6 years' experience under the supervision of Elva Stonestreet that in actual practice in her section the employee returning from such an absence, returned to her own table and worked until Stonestreet appeared at the employee's table, which she customarily did promptly and gave her a slip to see the nurse whereupon the employee went to the nurse, was cleared, and then again returned to her own worktable and continued working. The actual difference between these two versions of "regular company procedure," to wit, whether the employee returned to her own worktable or to her supervisor's originally, may well seem picayunish but, according to Respondent, that difference constituted the "cause" which justified the discharge of Tesh. In fact it may seem so picayunish as to indicate that Respondent here was searching for something, anything, to justify the discharge. Little time or effort is needed in order to determine this conflict. If there was one person who knew from long firsthand experience what the actual practice was in her section, it was Elva Stonestreet, the supervisor who handled it. But, as became almost customary in this case, Respondent did not choose to call Stonestreet as a witness Tesh's discharge was reduced to her failure to report to Stonestreet before commencing work 40 Binkley was indefinite 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nor to account for her absence although the evidence indicated that she was still available. The inference from this failure is clear. I draw it and consequently find, contrary to Binkley's testimony, that regular company practice in Stonestreet's section, at least, was as described by Tesh, and, as a subsidiary thereto, that on October 28, 1965, Tesh did not, "deliberately" or otherwise, violate regular company practice in waiting at her own table for Stonestreet to bring her the slip for the nurse. Thus the main "cause" specified by Respondent in its termination notice to Tesh is false. The charge of poor workmanship against Tesh stated as the other reason on the termination slip was equally false due to Respondent's concession at the hearing that Tesh's workmanship was not in question. Consequently both reasons noted by Respondent on said termination notice was untrue. It is significant that, even from Binkley's description thereof, each of the claimed "defiances" by Tesh of Binkley-with the possible exception of the first-were directly connected with the union, concerted activity or collective bargaining. In addition, Tesh had been one of the known union adherents who distributed union leaflets at the plant gates on August 12, the day before Respondent began its "firing spree," a spree to which such distributors were peculiarly susceptible. Accordingly, I am convinced, and therefore find, that Respondent discharged Roxie Tesh on October 28, 1965, after over 6 years' employment because of her known union membership and numerous activities on behalf of the Union, and in order to discourage other employees from such membership and activities in violation of Section 8(a)(1) and (3) of the Act. 5. Maxine Holcomb a. The facts Maxine Holcomb's employment with Respondent began in January 1955 and ended with her discharge on November 19, 1965. She signed a union authorization card in April 1964 and became active in soliciting other employees to sign cards, distributing union literature and attending union meetings. Her name was one of those submitted in the letter from the Union to the Respondent on June 8, 1964, as an active member of the Union. Respondent sent Holcomb a copy of its answer to this union letter. Her union activity was thus known not only to Respondent but also to her foreman, Thurman Binkley, who on one occasion in June 1965 told her, in answer to her question as to how her work compared with that of the others, that if she would leave the Union alone she would not have to worry about her job.41 On July 27, 1965, the pairers engaged in the sitdown strike because of the change in their work duties and because Respondent had abandoned the practice of permitting them to see their weekly quality and production reports which affected their pay as they were all paid on a piecework basis. 41 Binkley denied having made this remark but Binkley's credibility was suspect 42 Sometimes spelled Spaniard in the record 43 This was only the fourth written warning which Holcomb had received during her 10 years' employment 44 This was the first time Holcomb had ever heard of a batch of Holcomb was elected as a representative of her line and along with 16 other such elected representatives, including Tesh about whom Binkley also testified, met with various Respondent officials, including Hanes, Waggoner, Frederick, and Young, over a period of several days trying to settle this strike. At one of these meetings Young claimed that some employees contended that they were not being represented correctly because some of the elected representatives were members of the Union. Young then requested all such union representatives to raise their hands. Although disputing the claim of misrepresentation on the grounds that the employees knew them to be prounion before electing them as such representatives, Holcomb and Tesh raised their hands at this time along with others. Because of her part in the strike Holcomb appeared on a local television station as one of the spokesmen for the strikers. During the strike Holcomb passed out leaflets at the gates. Her picture doing so appeared on the local television station. On August 12 Holcomb with Tesh, Gentry, Infinger, Logan, and Hazel Boles among others passed out leaflets for the Union at the lower gate of the plant. Three or four days later, or about August 16, Holcomb was sent to the office where she found Binkley and Forelady Spainhour42 who showed her a batch of work which had "picks" in the hose. Binkley asked Holcomb to sign a warning slip which stated that it was Holcomb's "final warning." Holcomb refused.43 On November 19, 1965, Binkley came to Holcomb's table and ordered her into the office where Assistant Foreman Harris and Supervisor Spainhour had already gathered. Binkley told Holcomb that he had had the count off department check a batch of Holcomb's work44 and that the check showed the work to have been very bad with numerous picks in the hose. He displayed the bad work to Holcomb who admitted that the work was not passable but maintained that many of the picks looked as though they had been made after leaving her as well as questioning whether the work was hers although the traveler on the batch of stockings tallied with her daily record.45 However, Binkley informed Holcomb that she was terminated for the unsatisfactory quality of her work. The termination slip signed in Frederick' s name on November 22, 1965, stated the cause of discharge as "discharged-quality unsatisfactory." On November 22 Holcomb returned and saw Frederick and Waggoner. She requested her job back on the ground that they knew as well as she that she had been discharged for her union activities and not because her work was unsatisfactory. Frederick answered that the foreman had said that her work was bad and that "it would stand as that." Holcomb then requested the right to see Hanes as provided for in the Respondent's new grievance procedure of August 8. Frederick said that it would do no good to go any further but, when Holcomb insisted , said that he would make an appointment for her with Hanes. Holcomb was thereafter never notified of any appointment made for her with Hanes. Nor has she been reinstated. stockings being inspected in the count off department and the first time that she had ever heard of Binkley going to the count off department to pick up a bundle of work 45 The traveler is a paper ticket which travels with a lot of 24 dozen stockings It is not fastened to the lot of stockings HANES HOSIERY DIV. 51 b. Conclusions Thurman Binkley testified about the instant discharge the day following his testimony regarding the "defiance of him" allegedly displayed by employee Tesh. During his testimony about Tesh, Binkley proved to a loud, arrogant, and discourteous, as well as unreliable, witness. The following day, while testifying about his discharge of Holcomb, Binkley, perhaps as a result of overnight advice or, perhaps, the character he was about to play, was a soft- spoken, courteous, and complete humanitarian who had suffered the shortcomings of Holcomb for many long years because of her alleged home difficulties so that he was, in his words, "real embarrassed" that he had put up with Holcomb so long. He proved himself the complete Thespian. This sudden and complete reversal of character overnight did not prove convincing for other reasons. Binkley testified in vague and general terms that Holcomb's work had been "very poor" since early 1964, which coincided almost exactly with the time Holcomb became prominently active on behalf of the Union. According to Binkley, he had to speak to her about her poor work at least twice a month thereafter and had to return poor work to her "3 to 1" over any other operator in his department. Also she had been absent a great deal of the time due to sickness and other misfortunes. Binkley testified that he retained her despite her poor work only because of her innumberable problems at home, sickness, her husband being out of work, etc., and because she begged so hard to be permitted to retain her job. It was a heart-rending tale-as Binkley told it. Binkley did become specific in his testimony that on Wednesday, November 17, before her discharge the following Friday, some work of Holcomb's had been returned from the count off department, where it had somehow gotten without having been inspected as it should have been in the pairing department. Binkley had then had it specifically reinspected during which an unacceptable number of "picks" were discovered.46 After this special inspection Binkley took the lot of work to his superintendent, Young, and it was then decided to discharge Holcomb at the end of the week so that Holcomb's supervisor, Spainhour, could be present. It was at this time that Binkley felt "real embarrassed" at having retained Holcomb so long. During his testimony Binkley was full of vague, indefinite details about how Holcomb had many times pleaded that she would do better if Binkley would only allow her to continue working during this 1964-1965 period, and how, at the time of her discharge, Holcomb thanked him for having kept her at work so Iong despite her poor work and her numerous absences-all of which was denied by Holcomb. Binkley even testified, from memory as usual, how Spainhour had suggested at some indefinite time, probably in 1964, that she required help in improving the quality of Holcomb's work and suggested taking action against Holcomb at that time-which, according to Binkley, he refused to do at that time because of Holcomb's many trials and tribulations. As so frequently occurred in this case, Respondent did not call Spainhour as a witness nor account for her absence. Again I must draw the clear inference from this failure, particularly as Spainhour, the immediate superior of Holcomb. must have known the facts regarding Holcomb's work at least as well as Binkley. In the light of his other testimony above referred to, it was surprising to hear Binkley admit, also from memory, that Holcomb's earnings throughout this period were only "just" below the average earnings of the employees of the department. This admission, secured on cross- examination, tended to discredit the prior Binkley testimony. The evidence further showed that in the pairing department Respondent maintained a little black book containing a single sheet for each individual employee upon which for a 6-month period Respondent recorded that employee's individual quality and production quality and production report on an individual sheet. After 25 weeks, a 6-month period, these individual record sheets, according to Binkley, were removed from the black book and destroyed. This occurred on July 1 and January 1 of each year. The sheet from this black book on Holcomb's quality and production for the period July 1, 1965, to December 31, 1965, would have been rather conclusive as to which version of Binkley's testimony was to be believed. The sheet was not produced. According to Binkley, the Holcomb record of some 19 consecutive weeks was "probably" destroyed on January 1. 1966. Thus Respondent destroyed this record some 5 weeks after the charge regarding Holcomb had been filed on November 24, 1965, at which time Respondent knew that it would have to defend the Holcomb discharge on the basis of allegedly poor work, a fact which these records could have proved or disproved. Holcomb was paid on a piecework basis. Her payroll record would thus reflect both the quality and quantity of her work. Federal law requires the retention of such payroll records. The payroll records for Holcomb were not produced. In the light of all these circumstances I can only find, and hereby do, that Holcomb was little, if any, worse than the average worker in the pairing department and that Respondent has failed to prove that it discharged Holcomb after 10 years of apparently satisfactory employment because of the poor quality and quantity of her work or for cause. The facts here show that Respondent did in fact begin a "firing spree" on August 23, 1965, among those known union adherents who had the temerity to distribute union leaflets at the plant gates the evening before. Holcomb was one such distributor. Four days later, August 16, Binkley presented Holcomb with a written "final warning" slip, only the fourth written warning Holcomb had received during her 10 years of otherwise apparently satisfactory employment. Binkley was obviously preparing the way for the unique inspection of November 19, 1965. I am convinced by all the facts that Respondent discriminated in regard to the hire and tenure of employment of Maxine Holcomb on November 19, 1965, because of her known membership and activities on behalf of the Union and in order to discourage such membership and activities among its employees in violation of Section 8(a)(3) and (1) of the Act. 'fi This corroborates the testimony of Holcomb that she had never heard of this procedure before. 298-668 0-69-5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. John Matt Davis a. The facts When Respondent discharged John Matt Davis on December 31, 1965, Davis had been employed by Respondent for a total period of 12 years with approximately the last 10 years of employment being as a fixer. In 1961 when Davis was the fixer on line 22, it is undenied that Paul Hemrick, then the knitting foreman who subsequently became the knitting superintendent, complimented Davis on the way Davis had improved the line. In November 1963 Hedgecock, knitting superintendent, also took occasion to compliment Davis on his work.47 Davis joined the Union in March 1964. He became chairman of the organizing committee, attended union meetings, solicited employees in the plant and at their homes as well as distributing leaflets at the plant gates. In December 1964, the Regional Office of the Board located in Winston-Salem dismissed a charge filed by the Union alleging the discharge of one Dale Dumont to have been discriminatory. Davis, Lewell Gentry, and a few other employees expressed their disapproval of this action by picketing the offices of the Regional Office in downtown Winston-Salem, an action which received TV and newspapers coverage which included the names of the picketing employees. In addition the Union submitted Davis' name to Respondent by a letter as an active union member. The evidence _proved, and I find, that Respond- ent well knew of Davis' union membership and activities. About February 1965, Davis was moved with line 102 from the Weeks plant to the Ivey Avenue plant as the fixer on the first shift. On June 11, 1965, it is undenied that George Dowell, then foreman over line 102, came to that line as Davis was taking the first stocking of the shift off the machine in order to check the sizes. Dowell informed Davis that they had to do something about the looper lines. Davis asked what was wrong with them stating that they looked all right to him and handed Dowell the stocking he had in his hand as proof. Dowell then added with emphasis that "they had chewed him out until he was sore, and he was tired of it, so that he was going to chew somebody else, he was going to pass it on." Davis pointed out that his looper lines were all right and that he had had no complaints about them. Dowell thereupon replied, "I had had my orders" and departed. According to Davis, Dowell thereafter watched line 102 very closely until he retired a month later because of his health. Dowell was succeeded as foreman by Dillard Shermer. Shermer testified positively that line 102 was "bad" in June 1965, i.e., "below 97 percent" production, and thereafter got progressively worse- until it became one of the better lines in the plant immediately following Davis' discharge. This outburst by Dowell and the testimony of Shermer are most surprising for the only production records produced at the hearing prove that Davis' first shift on line ' Neither Hemrick nor Hedgecock denied this testimony of Davis. 11 Respondent did not call Hedgecock as a witness and Shermer was not asked to testify regarding this incident. Nor was the written reprimand introduced at the hearing. 49 According to the testimony of Shermer it was early in 102 for the week of June 4, 1965, was producing at 97.91 percent of production, at 98.71 percent for week of June 11, and at 98.98 percent for the week of June 18, whereas the production average for the plant was at that time only 97 percent, according to Shermer. It thus appears that Dowell must have been given these "orders" and "chewed out" about the first shift on line 102 about something other than the production of that line on that shift. It also appears that Shermer's testimony about line 102 first shift was both inaccurate and untrue. Early in November 1965 Shermer called Davis from the line and stated that they were going to have to do "something" about production. Davis answered that production was not in question, that he, Davis, was "best hand" and a good fixer but that "union activities are my trouble." Shermer replied, "I have to write you up for my own protection." The following week Sherman brought a written "warning slip" to Davis and requested that Davis sign it. Davis refused to sign the warning which related to poor production on the ground that "production had nothing to do with it, that it was in the books for me to be fired. That regardless of what I did I would be fired, if it wasn't for production, they would hatch up something else." Davis reminded Shermer of the times that he had complimented Davis on his work and that he, Davis, was working "hard" because he was being watched. Shermer answered, "I know, John, but I have to write you eup for my own protection." A few days later, about November 12, Shermer took Davis to see Superintendent Hedgecock who asked Davis "why" he had not signed the warning. When Davis again pointed out that his production had nothing to do with the warning, Hedgecock countered by saying that Davis was showing "poor cooperation." Davis inquired if they wanted him to quit, "turn in my time," or to say that unless his production increased in 2 weeks that he would quit. Davis reiterated that his " union activities was the cause of the trouble, not my work on the job." Hedgecock said to Davis that his "outside activities could interfere with his work at the plant." Davis denied this saying that "what I do away from the plant is my own business ." Hedgecock answered, "that what Davis did away from the hoisery mill concerning [his work] at the hoisery mill was company business." Davis continued to refuse to sign this slip despite Hedgecock's suggestion that "it was showing poor cooperation with the Company, that [Davis] wasn't cooperating as [he] should." However Davis was sent back to line 102 to "see how things would work out."a" About November 15, Davis took occasion to inform Hedgecock and Shermer that their continuous "riding" and "watching" him was bothering him. Both denied "riding" or "watching" Davis. In Decembers" Shermer brought some stockings to Davis which Shermer and the traveler attached to them at that time indicated were from Davis' shift. The sizes of the stockings were "very bad," or, in Davis ' words, "the worse he ever saw," varying in length from 3 inches long to 3 inches short, a 6-inch variation.'" Davis accepted December, according to Davis about the middle of December. i° The testimony proved that anything within one-half inch of the standard size was acceptable and that variations amounting to 2-1/2 inches were almost never found. This was the testimony by Respondent witnesses. HANES HOSIERY DIV. 53 Shermer's words as to the origin of the stockings but maintained that these variations in sizes were so great that they would have been caught by the knitter and the machine shut down. No written warning was given to Davis on this occasion. It is undisputed that Davis had volumet operator Lewis Mills check his sizes promptly after having been shown his batch of bad work and that the sizes in that check on line 102 were all within one-fourth inch of the correct size and, as such, first quality stockings." Sometime during this period Shermer was called back to work about 5:30 p.m. because the second shift had shut down either 27, 26, or 13 of the 76 machines in line 102.52 At the hearing Shermer blamed Davis for the fact the machines were closed down. However, it is notable that the shutting down of the machines occurred 2 hours after the end of Davis' shift, that Shermer did not give Davis any written or oral warning in regard thereto, that Shermer never criticized Davis for the event before the hearing, and that, as a matter of fact, Davis, having heard of the matter from the third shift fixer the next morning , went to Shermer and asked him about the affair. Under these circumstances it is hard to believe that even Shermer at the time considered Davis to be at fault for whatever actually did occur at that time. On December 29,i'i 2 days before his discharge, Shermer took Davis to the Week's plant to observe the "preboarding" of a lot of stockings which Shermer said came, from Davis' line and shift. Davis accepted Shermer's word for this. Upon arrival Davis picked up the lot and found them to be of first quality length from a visual inspection thereof. Then two preboarding foremen put the lot through the preboarding and baking process. Shermer did not contradict Davis' testimony that the foremen, who were not called as witnesses , appeared to deliberately pull the stockings out of shape in the process. At the conclusion of the process the stockings were not first quality. No written warning was given to Davis. According to Shermer's testimony, another batch of bad work from Davis' shift came back on either December 30 or 31. Shermer immediately spoke to Hedgecock and it was determined to discharge Davis as being responsible for all the bad work on line 102. At the end of the shift on December 31 Shermer again took Davis to Hedgecock who commenced the conversation by again telling Davis that Davis had showed "poor cooperation" and a "bad attitude" in refusing to sign the warning slip of November 12.'" For about 45 minutes Hedgecock reiterated the fact that Davis had failed to "cooperate" and that his "attitude was bad." Davis reminded Hedgecock that Shermer had complimented him on being a "best hand" and one of the better fixers and argued that he was being discharged because of his union activities. 51 Although Mills was called as a witness on behalf of Respondent he was not interrogated about this episode Shermer also testified that Mills reported to him that the sizes on line 102 were running "fair" and that he was only finding bad sizes "occasionally " Mills himself testified that, although line 102 was the "worst" line in the mill for sizing, not very often did he find sizes off more than one-half inch It is noteworthy that Shermer never had Mills do any special sizing work on line 102 52 The date and the number of machines involved in this incident was left very indefinite in the testimony 55 Shermer testified to no date for this incident The above date is that given by Davis 54 Shermer admittedly had only asked Davis to sign one warning slip and that was the occasion on or about November 12 55 These phrases are reminiscent of the Gentry discharge Hedgecock admitted that Davis was a good fixer but claimed that his cooperation was bad, adding that "outside activities could affect his work,"-which Davis denied." After 45 minutes of this sort of futile argument, Hedgecock finally said, "I have said all I can say." Whereupon Shermer told Davis, "John, we will have to let you go." Davis requested permission to see Frederick. On January 4, 1966, Davis saw Frederick who, after hearing Davis' version of the matter, ended all argument by saying, "the foreman's word is final." Frederick then read the reason for the discharge from the termination slip and requested Davis to sign the same. Davis refused on the ground that the reasons stated therein were untrue Davis said that no intelligent person could accept the fact that a man who for 12 years had been "a best hand" suddenly could become the worse and be discharged. Frederick agreed that that was not "logical." When Frederick wrote on the termination slip that Davis disagreed therewith, Davis signed the same.56 Frederick thereupon called Plant Superintendent Waggoner into the office and, when Davis posed his last question to him, Waggoner agreed that "it was not logical." However the discharge stood. When Davis asked to carry his grievance over this discharge to Gordon Hanes as provided in the letter of August 8, Waggoner's answer was "I am the boss " Davis was never permitted to see Gordon Hanes.-" b. Conclusions As against this strong prima facie case of discriminatory treatment by Respondent of Davis, Respondent chose to "prove" its defense of poor workmanship against Davis in large part through the testimony of Foreman Shermer. It is true that Respondent did call the second shift linefixer, William R. Beck, and his knitter, Dean Mathews, and the volumet operator on the first shift Lewis Mills.58 In brief the testimony of each of these amounted to no more than that line 102 progressively went downward productionwise during Davis' tenure as a fixer for reasons none of them knew or was able to ascertain but that, almost miraculously, the troubles in line 102 cleared up immediately after the dismissal of Davis-also for reasons none of them knew. This vague and generalized testimony completely lacking in details and dates was of little or no value. Opinions without factual basis are for the most part worthless. On the other hand on direct examination Shermer testified most indefinitely concerning almost innumerable instances of numerous dozens of bad work having been returned from Davis' shift. In addition Shermer testified, apparently from memory, of instances where line 102 had fallen to "85" or "93 percent" of production. As Respondent's fixers are paid on a production basis, the Perhaps remembering that experience Hedgecock restricted himself to the use of the phrase "outside activities" which, however, equates with "union activities," as used in the Gentry incident 51 This termination slip itself was not produced at the hearing However the report sent by Respondent to the Employment Security Commission of North Carolina gave the reason for Davis' discharge as follows "Discharge-work unsatisfactory Repeated efforts made over a long period of time to get him to improve performance and he failed to do so " 57 Hedgecnck called as adverse witness by General Counsel did not testify in regard to any of the matters found above Frederick and Waggoner were not called as witnesses by the Respondent Hence this part of Davis' testimony remained uncontradicted 58 Referred to in the transcript as "Bannon Mills " 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payroll records of Respondent which under the law are required to be retained by the employer would have easily corroborated Shermer's memory, if that memory had been correct. Respondent chose not to produce the payroll records. The inference from this failure is clear. It is very possible that the production on line 102 fell, as Shermer claimed, to "85 percent" or "93 percent" because on at least two occasions during this period of time under question here Respondent's change crew changed over half the line to "Sewtoe" styles. If there was any unanimity in the testimony in this case, it was that, when the change crew makes such changes in any line, the production of that line falls radically. Shermer's testimony implied that one of these changes, at least, occurred subsequent to Davis' discharge. Shermer's testimony was contradicted by both the other witnesses as well as Davis. Shermer was mistaken. During his testimony Shermer testified that he received numerous lots of from 6 to 8 dozen lots of bad work from Davis' shift which, if the testimony could be believed, were always called to Davis' attention "I think," as Shermer put it. A careful analysis of Shermer's testimony in this regard reduces the number of these alleged instances to the same instances found above based upon Davis' testimony. When requested for times, dates, persons present, and the conversation involved on these numerous alleged incidents, Shermer's memory failed-completely. Shermer appeared to be a most unhappy-and uncooperative-witness when pressed for details regarding these generalized incidents he had so glibly referred to on direct examination. Shermer's credibility had been badly strained by his testimony that as early as June 1965 production on line 102 was less than 97 percent whereas the actual figures of the Respondent, produced by General Counsel, prove that the production on the first shift of line 102 was at that time in fact over 97 percent and thus far above the average for the plant. Even as to the alleged many dozens of bad sizes Shermer claimed he had called to Hedgecock 's attention the day before, or the day of, Davis' discharge which allegedly was the basis for the decision to discharge Davis, it is notable that it is undenied that these bad dozens were not only not shown to Davis on the occasion of his discharge but that neither Hedgecock nor Shermer even mentioned them during the 45-minute discharge interview. It is almost unbelievable that these many dozens of bad work would not have been even mentioned if, in fact, they existed. The testimony regarding this 45-minute discharge interview, as given by Davis, serves merely to confirm and strengthen the prima facie case of discrimination made out by the General Counsel. The facts of this interview as given by Davis, the only witness to testify in regard thereto, remain uncontradicted in this record because Respondent failed to produce Hedgecock as a witness or to have Shermer correct any of Davis' testimony in regard thereto. Thus, during this 45-minute interview neither Hedgecock nor Shermer either produced or even mentioned the alleged bad work which purportedly was the cause of the discharge of Davis. Thus it seems clear that this unproduced and unmentioned work was not the cause of the discharge. On the other hand Hedgecock did spend the 45 minutes fulminating about Davis' alleged "lack of cooperation" in refusing to sign the warning slip that Davis believed to be incorrect, his alleged "bad attitude" towards Respondent and his "outside activities," clear and distinct references to Davis' well-known union membership and activities. Hedgecock's total concentration and concern for 45 minutes with Davis' well- known union activities proves only that the alleged bad work, even if it existed, had little, if anything, to do with Respondent's decision to discharge Davis and that the real and basic reason for the discharge of Davis was Respondent's dislike for Davis' union membership and activities. The undenied Dowell episode in June 1965 suggests the distinct possibility that even at that time Respondent had the name of John Matt Davis on the list of those union adherents who were to be included in the forthcoming "firing spree" but which, in Davis' case, had to be temporarily delayed probably because of the above- mentioned production on line 102 during the month of June, and until Respondent could find some more palatable pretext for the discharge than the alleged poor production in June. Accordingly I am convinced, and hereby find, that Respondent discharged John Matt Davis on December 31, 1965, because of his known union membership and activities in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship 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 It having been found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It also has been found that Respondent discriminated in regard to the hire and tenure of employment of the following named individuals on the following dates: Nora Stewart Infinger August 13, 1965 Betty Bovender Logan August 13, 1965 Fredna Jean Settle August 13, 1965 Lewell Franklin Gentry August 18, 1965 Hazel Hill Boles August 20, 1965 Roxie B Tesh October 28, 1965 Maxine Holcomb November 19, 1965 John Matt Davis December 31, 1965 I shall accordingly recommend Respondent offer each of the aforementioned individuals immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each whole for any loss of pay he may have suffered by reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of his reinstatement, less his net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum Because of the type of unfair labor practices engaged in by Respondent, I see opposition by the Respondent to the policies of the Act in general, and hence I deem it HANES HOSIERY DIV 55 necessary to order Respondent to cease and desist therefrom and from in any manner infringing upon the rights guaranteed its employees in Section 7 of the Act. CONCLUSIONS OF LAW 1. By discriminating in regard to the hire and tenure of employment of the aforementioned employees by discharging each of them on the date noted above, thereby discriminating in regard to their hire and tenure of employment and discouraging union membership and activities among its employees and preventing its employees exercising the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 2. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, Respondent has violated Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing finding of fact and conclusions of law, and upon the entire record in this case, I recommend that Hanes Hosiery Division, Hanes Corporation, Winston-Salem, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging union membership and activities among its employees by discriminating in regard to the hire and tenure of any of its employees, or by discriminating in any other manner in regard to any term or condition of their employment in order to discourage union membership or activities therein. (b) Interfering with, restraining, or coercing its employees in any manner in order to discourage union membership or activities among its employees. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to each of the individuals named below immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each whole in the manner set forth in the section of this Decision entitled "The Remedy": Nora Stewart Infinger August 13, 1965 Betty Bovender Logan August 13, 1965 Fredna Jean Settle August 13, 1965 Lewell Franklin Gentry August 18, 1965 Hazel Hill Boles August 20, 1965 Roxie B. Tesh October 28, 1965 Maxine Holcomb November 19, 1965 John Matt Davis December 31, 1965 (b) Post at its plant in Winston-Salem, North Carolina, copies of the attached notice marked "Appendix "59 Copies of said notice, to be furnished by the Regional Director for Region 11, upon being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained 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 Respondent to insure that notices are not altered, defaced, or covered by any other materials. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payments records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Decision. (d) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply with the foregoing Recommended Order.so I FURTHER RECOMMEND that, unless within 20 days from the date of the receipt of this Decision, the Respondent has notified the said Regional Director that it will comply with the foregoing Recommended Order, the Board issue an Order requiring Respondent to take the aforesaid action. s 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 futthei 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 " 110 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to toad "Notify the Regional Director fit Region 11, in writing, within 10 days from the date of this Oider, what steps 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 union membership or activities of our employees on behalf of Textile Workers Union of America , AFL-CIO, or any other labor organization , by discriminating in regard to their hire and tenure of employment of any of our employees or in regard to any term or condition of employment of our employees because of such affiliation or activity. WE WILL offer the following named employees immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and will make each of them whole for any loss of pay he may have suffered by reason of the discrimination practiced against him together with interest thereon at 6 percent per annum: Nora Stewart Infing-er August 13, 1965 Betty Bovender Logan August 13, 1965 Fredna Jean Settle August 13, 1965 Lewell Franklin Gentry August 18, 1965 Hazel Hill Boles August 20, 1965 Roxie B. Tesh October 28, 1965 Maxine Holcomb November 19, 1965 John Matt Davis December 31, 1965 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization , to form labor organizations , to join and assist Textile Workers Union of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. HANES HOSIERY DIVISION, HANES 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 provisions, they may communicate directly with the Board' s Regional Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911, Extension 392.