Edinburg Manufacturing Co.

EDINBURG MFG. CO. Edinburg Manufacturing Company and Upper South Department , International Ladies Garment Workers Union, AFL-CIO. Case 5-CA-3476. April 26, 1967 DECISION AND ORDER MEMBERS BROWN, JENKINS, AND ZAGORIA On December 6, 1966, Trial Examiner Alvin Lieberman 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision together with 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations. 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 of the Trial Examiner and hereby orders that the Respondent, Edinburg Manufacturing Company, Petersburg, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Trial Examiner: This proceeding, with all parties represented, was heat d by me in The complaint was issued on charges filed by Upper South Department, International Ladies Garment Workers Union, AFL-CIO (herein called the Union). During the trial the complaint was amended in several respects Paragraphs VI(c) and VI(d) were amended by substituting the name "Leota Alt " Paragraph VI(h) was amended by inserting the words "and/or supervisor" between the words "agent" and "of " Finally, paragraph VII was amended by inserting the words "and/or lay off" between the words "terminate" and "the." 2 The General Counsel has moved to correct the stenographic 121 Petersburg, West Virginia, on September 8 and 9, 1966, upon a complaint' of the General Counsel and Respondent's answer. The issues litigated were whether Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). More particularly, the questions for decision are as follows: 1. Did Respondent threaten and coercively interrogate employees and thereby engage in independent violations of Section 8(a)(1) of the Act? 2. Did Respondent create the impression that the activities of its employees in support of the Union were under surveillance and in that manner further independently violate Section 8(a)(1) of the Act? 3. Did Respondent violate Section 8(a)(3) and (1) of the Act by laying off Ersley Whetzel, one of its employees? 4. Are two individuals in Respondent's employ, Nora Park, referred to in the complaint as Nora Parks, and Ronald Berg, supervisors within the meaning of the Act? 5. If Berg is not a supervisor is he an agent of Respondent? Upon the entire record,2 upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the briefs submitted by the General Counsel and Respondent, I make the following: FINDINGS OF FACT'; 1. RESPONDENT'S BUSINESS Respondent, a Virginia corporation having a place of business in Petersburg, West Virginia, is engaged there and elsewhere4 in the manufacture and sale of ladies' and children's clothing. From about July 1965 through June 27, 1966,' a representative period, Respondent sold and shipped directly to customers located outside the State of West Virginia goods valued in excess of $50,000. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (herein called the Board) is warranted Siemons Mailing Service, 122 NLRB 81, 85. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Briefly, this case concerns itself with the Union's efforts to organize Respondent's employees, which began early in 1966, and Respondent's reaction to this. During February, March, and April, the Union held several meetings at the home of Ersley Whetzel, employed by Respondent as a seam closer, and at a firehouse in Moorefield, West Virginia, a nearby town. Also during this period the Union transcript of this proceeding, by substituting the name "Herman" for "Thurman," on various lines and pages. 3 The motion to dismiss the complaint made by Respondent at the close of the trial is disposed of in accordance with the findings and conclusions set forth in this Decision " Respondent also has places of business in Edinburg, Virginia, and in Wardensville, West Virginia The facts in this case, however, relate only to Respondent's Petersburg plant 5 Unless otherwise indicated, all dates mentioned in this Decision fall within 1966 164 NLRB No. 18 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distributed authorization cards among Respondent's employees. The Union's organizational campaign soon came to Respondent's attention and in April Respondent took countermeasures. These, the General Counsel contends, included threatening and interrogating employees, and creating the impression that their activities in support of the Union were under surveillance, all in violation of Section 8(a)(1) of the Act, and, in contravention of Section 8(a)(3) of the Act, laying off Whetzel. Respondent, for its part, asserts that the sole reason for Whetzel's layoff was that there was no work available which she could efficiently perform and denies generally having violated Section 8(a)(1) of the Act. In the latter connection, Respondent further contends that any statements made by its supervisors or agents which may be determined to have been coercive or threatening were quantitatively insufficient to furnish a basis for concluding that they constituted violations of the Act and that, in any event, no employee was actually intimidated. It is also the General Counsel's position that Nora Park is a supervisor and that Ronald Berg is either a supervisor or an agent of Respondent and, accordingly, Respondent is responsible for their conduct. Respondent, on the other hand, urges that neither Park nor Berg has authority to perform any function set forth in Section 2(11) of the Act and that, therefore, both are mere rank-and-file employees, the former an office clerk and the latter a mechanic. Insofar as Berg's agency is concerned, Respondent argues that he is not so closely identified with Respondent's management as to constitute him an agent of Respondent. B. Facts Concerning the Status of Nora Park and Ronald Berg The complaint alleges that Respondent independently violated Section 8(a)(1) of the Act by, inter alta, conduct engaged in by Nora Park and Ronald Berg. In order to ascertain whether Respondent is responsible for their actions a determination must be made as to their status. Nora Park. Park is employed in Respondent's office. In addition to other duties, which include serving as the secretary to Jack Parker, Respondent's plant manager, she performs certain functions in connection with the hiring of employees for Respondent. Thus, she accepts employment applications and interviews the applicants during which she forms an opinion as to their suitability' and makes appropriate comments to this effect on the applications. Parker testified, in this connection, that he "[relies] on her to do this because when [he] first came [to Petersburg he] was a total stranger" and "felt that she was more qualified to interview [applicants]. "it When it becomes necessary for Respondent to hire employees, Park is informed of the number of employee$ needed and the type of work they will be required to do. Park then reviews the employment applications on file in her office. Based upon the qualifications of the applicants and her comments appearing on the forms, she chooses an applicant "that [she thinks] would be suitable for the operation," and recommends to Parker, Respondent's plant manager, that the applicant be hired. Based upon this recommendation, which, as Park testified, Parker "has never gone against," Parker actually hires the person whose application Park has selected. On occasion, Park, herself, without any consultation with Parker, has hired employees. In this regard, Parker testified that he gives Park "certain leeway if she knows the girl, if she has been a former employee and has been satisfactory or if she is an exceptional person."7 Park, in addition, maintains the time and attendance records of Respondent's employees. When these show that an employee has been late more than once in any particular week Park is required to ascertain from the employee the reason for the tardiness and report that reason to Parker." Ronald Berg: Berg has been employed by Respondent as a mechanic since 1962. He is responsible for repairing and maintaining Respondent's sewing machines, and is assisted in this by another employee. Like most of the other persons employed by Respondent he is paid on an hourly basis." From time to time Respondent's supervisors meet with Parker. Berg is present at these meetings, but only when the subject under discussion is the quality of the products manufactured by Respondent. As Parker credibly, and without contradiction, testified in this connection, Berg is called upon to attend these meetings because "the mechanic indirectly is responsible for the quality of [the] machine and how the machine works ... and [Berg is often called] in on these meetings . to make him understand the importance of keeping the machines going properly." In addition to Parker and Berg there are three other men in Respondent's employ. They perform janitorial, maintenance, and shipping duties. Early in 1966, because of a scarcity of work in Respondent's plant , these men, not having much to do, would gather in the vicinity of the production lines and talk to the machine operators. To eliminate this condition, Parker, in their presence, told Berg, as Berg put it, "to see that the men ... keep busy at all times." 10 Since then, whenever Berg saw the other men idling he would find something for them to do." It does not appear, however, that Berg has any authority to enforce his orders in this area. Beyond referring a refusal to comply to Parker, he, himself, seems to be powerless to compel compliance. In the single instance reported in the record in which this occurred Berg made no suggestions to Parker as to disciplinary action and Parker asked for none. On one occasion when it became necessary for Respondent to hire a shipping clerk Parker asked Berg if he knew anyone qualified to do that kind of work. Berg presented Parker with a list consisting of the names of 6 Parker has resided in Petersburg since 1962, whereas Park has been there 19 years and acknowledged that she " [ knows] a lot of people who live in [the] area " ' These findings are based on a synthesis of the testimony given by Park and Parker 8 The findings concerning Park's duties in this respect are based on her testimony 9 Parker, Respondent's plant manager, and Park are the only persons in Respondent 's employ who are salaried 10 Parker's version of his instructions to the employees in question was , in essence , that they were to help Berg, who had too much work to do at the time, when he asked them for assistance Because, in the circumstances, Berg's account appears to be the more plausible one, I accept it as true rather than Parker's 11 Insofar as it may be material , I find that despite his exercise of this function Berg has no privileges which the other men in the plant do not also enjoy EDINBURG MFG CO. three individuals, on behalf of all of whom Berg "gave reference." One of the men named on this list was subsequently employed by Respondent. 12 C. Contentions and Concluding Findings as to the Status of Nora Park and Ronald Berg The General Counsel contends that Park is a supervisor because of her responsibilities in the hiring of employees. Asserting that Berg responsibly directs the work of other persons, the General Counsel argues that he is either a supervisor or so closely allied with Respondent's management as to be considered its agent. In opposition, Respondent urges that Park is merely a clerk who performs all her duties including those relating to hiring under instructions from Parker. Insofar as Berg is concerned, Respondent claims that his authority to direct the work of others is insufficient to bring him within the Act's definition of supervisor and that there is no agency relationship between Berg and Respondent. Regarding Park, it is clear from the evidence that she plays a very large part in hiring employees. She interviews applicants for employment, notes her opinion as to their suitability on their application forms, makes recommendations to Parker as to whether they should be hired, which he "has never gone against," has "leeway" to hire employees, and, exercising independent judgment, has done so without consulting Parker. It is well settled that "the possession of any one of the authorities listed in Section 2(11) [of the Act] places the employee invested with this authority in the supervisory class." Ohio Power Co. v. N.L.R.B., 176 F.2d 385, 387 (C.A 6). As Park effectively recommends the hiring of, and in the exercise of independent judgment herself hires, employees, both of which "authorities [are] listed in Section 2(11)" of the Act, I conclude that Park is a supervisor." The record requires a different conclusion as to Berg .\ There are three possible bases upon which he can be held to be a supervisor. 14 These are (1) his function of keeping other employees "busy"; (2) his having given Parker on one occasion, at Parker's request, a list consisting of the names of three persons, one of whom was subsequently hired, thought by Berg to be qualified to perform the duties of shipping clerk, to each of whom Berg gave a "reference": and (3) Berg's attendance at supervisory meetings. Insofar as the first is concerned it does not appear from the record that Berg's duties require him to do any more than routinely assign work to other employees. Furthermore, it does not appear that he has authority to discipline the employees whose idleness he was directed to check, or effectively recommend that they be 12 The findings with respect to Berg's status are based on a synthesis of the testimony given by Berg and Parker, Respondent's plant manager, which except as noted in fn 10, was mutually corroborative 11 Even absent the independent hiring authority with which Park is invested, the fact that she makes recommendations which Parker, Respondent's plant manager, "has never gone against" would he sufficient to qualify her as a supervisor within the meaning of the Act See, in this connection, Canal Street Hotel Corporation, 127 NLRB 880,883-884. 14 The same considerations which compel my conclusion that Berg is not a supervisor are applicable to the General Counsel's agency contentions 15 In view of this conclusion, I will recommend the dismissal of paragraph VI(h) and the relating portion of paragraph VIII of the 123 disciplined. Accordingly, I cannot , on this score , conclude that Berg is a supervisor . Proctor-Silex Corp ., 131 NLRB 57, 58. With respect to the list of names requested by Parker of Berg, and Berg's "reference," this seems to me to be nothing more than any plant manager might request from any employee or other person in whom he had confidence. It does not, in my opinion , bring that person within the statutory definition of supervisor even if, as in this case, one of the individuals so recommended was subsequently hired . Cf. Brotherhood of Locomotive Firemen and Enginemen, 145 NLRB 1521, 1534; Oregon Teamsters' Security Plan Office, 119 NLRB 207 , 209-211 ; Manson News Agency, Inc., 93 NLRB 1123,1125-26. Finally, Berg's attendance at some meetings also attended by supervisors does not, I feel , endow him with supervisory status, for his presence there was not to participate in discussions or decisions relating to supervision. The limited purpose of Berg's presence at such meetings was, as stated by Parker , Respondent's plant manager, to impress him with the importance of keeping the machines in proper repair so that the quality of the products produced on the machines would not suffer. This is not a function falling within the ambit of Section 2(11) of the Act. Accordingly , I conclude that Berg is not a supervisor within the meaning of the Act , nor is he so closely allied to Respondent's management as to be considered as its agent. t 5 D. Facts Concerning Respondent's Alleged Independent Violation of Section 8(a)(1) of the Act Parker's speech: The complaint alleges that during a 4- day period in April,is Respondent independently violated Section 8(a)(1) of the Act by interrogating and threatening employees and by creating the impression that their activities on behalf of the Union were under surveillance by Respondent. Included among Respondent's assertedly violative acts is a speech made on April 15 to Respondent's assembled employees by Parker, its plant manager. Aside from the question of whether the speech, itself, contained statements which independently contravened Section 8(a)(1) of the Act, its general tenor, insofar as the Union is concerned, casts much light on, and must be taken into account in evaluating, Respondent's other conduct of which complaint is made. In pertinent part, during the course of his speech,i7 which Parker testified was made to allay the "unrest" which he sensed was present among Respondent's employees because they had been on "short time" since the previous Christmas, Parker stated, as he further complaint which alleges Respondent's violation of Section 8(aXl) of the Act by reason of Berg's interrogation of Respondent's employees 16 As set forth in the complaint this period encompassed April 14 through April 17. April 17, however, fell on a Sunday and there is no evidence as to the occurrence of any event on that day. Accordingly, I believe that the reference in the complaint to April 17 was inadvertent, and that April 16 was intended In any event, I shall so construe the complaint 17 In addition to Parker, Leota Alt, one of Respondent's supervisors, and Mary Vance, Ersley Whetzel, and Linda Sherman, all employees, testified as to the substance of Parker's speech To the extent possible I have synthesized their testimony The source of quoted portions will be identified by an appropriate reference in the text or in a footnote 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified, that he "hoped" and "felt" that Respondent "would ... have a good [spring] season" with "plenty of work for everyone" and exhorted the employees to maintain their production and quality levels. He then talked about what he termed the "union problem."18 In this regard he said that he had "specialized information" that Ersley Whetzel ,19 and other employees , including Linda Burke, had been attending meetings at Whetzel's home and at the Moorefield fire hall with Harry Reisling and Mary Shoup ;20 that the employees' attendance at these meetings was their business , but that if Whetzel and Burke were "as interested in the [quality and quantity] of [their] work as [they were ] in having meetings at [Whetzel's] house with Harry and Mary, then [he was] sure [they] could do much better."21 Concerning benefits which the employees might obtain through the Union, Parker stated, as he testified, that the Union "could" make "fantastic promises of $3 or $4 an hour," but that no employer in the industry "paid ... that type of wages." Alluding to a wage increase which had been given to the employees of a local tannery after their organization by a union , Parker said that they had received "a five cent raise ... but what did it amount to."22 While still on the subject of the "union problem," Parker, in his words, asked the employees "to feel free to bring" their "problems" to him and if they were "reluctant" to do so personally to avail themselves of the services of a committee elected by an employee club. Parker concluded his remarks on this score by telling the assembled employees that because of "these problems" Respondent sometimes lost "good operators ," citing, as an example, the case of Geraldine Thorn, a former employee, who, as Parker put it, had quit "because of pressure from home that we had to have a union in order for her to work."23 Respondent's interrogation, Threats, and Other Conduct Parker, Respondent's plant manager, not only discussed the Union publicly, as set forth above, but also did so privately with two employees, Mary Vance and Viola Schrieve. 1" This characterization is Parker's. is Whetzel's layoff later that day is alleged by the General Counsel as having been violative of Section 8(a)(3) of the Act 20 Neither Reisling nor Shoup was called as a witness by any party to this proceeding As to their identity, however, Park, who is Parker's secretary and who , I have concluded , is a supervisor, testified that Reisling "is supposed to be involved with the Butcher Union"; Whetzel testified that Reisling was instrumental in organizing a tannery located in Petersburg , and Parker, that "anybody in Petersburg usually thinks when you mention a union of Mary Shoup or Harry Reisling " 21 The quoted material appearing in the text at this point, except for the expression "specialized information ," is taken from Parker's testimony Mary Vance, an employee who heard the speech , attributed the use of that term to Parker Her testimony in this regard was not contradicted by Parker and was corroborated by Whetzel , who testified, similarly, that Parker said he had "specified information " about the meetings 22 This finding is based on Vance's credited and undenied testimony i1 Parker testified that the basis for his statement as to Thorn was a rumor which he had heard 21 Vance admitted that at the time her production had, in fact, been lower than usual. 25 These findings are based on Vance 's undemed testimony On April 14, the day before his speech, Vance was asked to go to Parker's office. There, Parker asked Vance whether union cards were the cause of her low production24 and whether she knew "anything about the meetings at Moorefield with Harry [Reisling] and Mary [Shoup]." Although Vance had, in fact, attended the union meetings at the Moorefield fire hall, had signed a union authorization card, and had distributed such cards to other employees , she denied having done so, and suggested to Parker that she was being charged with such conduct because her husband worked in a "union shop." Parker replied that he had "nothing against unions" and had "mighty good union friends."25 On the next day, several hours before he made his speech, Parker, Respondent's plant manager, spoke to Schrieve.26 As soon as Schrieve entered Parker's office, he asked her whether she "wasn't afraid she would get [herself] in trouble." When Schrieve told Parker that she did not understand him, Parker , in essence , suggested that she was lying and asked her whether she was "guilty."27 Beginning to suspect that Parker 's questions resulted from his belief that she was involved with the Union, Schrieve told him that she was not interested in it; that she had been asked by Whetzel to sign an authorization card, but had refused to do so; and that she had not attended the union meetings. During Schrieve's denial of any relationship with the Union, Parker, without stating that he did not have the Union in mind when he asked her about getting into "trouble," again suggested that Schrieve was lying, and told her that he "knew about [Ersley Whetzel's] little meetings." Althougn not too clear as to sequence, at one point during their conversation Parker said to Schrieve that if a sufficient number of employees wanted a union they could have it."28 Park, who I have concluded is a supervisor, and Leota Alt, an admitted supervisor, also spoke to employees about the Union. Insofar as Park is concerned, about the time of Parker's speech she had a conversation with Darlene Turner, a machine operator in Respondent's employ.29 Park asked Turner whether she signed a union card and Admitting that he discussed the Union with Vance, as she testified, Parker stated that lie asked Vance and other employees about their relationship to the Union in order to determine the extent of "this general problem " 26 Like Vance, Schrieve also heard Parker's speech 27 This question was prompted by Schrieve's offer to tell Parker whether she was "guilty" if Parker clarified his reference to "trouble " 2s These findings are based on Schrieve 's credible testimony. Although Parker admitted knowing that Whetzel favored the Union , he denied that lie mentioned her name during his conversation with Schneve He did not deny any other part of Schrieve's testimony concerning her interview with him , stating merely in this connection, that his recollection of it was "muddled." In view of this, and of Schrieve's demeanor on the witness stand I credit her testimony in its entirety 29 Although my findings as to the conversation between Turner and Park are based on Turner's testimony , Turner was unable to fix the time of this conversation with certainty She stated, however, that it occurred shortly before a layoff in the springtime Inasmuch as many of Respondent 's employees had been laid off during the week of April 18, and the entire factory was closed on April 22, 1 find that the conversation between Park and Turner took place on April 14 or 15 EDINBURC MFG. CO. 125 whether she "knew what the union was." Upon receiving a negative reply to both questions Park told Turner that "we had one of the nicest plants and ... a nice cafeteria [and] the plant is one of the nicest ... around here for someone to work in.1"30 At the time of her conversation with Park, Turner had been steadily employed by Respondent since February. In addition to this period of employment, Turner had previously worked for Respondent from October 1, 1964, until July 1,1965. At about the time of her conversation with Turner, Park also spoke to, Thurman Smith, who was then employed by Respondent as a shipping clerk. On April 14, as Smith was returning from lunch, he called on Park for, as he stated , "a social visit." During their ensuing conversation Park told Smith, who had attended one of the union meetings , that "Fooling around with the union could get ... an employee in trouble." The foregoing is Smith's version of his conversation with Park. Park's account is somewhat different. She testified that on the day in question she took advantage of her after lunch "chat" with Smith to ask him, as she was required to do, why he had been late for work; that Smith told her that Harry Reisling stopped him on his way to work every morning and talked to him; and that she thereupon told Smith that "he might get ... involved in trouble by not reporting to work on time." In view of Reisling's reputation, as Parker, Respondent's plant manager, testified , of being, in essence, "Mr. Union" in Petersburg,31 I find that, analytically, there is no substantial distinction between the two versions. Whichever one is accepted, their import is the same. Both refer to "trouble" and both have reference to a union as the source of the "trouble," one expressly, and the other with reference to a name, which, in the community, is virtually a synonym for union. The last conversation between one of Respondent's supervisors and an employee concerns Leota Alt and Linda Sherman, who, at the time, was employed by Respondent as a sewing machine operator. On April 16, the day after the speech made by Parker, Respondent's plant manager, which was heard by Sherman, Alt, who Respondent admits is a supervisor, told Sherman that although Parker, in the course of his speech, had stated that Linda Burke had attended a union meeting in Moorefield, he had intended to say that she, "Linda Crist" (Sherman's maiden name), had attended the meeting. The fact is, as Sherman credibly testified, that Burke had not attended any union meeting, whereas Sherman had. During the same conversation Alt asked Sherman if she had signed a union card and whether Whetzel or Vance, both of whom were employed by Respondent, had given such cards to her. Upon Sherman's refusal to answer either question Alt, with respect to the latter, stated that "It must have been Mary Vance, because we kept a close tab on her."32 Berg, who I have concluded is a rank-and-file employee, spoke to about 10 other employees about the Union and three times reported to Parker, Respondent's plant manager, his opinion that certain employees favored the Union. I find, however, that Parker neither asked Berg to inquire among the employees as to their attitudes toward the Union, nor did he request Berg to make reports to him concerning this matter. I likewise find that Parker did not direct Berg to discontinue his activity in this regard, telling Berg, on those occasions when Berg brought information to him only, that he was already aware of what Berg had reported. E. Contentions and Concluding Findings as to Respondent's Alleged Independent Violations of Section 8(a)(1) of the Act As noted above, the General Counsel contends that Respondent violated Section 8(a)(1) of the Act by its interrogation of, and threats to, employees and by creating the impression that their activities in support of the Union were under surveillance. Respondent, in support of its denial that it violated Section 8(a)(1) of the Act, argues that no threats were made; that whatever interrogation is disclosed by the record was not coercive; and that the evidence is insufficient to support the General Counsel's contention with respect to surveillance. Respondent argues further that if it be concluded that Respondent is chargeable with violative threats or interrogation their incidence was too isolated to warrant consideration by the Board and that, in any event, no employee was intimidated. Section 8(a)(1) of the Act is violated by an employer who engages in conduct which, in the language of the statute, operates "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." Interrogation of employees as to their activities in support of a union, contravenes Section 8(a)(1) of the Act only when it is coercive. Blue Flash Express, Inc., 109 NLRB 591. On the other hand, threats of reprisal for supporting a union are, in and of themselves, coercive and hence violative of Section 8(a)(1) of the Act. Hendrix Manufacturing Company, Inc. v. N.L.R.B., 321 F.2d 100, 105 (C.A. 5). The same section of the Act is also violated by an employer who creates an impression among his employees that their activities on behalf of a labor organization are under surveillance because such conduct tends "to restrain and interfere with the ... exercise of their rights guaranteed under the Act." Mitchell Plastics, Incorporated, 159 NLRB 1574. Taking the last item first, I find that Respondent plainly fostered the impression among its employees that their attendance at union meetings and their signing and distribution of union cards were being closely watched by Respondent. This was made clear by the announcement made by Parker, Respondent's plant manager, during his speech to the employees that he had "specialized information" concerning their union meetings; by Parker's expression of incredulity when Schrieve, an employee, denied having had anything to do with the Union and his 10 Park testified that she renumbered her conversation Willi Turner but did not recall talking to her about the Union Park admitted, however, that she might have done so ii Park testified that she (lid not know of Reisling' s reputation at the time of her conversation with Smith In view of Parker's testimony and the fact that Park has lived in Petersburg for 19 years and acknowledged knowing "a lot of people who lived in [the] area," I do not believe her testimony in this regard it All denied asking Sheunan about union cards With respect to [hie Crist-Buike matter Alt, in effect, put the shoe on the other foot saying that it was Sheinian who asked her why Parker had meant Crist when he said Burke and that all she said in response was "Is that so " Because of their demeanui while testifying and because Sherman can be classed as a disinterested witness, having, under apparently amicable circumstances , resigned from Respondent 's employ in August, I credit her rather than All 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement to her that he "knew about [Ersley Whetzel's] little meetings"; by Parker's response to Berg that he already had the information which Berg was bringing him concerning the attitudes toward the Union of the employees whom Berg had questioned ;33 by Alt's statement to Sherman , an employee , that Parker, during his speech had intended to say that she rather than Burke, another employee , had attended a union meeting; and by Alt's admission to Sherman that "a close tab" was being kept on Mary Vance, an employee, suspected by Respondent of distributing union cards. Insofar as interrogation is concerned, I have no hesitancy in finding , on the record in this case, that Respondent queried employees concerning the Union and their relationship to it . Briefly, the evidence , in this connection , shows, and I have found , that Parker questioned Vance and Schrieve , Park questioned Turner, and Alt questioned Sherman . 34 The issue is whether the interrogation of these employees was violative of the Act because it was coercive , as the General Counsel contends, or, as urged by Respondent , untainted , in that regard and, hence, not an unfair labor practice. As I stated above (sec. D , ¶2) Respondent 's conduct must be evaluated in the light of Parker's speech. By referring, during his talk , to the "union problem," by telling employees that it would be "better" if they were as interested in their work as they were in attending union meetings, by asking them to bypass the Union in connection with their "problems ," by suggesting that the Union would be unable to fulfill its promises, and by implying that the Union was the cause of employees' quitting their jobs , Parker's hostility to the Union became manifest . When viewed in juxtaposition with Parker's speech demonstrating his animosity to the Union, which immediately preceded or followed the interrogations, their coercive nature becomes apparent . Lindsay Newspapers, Inc., 130 NLRB 680 , modified on other grounds 315 F.2d 709 (C. A. 5). I also find that the questioning of the employees concerned violated Section 8(a)(1) of the Act even when considered without reference to Parker 's speech. Thus, Parker's interrogation of Vance as to her knowledge of union meetings included a question as to whether her low production was caused by union cards. In the context of the entire conversation between Parker and Vance, Parker's tying a question as to production deficiencies with union activity, together with the suggestion , implicit in such a question , that the former was the result of the latter, restrained Vance in the exercise of her right to support the Union as guaranteed in Section 7 of the Act. Insofar as Schrieve is concerned, Parker, Respondent's plant manager, seems to have adopted a different tack. Letting her believe that he thought she favored the Union and that his questions concerned her involvement with the .it Having concluded that Berg was not a supeivisoi of Respondent's agent. I further conclude that Respondent is not liable fox his conduct Not can I find, on this record, that Respondent IS answerable lot Berg's conduct on the tlieoiy that it encouraged Beig to continue his practice of uiteiugating employees concenung then relationship to the Union and iepoxtiug his findings to Parker On the contraxy. I find that, if anything, Beig; s efforts tin this regard were discumaged by the nature of Parker's response to Berg each time Beig repotted to limn Cf httuiai EnoelopeCoiporation, 130 NLRB 1574, 1576-77. CronNecrtle Conipiini, 96 NLRB 456, 478. I do find. however, that Respondent availed itself of the urforniation which Berg brought Union, Parker asked Schrieve whether she wasn't afraid of getting herself into trouble and whether she was guilty. By equating Schrieve's supposed support of the Union with trouble and guilt, Parker's questions, if not actually threatening, were coercive in nature . See, in this 'connection, Continental Motors, Inc., 145 NLRB 1075, 1076.35 Park, who I have found to be a supervisor, interrogated Turner as to whether she had signed a union card and as to her knowledge of the Union. At the same time Park told Turner that Respondent's plant was "one of the nicest" in the area for a person "to work in," and had "a nice cafeteria." Park's statement, otherwise gratuitous inasmuch as Turner, who at that time had been in Respondent's employ for an overall period of about a year, was capable of forming her own opinion in this regard, was, as I construe it, a not too latent threat that the advent of the Union would operate to destroy the "niceness" of Respondent's plant and cafeteria. Susquehanna Broadcasting Co., 139 NLRB 1294,1295. The threat, being intrinsically coercive, imparted a coercive nature to the interrogation which it accompanied. Continental Motors, Inc., supra at 1076, 1079-80; N.L.R.B. v. General Shoe Corporation, 207 F.2d 598 (C.A. 6). Alt, one of Respondent's supervisors, interrogated Sherman as to whether she had signed a union card and as to the identity of the person who had given her the card. During the same conversation, Alt also indicated to Sherman that Respondent, in violation of Section 8(a)(1) of the Act, as I have found, was keeping under surveillance its employees' activities in support of the Union. Considered in the context of this unfair labor practice, I find that Sherman's interrogation by Alt was coercive within the meaning of Section 8(a)(1) of the Act. Janiel, Inc., 129 NLRB 1191, 1197. In addition to the foregoing "interrogation" violations of Section 8(a)(1) of the Act, I find that Respondent also violated that section of the Act by Park's thinly veiled threat to Turner, discussed above, and by her threatening statement to Thurman Smith that an employee could get in trouble by "fooling around with the union." Continental Motors, Inc., 145 NLRB 1075, 1076.36 Respondent aigues, by way of avoidance, that should the conclusion be reached that Respondent did in fact interrogate and threaten employees, its conduct, in this regard, was isolated and that no employee was actually intimidated. These arguments are not well taken. With respect to the former, it can hardly be said that interrogation and threats which involve five employees, two supervisors, and Respondent's plant manager is isolated. Harbison-Fischer MaituJactunng Co., 131 NLRB 885, 888, enfd. 304 F.2d 738 (C.A. 5). With respect to whether any employee was actually intimidated by Respondent's conduct, it is well settled that a finding that to Packet tin pnnuoting the idea among its employees that then union activities weie undei surveillance " It will be ienienibeied that Paik and Alt ate supeivnsots Paikei's statenient to \ ance that lie had "nothing against Unions" and that lie had "nughts good union fiends." and has ieniaik to Scbnese that if a sufficient nunibei of ennploiees wanted a union "they could have it" do not. ui nn opuuun. measure up to the safeguards descibed by the Boaif III Blue Flash Express, hic , 109 NLRB 591.592-593 '" I would come to the same conclusion e',en if Pat k's %ei lion of hen conversation with Snuth is accepted EDINBURG MFG. CO. 127 an employer violated Section 8(a)(1) of the Act is not dependent upon a showing that employees were actually coerced. As stated by the Court of Appeals for the Fifth Circuit, "The test is whether the [conduct] tends to be coercive, not whether the employees are in fact coerced." N.L.R.B. v. Cameo, Inc., 340 F.2d 803, 804, fn. 6, cert. denied 382 U.S. 926. Accordingly, I conclude that Respondent independently violated Section 8(a)(1) of the Act by coercively interrogating employees concerning their activities in support of the Union, by threatening them for supporting the Union, and by creating the impression that their activities in support of the Union were under surveillance. F. Facts Concerning Respondent's Alleged Violation of Section 8(a)(3) of the Act Ersley Whetzel entered Respondent's employ in 1963. Her layoff, which is alleged in the complaint as having been violative of Section 8(a)(3) of the Act, occurred on April 15. Before that Whetzel's most recent layoff was from April 1 through April 13. During February, three union meetings were held in Whetzel's home. Present at these meetings were several employees of Respondent, representatives of the Union, and two residents of Petersburg, Harry Reisling and Mary Shoup, who were neither representatives of the Union nor employees of Respondent.37 In March, Whetzel attended two union meetings in Moorefield, an adjoining town. Also during February, Whetzel distributed union cards to Respondent's employees and obtained signatures to 10 or 12 such cards.38 At the time of her layoff on Friday, April 15, Whetzel and seven other employees worked as seam closers. There are 16 sewing machines which seam closers operate. Eight of these are Union Special Safety Stitch machines and eight are Wilcox & Gibbs Superlock machines (herein respectively called Union Special and Superlock machines). As Whetzel admitted, she could operate the Union Special machine more proficiently than she could the Superlock. During the afternoon of Friday, April 15, Whetzel was informed by a service girl39 that she "was laid off until [she] was called back."40 Departing from the usual practice in such cases, the service girl did not inform Whetzel of the reason for her layoff. Instead, she referred Whetzel to Parker for an explanation. Whetzel, accordingly, went to Parker who told her that he did not know why she was being laid off. During hei conversation with Parker at this time Whetzel told Parkes that "if he thought [she] was having meetings at [her] house with Mary [Shoup] and Harry [Reisling] he was making a mistake." Parker replied, as Whetzel testified, that "it was too close [to] home."4i Although Whetzel was not so informed at the time of her layoff, Parker, Respondent' s plant manager, testified that she had been laid off on Friday, April 15, because all work available during the following week had to be performed on the Superlock machine which Whetzel could not efficiently operate; that no seam closers worked on Monday, April 18, because there was no work at all for them to do; that although all other seam closers were recalled and worked on Tuesday, Wednesday, and Thursday, April 19, 20, and 21, Whetzel was not recalled because of her lack of efficiency in operating the Superlock machine; and that Respondent' s entire plant was closed for lack of work on Friday, April 22. Although it is Parker's testimony that Whetzel had been laid off because no Union Special work was available during the week of April 18, there was, as he ultimately admitted, and as I find, a substantial quantity of such work actually done that week. Parker's estimates as to the amount of this work varied from 75 to 100 dozen reordered garments. This, he stated, would provide a day's work for one employee. Regular, as opposed to reordered, work to be performed on the Union Special machine became available during the week of April 25, and Whetzel was notified on April 26 to return to work the next day. She did not do so, however, because she was scheduled to enter a hospital that day for surgical treatment and so informed Respondent. She was, thereupon, placed on sick leave and was still in that status at the time of the trial.42 In view of Parker's testimony as to the reason for Whetzel's layoff it is appropriate to take note of Respondent's policy in this area. Parker stated, in this regard, that during "a slack period" Respondent " evened out the work ... as much as possible, depending [on] the efficiency of the girls operating the machines that do the job." G. Concluding Findings Concerning Respondent's Alleged Violation of Section 8(a)(3) of the Act Although it is well settled that an employee who, as Whetzel did, engages in protected activity is not thereby immunized from layoff for a legitimate reason, it is equally well settled that where "the explanation of the [layoff] offered by the respondent fails to stand under scrutiny" an inference can be drawn which is unfavorable to Respondent. N.L.R.B. v. Dant & Russell, Ltd., 207 F.2d 165, 167 (C.A. 9). The court which decided Dant & Russell 17 See In 19 for a discussion concerning the identity of Reisling and Shoup 18 'T'hese findings are based on Whetzel's credible, uncontradicted testimony 39 As Parker, Respondent's plant manager, testified , service girls, among other things , give work to the operators No contention is made by any party to this proceeding that service girls are supervisors 40 Whetzel was notified of her layoff several hours after Parker's speech in which he stated , as I have found , that he had "specialized information " concerning the union meetings in Whetzel's home , and that if Whetzel was as interested in her work as she was in having meetings she "could do much better." 41 These findings are based on Whetzel's testimony which was, except for that relating to the meetings , corroborated by Parker. Although Parker denied that he and Whetzel talked about the meetings, I credit Whetzel in this regard, l du this not only because Whetzel impretsed me favorably as a truthful witness, but also because experience teaches that an employee laid off without being given a reason during the heat of a union organizing campaign would normally conclude that the layoff was related to the Union's organizing efforts and , for the purpose of having the layoff rescinded, would seek to dispel in the mind of the employer any notion that the employee was a union supporter . Expecially would this be so where, as in this case, the unexplained layoff follows hard on the heels of an antiunion speech made by the employer in which he had singled out the employee in question and had stated, in a derogatory manner, that he knew about union meetings held in the employee's home. 42 In its brief Respondent represented that Whetzel returned to work on October 3. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spelled out, in a more recent case, the extent of the inference which can be drawn in such a situation. In Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9), that court stated with sharp explicitness: If [the trial examiner] finds that the stated motive for a [layoff] is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where ... the surrounding facts tend to reinforce the inference.43 Although Parker, Respondent's plant manager, testified that Whetzel was laid off on April 15, because only Superlock work was available the following week, the fact is that there was a substantial amount of Union Special work to be done.44 I find, therefore, that the stated motive for Whetzel's layoff is false. Having so found, I draw the inference, as did the Trial Examiner in Shattuck Denn with Board and court approval, that the actual motive for Whetzel's layoff was to discourage membership in the Union. Also, as in Shattuck Denn, the "surrounding facts tend to reinforce [this] inference." Thus, Whetzel appeared to have been the stauchest advocate of the Union among Respondent's employees. Only hours preceding Whetzel's layoff Respondent's plant manager in a speech to its employees demonstrated his hostility to the Union, which was then engaged in an organizing campaign among Respondent's employees, and derogatorily singled Whetzel out for holding union meetings in her home. Whetzel, contrary to Respondent's usual practice, was given no reason for her layoff, but was told at the time by Respondent's plant manager in response to her feeble attempt to deny that union meetings had been held in her house that such meetings were "too close [to] home." Although she had just been recalled to work on April 14, following a 2-week layoff, Respondent did not adhere to its policy of evening out work among its employees during slack periods by recalling Whetzel during the week of April 18, despite the fact that there was work available that week which she could have efficiently performed. Finally, Whetzel's layoff occurred contemporaneously with the commission by Respondent of unfair labor practices independently violative of Section 8(a)(1) of the Act. The foregoing factors strengthen my belief that Whetzel's layoff was discriminatory. Accordingly, I conclude that by laying off Whetzel on April 15, Respondent violated 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 Having found that Respondent engaged in the unfair labor practices set forth above, my Recommended Order 4' This statement of the law was specifically adopted by the Board in Atlantic Metal Products, Inc , 161 NLRB 919, fn S 44 Although the Union Special work involved was merely of 1 will direct Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the purposes of the Act. In this connection, inasmuch as Respondent has already offered reinstatement to Whetzel, Respondent will be required only to make her whole for loss of earnings she may have suffered by the discrimination practiced against her. Any backpay found to be due to Whetzel shall include ipterest in the amount and manner provided for in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature and extent of the unfair labor practices engaged in by Respondent my Recommended Order will contain broad cease-and-desist provisions. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in sections III, D, and III, E, hereof, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By laying off Ersley Whetzel because of her membership in, and activities on behalf of, the Union, thereby discouraging such conduct Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. Respondent did not violate Section 8(a)(1) of the Act in the manner set forth in paragraph VI, h, and the relating portion of paragraph VIII of the complaint. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this case I hereby issue the following: RECOMMENDED ORDER Edinburg Manufacturing Company, its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their, or other employees ', activities in support of, attitudes toward, attendance at meetings of, or membership in, Upper South Department , International Ladies Garment Workers Union , AFL-CIO , or any other labor organization , or concerning their , or other employees, having signed a card , or distributed cards, designating or authorizing Upper South Department, International Ladies Garment Workers Union , AFL-CIO, or any other labor organization , to act as their, or other employees', representative for purposes of collective bargaining. (b) Threatening employees with trouble or any form of reprisal for becoming members of, attending meetings of, supporting, or engaging in activities on behalf of, Upper South Department , International Ladies Garment Workers Union, AFL-CIO , or any other labor organization, or for signing a card , or distributing cards, designating or authorizing Upper South Department , International Ladies Garment Workers Union , AFL-CIO, or any other day's duration, it looms large when compared with the brevity of Whetzel's layoff which encompassed an operative period of only 5 days EDINBURG MFG. CO. labor organization , to act as his, or any other employees, representative for the purposes of collective bargaining. (c) Engaging in, or attempting to engage in, or giving the impression that it is engaging in, surveillance of its employees' activities on behalf of Upper South Department, International Ladies Garment Workers Union, AFL-CIO, or any other labor organization. (d) Discouraging membership in Upper South Department, International Ladies Garment Workers Union, AFL-CIO, or any other labor organization, by discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, 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 as guaranteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment in conformity with Section 8(a)(3) of said Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the National Labor Relations Act, as amended: (a) Make Ersley Whetzel whole for any loss of earnings she may have suffered by reason of the discrimination practiced against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll reords, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its premises in Petersburg, West Virginia, copies of the attached notice marked "Appendix." 45 Copies of said notice, to be furnished by the Regional Director for Region 5 of the National Labor Relations Board, shall, after being signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that such notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith 46 IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. 45 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 46 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify the Regional Director , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 129 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 coercively question any employee about his, or any other employees', desires toward any union; or whether he or any other employee has signed a card, or distributed cards designating or authorizing any union to act as his, or any other employees', collective-bargaining representative; or whether he, or any other employee, has become a member of any union; or whether he, or any other employee, has attended a union meeting; or whether he, or any other employee, has supported any union in any other way. WE WILL NOT threaten any employee with trouble or any form of reprisal for attending a union meeting; for joining, or remaining a member of, any union; for signing or distributing union cards; or for supporting, or engaging in any activities on behalf of, any union. WE WILL NOT spy upon, attempt to spy upon, nor will we give the impression that we are spying upon, any employee's activities on behalf of, or in support of, any union. WE WILL NOT discourage membership in Upper South Department, International Ladies Garment Workers Union, AFL-CIO, or or any other union, by laying off or by discriminating against any employee in any other manner in regard to his hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce any employee in the exercise of his rights guaranteed by the National Labor Relations Act. WE WILL make Ersley Whetzel whole for any loss of earnings she may have suffered by reason of her layoff of April 15,1966. All our employees are free to become , remain , or refrain from becoming or remaining, members of Upper South department, International Ladies Garment Workers Union, AFL-CIO, or any other union, except to the extent that this right may be affected by the provisions of the National Labor Relations Act. EDINBURG MANUFACTURING COMPANY (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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland 21202, Telephone 752-8460, Ext. 2100.