Phillips-Van Heusen Corp.

Phillips-Van Heusen Corp. and Amalgamated Clothing Workers of America, AFL-CIO. Cases 15-CA-2784 and 15-CA-2784-3. May 31,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On January 11, 1967, Trial Examiner Frederick U. Reel 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 these allegations be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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, with the following modification: The Trial Examiner found that the layoff of Myrtice Donaldson was not violative of Section 8(axl) and (3) of the Act. We do not agree. From the evidence before us, we think it clear that she lost her job because of her union activities. Mrs. Donaldson joined the Union in August 1965. The Respondent was well aware of her union sympathies. When Donaldson and some other employees protested the "partiality" shown against them by one of the group leaders, her supervisor informed her that somebody had told him that she was "for the Union." Mrs. Donaldson was an employee of long standing, having worked continuously for the Respondent since 1952 except for a period of 16 months in 1957-1958 when she was unable to work because of illness. She was also one of Respondent's more versatile workers, having worked, during her employment with Respondent, at 11 different operations. In prior years, except for a brief period of 3 weeks in 1963, she had not been laid off during the seasonal layoffs, but instead had been given work at some other operation at which she had acquired skill. As late as 2 weeks before her layoff she was assured by Supervisor, Snyder that when layoffs occurred she would be transferred to the group working on collars. Nevertheless, on November 17, 1965, she was told that the Respondent had nothing for her to do and was laid off. She was assured, at this time , that as soon as something was available she would be recalled. In February 1966, Mrs. Donaldson contacted Snyder and was told that it would be some time in April before she could be reemployed. And on April 4 the Respondent recalled another employee, Marceille Austin, who had been laid off with Donaldson in November 1965. Donaldson was not recalled although Snyder requested it because, according to Respondent, her hostile attitude at her "exit interview," at the time of ^ her layoff in November, had earned the enmity of Personnel Director Reeder. On May 13 she visited the Respondent's office and again applied for employment. Snyder told her that, he had nothing for her to do, and on this occasion, in contrast to his prior conversation with Mrs. Donaldson, he told her that he did not know whether he ever would have employment for her. When she asked to be trained on a new operation she was refused. She then asked Snyder for a recommendation so that she might obtain employment elsewhere. Snyder agreed and entered the office of Personnel Director Reeder. Shortly thereafter Reeder came out of the office and told Donaldson that any recommendation he would give her would not be one which she would want to show anyone. On these facts we are convinced that Donaldson was laid off in November 1965 because of her union activities . Her long period of service, her varied skills , and the fact that she had not been selected for layoff in prior years persuade us that she was chosen because of her union sympathies. The Respondent contends that the failure to recall her was because of her "belligerent" manner at the exit interview conducted by Reeder. But obviously this had no bearing on her layoff since that decision had been made prior to the interview. Moreover, unlike the Trial Examiner, we do not'believe that her statement at the exit interview , to' the effect that she hoped to be able to find another job and did not intend to return to Respondent's employment, would generate such bitter hostility in Reeder that he would not permit her reemployment 4 months later, particularly when her supervisor specifically requested her. On the contrary we find that the refusal to rehire her for this reason was pretextual and this reinforces our belief that her layoff in November was caused by her union activities. We find, therefore, that the layoff and the subsequent failure to recall employee Donaldson was in violation of Section 8(a)(1) and (3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor 165 NLRB No. 11 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Phillips-Van Heusen Corp., Geneva, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Paragraph 2(a) is amended to read: "(a) Offer to reinstate Grace Eldridge, Mary McGowin, and Myrtice Donaldson to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them and Minnie Lou Parrish, Sebie Lee Hughes, and Loreen Shiver whole in the manner described in the portion of the Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suffered by reason of the discrimination against them." 2. Paragraph 2(b) is amended by adding the name of Myrtice Donaldson. 3. The first indented paragraph of the attached notice is amended to read: WE WILL offer Grace Eldridge, Mary McGowin, and Myrtice Donaldson their former jobs and pay them and Minnie Lou Parrish, Sebie Lee Hughes, and Loreen Shiver for wages they lost as a result of their discharge or delayed recall from layoff. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This case, heard in Geneva, Alabama, on October 24-27, 1966, pursuant to charges filed the preceding February 14 and April 29 and a complaint issued July 21, presents questions as to whether Respondent, herein called the Company, exceeded permissible limits in its efforts to prevent the Charging Party, herein called the Union, from organizing at the Company's Geneva plant, and whether the Company in laying off or discharging any or all the 11 employees named in the complaint was motivated in so doing by the employees' support of the Union. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by the Company and by General Counsel, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The pleadings establish, and I find, that the Company, a corporation authorized to do business in Alabama, operates a men's shirt factory in Geneva, from which it annually ships products valued in excess of $50,000 to points outside the State, that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the I Typographical errors in the transcript have been noted and corrected. Y Snyder did not testify as to when he began this practice, but by October 11, 1965, when he interviewed Mildred Adams, he Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Even before the Company was aware of any organizing effort among its employees at the Geneva plant, it had embarked on an antiunion campaign designed to prevent any union from successfully organizing the employees. Thus, Cecil Reeder, who became personnel manager on July 13, 1965, testified that he did not learn of any union activities until September 3, 1965; and Ed Snyder, supervisor of the sport shirt department since March 1965, testified that he first heard of the organizing efforts in August or September. Yet Snyder also testified that when he interviewed applicants for employment he usually told them that "we don't feel the'Company needs a union in this plant."' And Reeder testified that beginning in July 1965, at each of his weekly "gripe" meetings attended by supervisors and by a number of employees (different employees each week), he regularly set forth the company policy of opposition to union organization even though the subject of "unions" was not otherwise raised in any of the meetings prior to September 1965. Notwithstanding their employer's opposition, however, a number of employees, during the period between April and October 1965, signed union cards and engaged in other activities promoting the Union's efforts to organize . This case concerns primarily the discharges or layoffs of 11 of these prounion employees. The question with respect to each is whether the Company in discharging or laying her off was motivated in significant part by the employee's union activity (as General Counsel contends) or whether the Company's action arose from the employee's poor work or low production or from the annual seasonal need to lay off surplus help (as the Company contends). We turn first, therefore, to a discussion of the 11 alleged discriminatees, and then to a consideration of other company conduct alleged in the complaint to interfere with, restrain, or coerce employees in the exercise of their statutory rights. B. The Discharges and Layoffs 1. Grace Eldridge The Company hired Mrs. Eldridge in 1951 or 1952, and she worked for 6 to 7 years in various jobs including pressing cuffs and center fronts and creasing pockets and collar bands. Following an extended absence caused by an illness followed by pregnancy, she returned to work in January 1959. From then until her discharge on September 7, 1965, she performed such operations as examining and notching collars, turning and stitching collars, creasing bands, hemming and sewing on patches, and other work where she was needed; her experience included performing 14 separate, operations, and experience in every department. She was absent because of pregnancy for 5 or 6 months early in 1962, and missed 1 or 2 months late that year and again in 1964 because of illness. The Company contends that on two occasions, once in 1960 or 1961 and again in 1963, Eldridge walked off the job without notice. Eldridge testified that on the first "hoped" he had acquired sufficient experience in this matter so that he could tell from the interview whether the applicant was for or against a union PHILLIPS-VAN HEUSEN CORP. occasion she had left at lunch time because of a sick baby; she reported this to the plant manager that afternoon; he told her to come back as soon as she obtained a babysitter; and she did as directed. On the second occasion Eldridge advised her supervisor at 9 or 10 a.m. that she was leaving.' Eldridge signed a union card about July 1, 1965. On the morning of Friday, September 3, she and nine other employees went to the office of Plant Manager Martin, where with Eldridge acting as chief spokesman-they advised Martin that they had signed union cards. Martin told the 10 employees that he was "surprised," and questioned them as to whether they knew what having a union would mean, why they were in favor of it, and how much money it would take out of the city and State. The plant was closed for the Labor Day weekend of September 4, 5, and 6. On Tuesday afternoon, September 7, the first working day after the meeting in Martin's office, Ed Snyder, Eldridge's supervisor, advised her that she was being laid off "for two or three days" for lack of work. Eldridge has since made repeated efforts to get employment with the Company, but without success. On two occasions in September 1965, when she returned to look for work, she saw Barbara Anderson, an employee from another department, operating her machine. In September and again in February she indicated to the Company a willingness to take employment in the laundry, but her applications were refused, and on the latter occasion Snyder told her the Company "wasn't hiring in the laundry." Finally in May 1966, she saw Plant Manager Martin, and asked him for a job. Her testimony continues: I told him I needed to go back to work, I needed to work. He said that I was a real good operator but he said, you know, you have messed yourself up. I said how? And he just kept repeating, you know that you messed yourself up. He again told me I was a good operator but I messed myself up. Martin admitted telling Eldridge that "she had messed herself up." According to Martin, he referred to Eldridge's having "walked out of the factory twice without warning whatsoever." On cross-examination Martin was unable to place one of these episodes in time, stating that it occurred prior to his arrival, and "remembered" that the other occurred "shortly after [he] came on shortly before," but at any rate in 1963. Eldridge in her previous years with the Company had been laid off only once because of slack work, and on that occasion her supervisor had sent for her to return when work resumed. The record shows in the year following Eldridge's discharge the Company hired over 70 employees for the "operating" department in which Eldridge had had wide experience and over 90 for the laundry. The Company contends that under a new process it has no need for Eldridge's services as a band creaser, and more specifically that when band creasing is done in her old department (sport shirts) Supervisor Snyder uses Barbara Anderson, who is one of three band creasers employed in the dress shirt department. This testimony is somewhat hard to reconcile with other testimony of Snyder that-except for emergencies caused by absences-only one employee. Clemmens, who bands 3 The record does not indicate how long Eldridge was off the job on this occasion, except that she clearly was reemployed by 1964, when she lost 2 months because of illness 4 Of the 10 employees who went into Martin's office in a group, 5 are alleged to be subsequent victims of discrimination, 2 3 collars, is interchanged between his department and the dress shirt department. Eldridge had been employed for several months creasing bands with the "new" process. Snyder also testified that he had no reason to doubt that Eldridge could do 14 operations in the plant. He volunteered that he had a "lot of girls who can do it," then said he had "one in particular," and finally stated that he could "name two or three." On the foregoing facts I find that the Company discharged Eldridge because of her union activity This discharge occurred the first workday after Eldridge had been the spokesman for 10 employees who apprised the plant manager of their support of the Union. His reference, months later, to the fact that Eldridge "had messed herself up," I find referred to her union activity, and not to episodes which occurred years before, particularly as at least one of them and perhaps both had antedated the plant manager's own tenure. In the light of Eldridge's long and varied experience with the Company (and her statement that she always "made production" stands undenied), the Company's failure to retain her or transfer her to some other job is all but incomprehensible on any basis other than resentment over what appeared to be her leadership of the union group. 2. Mary McGowin Mrs. McGowin, who had been among those accompanying Eldridge on the September 3 meeting in Martin's office, was discharged on October 28,4 2 weeks after she and Joyce Driggers (whose layoff on November 1 is discussed below) handed out union leaflets at the door of the plant. The Company contends that McGowin's employment terminated because the seasonal change to short-sleeve production necessitated a layoff of cuff sewers and McGowin's production rate was low. McGowin was employed by the Company in March or April 1960, and worked for 4 years in the cutting department, after which she transferred to the dress shirt department as a "final examiner." In April 1965, after a year as a final examiner, she asked to be trained as a machine operator, and was given the job of sewing cuffs which she held (with occasional transfers back to final examining when she was needed there) until October 28. McGowin's support of the Union was outspoken and known to the supervisors, culminating in the leaflet distribution on October 13 when Plant Manager Martin remonstrated with her, stating, "Mary you can't do this," to which she replied, "Yes, I can, Herb. I am on the outside and it is after 4:00 o'clock Here, have one." When McGowin's supervisor, Cecil McDuffy, notified her on October 28 that the Company had no more cuff sewing for her to do, he urged her to get a job elsewhere, stating that the Company did not wish to keep her because of her low production. _ Again on November 8, when McGowin, accompanied by Joyce Driggers, applied to Plant Manager Martin for work, including laundry work if available, Martin told them they would not work there anymore. On November 16, when McGowin again sought employment, McDuffy told her she was fired, a view confirmed to her that day by Personnel Director Reeder, by Works Manager George Lindenmuth, who was superior (including McGowm's husband) later quit voluntarily, and 3 have had continued employment at the Company since that date Cf N L R B v {G C Nabors Company, 196 F.2d 272, 276 (C A. 5), cert denied 344 U S 865, Nachman Corp v N L R B , 337 F 2d 421, 424 (C A 7) 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Snyder and McDuffy in the company hierarchy, and by Plant Manager Martin. McDuffy testified that McGowin averaged only $1.17 per hour or 8 cents below the required minimum, the lowest of any of the cuff sewers, and that three others similarly employed were laid off shortly after McGowin. All but McGowin, however, were recalled to work in the spring of 1966. McDuffy admitted that McGowin was the only one of the group he told to look for a job elsewhere, but he explained that the others had made production minimums. Asked "how many [experienced] employees have you told to go look for another job because they were low producers," he replied, "several of them that were not making production," but under further prodding he could name only two. Although the circumstances may give rise to the suspicion that McGowin's termination on October 28, 1965, was the result of her outspoken support of the Union, I find that in view of the evidence as to her low production and of the need for cutting back on cuff sewers the General Counsel has not sustained his burden of proof that the Company acted unlawfully at that time in laying her off. But the Company, as will appear, had a practice of rehiring its laid-off employees,5 and McGowin had given several years of apparently satisfactory service in other departments. Moreover, in the spring and summer of 1966 the Company hired new employees as "final examiners," work which McGowin had performed before her transfer to a sewing job. On this record, I find that while the Company had lawful cause for laying McGowin off, it was McGowin's aggressive prounionism which led the Company to set its face against ever reemploving her. Accordingly, I find that by discharging McGowin, rather than merely laying her off, the Company violated Section 8(a)(3) and (1) of the Act. Of course, any backpay due McGowin would start to run only from the time when she would have been recalled, a date which can be settled in "compliance" proceedings. See N.L.R.B. v. Cambria Clay Products Company, 215 F.2d 48, 56 (C. 6), and cases there cited. 3. Joyce Driggers, Myra Phillips, Minnie Lou Parrish, and Sebie Lee Hughes These four employees, although laid off and offered recall on different dates, jointly present a difficult issue in this case, the extent to which their layoffs were occasioned by the Company's mistaken belief, reflected in a formal warning notice to each of them that they had engaged in union activity during working time. On October 14, 1965, Personnel Director Reeder read to each of these employees separately, and thereafter placed in their respective personnel folders, the following notice, signed by him: This is to advise you that we have definite information that you have been harassing a fellow worker talking about labor unions during work hours to the point of interfering with this fellow worker's efficiency of production. We are giving you notice that such activities and discussions during work hours will not 5 Indeed, it was official company policy to give "preferential consideration to former employees with a good record of service and of attendance " Company booklet, "You and Your Company," G C Exhs 3 and 6, p 14 Compare Judge Learned Hand's succinct observation , "Seasoned men are better than green hands," N L.R B v. Remuigton Rand, Inc., 94 F 2d 862,872 (C A 2), cert denied 304 U S. 576, 585. be tolerated, and that any further incidents of this nature will result in your dismissal. Each of the employees at the time of receiving the notice, and again (except for Hughes) on the witness stand, denied having engaged in the alleged harassment during working hours. The Company introduced into evidence an unsworn statement signed by an employee attributing such harassment to the four employees, but this establishes only that the Company had a basis for believing them to be guilty; on the record before me there is only hearsay opposed to their competent testimony of their innocence. If, therefore, the Company's belief that any of them engaged in misconduct contributed in any significant part to any of the decisions to lay any of them off, the layoff was unlawful, under the test established inN.L.R.B. v.Burnup and Sims, Inc., 379 U.S. 21. But the company witnesses steadfastly maintained that the selections for layoff were made without regard to the warnings or to the personnel files. As the warnings were issued in mid-October and the layoffs ranged from November 1, 1965 (Driggers), to January 14, 1966 (Phillips), the timing gives some support to the company testimony, which might otherwise be suspect in the light of the Company's open hostility to the Union. Moreover, as will appear below, a similar warning was given union adherent Barbara Shirah on October 20, 1965, but her employment was not affected until her discharge in February and she was rehired in April. On the other hand, when employee Parrish was recalled to work on May 2, 1966, Personnel Director Reeder expressly cautioned her against carrying on union activities during working hours (an offense she again denied ever having committed), and it would not seem unreasonable to infer that if this subject was brought up by the personnel manager at the time of recall, it had played some role in the selection for layoff.6 Considering the four employees separately, the first to be laid off was Joyce Driggers, who was laid off November 1, 1965, and recalled on April 25, 1966. Driggers had enjoyed intermittent employment with the Company since 1953, having worked for 11 months that year, for a period in 1954-1955, for 9 months in 1958, for a year in 1959, and from May 31, 1965, to November 1, 1965. In all these periods Driggers' job had been that of "final examiner." She was outspoken in her support of the Union, and had often made her views known to company supervisors. Shortly after she had been warned for allegedly soliciting during working hours, Driggers had occasion to ask Personnel Director Reeder why he was so opposed to the Union. In the course of their discussion, according to Driggers, Reeder urged her to get her card back and to work for the Company as hard as she was working for the Union, adding that if she did not get her card back "the Company has no choioe but to fire you." Reeder corroborated Driggers as to much of the conversation, but denied making any statement about her regaining her card or about her being fired if she did not. The credibility issue here is a difficult one; Reeder himself twice referred to Driggers' attribute of sincerity, and this quality was manifest on the witness stand. On the other hand, it seems highly unlikely that Reeder would openly 6 Reeder corroborated Parrish as to his introduction of this subject at the time of her recall . Parrish also attributed to Reeder a statement at this interview that she had been selected for layoff because of her union activity, but Reeder denied making such a statement and the probabilities of the situation lead me to credit his denial and to find that Parrish misconstrued his remarks. PHILLIPS-VAN HEUSEN CORP. threaten to discharge an employee for failure to withdraw from the Union. I am inclined to think that Reeder did urge Driggers to transfer her allegiance, and that he mentioned getting her card back, but that the threat to discharge was unspoken and represented Driggers' interpretation of the end to which Reeder's comments were directed. Triggers was laid off on November 1, a little over 2 weeks after she and Mary McGowin openly distributed union leaflets at the plant doors. On November 1 Driggers' supervisor, Snyder, told her that she was being laid off because "short sleeves were coming in and they just didn't need [her] any more." Snyder also referred at that time to Driggers' difficulties in "making production," although he admitted that she had done so the last few weeks. Snyder then sent her to Works Manager George Lindenmuth for an interview, in the course of which Lindenmuth asked her "off the record" why she was "working for the Union so hard." A brief discussion of the Union then ensued in the course of which, according to Driggers, another employee, Mildred Adams, entered the room in tears and Lindenmuth, after asking Adams to wait outside, replied to Driggers' question as to why Adams was being fired, "I don't know, she is not for the Union."7 Lindenmuth concluded the interview by saying, "I have to do what they tell me to do." As noted above, Driggers accompanied McGowin to the plant on November 8 in an unsuccessful effort to obtain reemployment, and Plant Manager Martin told them to find jobs elsewhere as they "wouldn't be working there any more." However, late in April 1966, about 2 months after a charge was filed in her behalf, Driggers was reemployed. Driggers admitted on cross-examination that the Company customarily laid off final examiners in the fall and recalled them in March or April. Records introduced by General Counsel establish that no final examiners were hired during the period Driggers was out of work. She also admitted that except for the last few weeks in the fall of 1965 she had failed by rather small margins to "make production"; i.e., her piecework earnings were slightly less than the statutory minimum wage. Driggers' supervisor, Snyder, testified that she, Wanda Jackson, and Sebie Lee Hughes were the three lowest producers and that he selected them for layoff for that reason, but the Company produced no records to document this assertion.8 Driggers' case seems as "close" as any I have ever encountered. Her vigorous espousal of the Union's cause, the Company's open hostility to the Union, the warning erroneously issued to her, the reference to those warnings when Parrish was rehired, the observation of Lindenmuth in the final interview anent Adams' discharge-these factors, among others, would support a finding of discriminatory motivation. Moreover, we know that "Motive is a persuasive interpreter of equivocal conduct," (Texas & N.O.R. Co. v. Brotherhood, 281 U.S. 548, 559), and also that it is permissible to draw an inference adverse to the Company from its failure to produce substantiating records concerning Driggers' comparative production. 5 N.L.R.B. v. Wallick, 198 F.2d 477, 483 (C.A. 3)-citing 2 Wigmore, Evidence, §285; see also United States v. Johnson, 288 F.2d 40, 45 (C.A. 5), and cases there cited in footnote 4. As against all this, however, stand the stark facts that Driggers' sole experience was as a final examiner; she admittedly did not "make production" for much of her employment; her layoff and recall dates coincided, according to her own testimony, with the normal slack period; and no one was hired in her place. On balance, I conclude that in my judgment General Counsel did not establish Driggers' case by a preponderance of the evidence (the standard binding upon me), although I recognize that reasonable minds could differ on this and that a contrary finding would find substantial support in the record. Minnie Lou Parrish was laid off on November 26, 1965, and rehired on May 2,1966. She had been employed by the Company since 1950, and since 1962 or 1963 had been primarily engaged in inserting cuffs. She testified that she was "in and out" during the winter months when the Company was producing short sleeves but that prior to the winter of 1965-1966, she had never missed more than 2 to 3 weeks at a time, as she would be called in to hem short sleeves, set plackets, and do repairs. When Parrish returned to work in May 1966 she was given a new timecard; on previous occasions when she returned, her old timecard had been in the rack. Parrish, as noted above, had received a warning on October 14 for soliciting for the Union during working hours, and vigorously denied that she had done so, both at that time and again on the witness stand. Also as noted above, Personnel Director Reeder referred to this matter when Parrish was rehired. According to Parrish's supervisor, Snyder, he laid her off along with Loreen Shiver (discussed infra) and Vivian Cullifer (not identified as a union adherent) because with the advent of short sleeves he did not need cuff inserters, and they, unlike his other cuff inserters, were not experienced on other available work. He testified: Q. What happened to the other cuff inserters that you had? A. They all moved to different jobs on which they made production. Q. Could you tell us why these other girls were moved to these other jobs and Vivian Cullifer and Minnie Lou Parrish and Loreen Shiver were not moved but were laid off? A. Well, the other girls, as I said, were moved to other jobs because they were experienced on those jobs. Two girls moved to setting pockets. One girl made lapels. One girl was a yoker. Another girl was a sleever. Vivian Cullifer was not experienced in any other job. Minnie Lou Parrish was experienced on other jobs, but we did not perform these jobs at this time. We didn't do this anymore. It was the same case with Loreen Shiver. Q. What job was it that you haven't done that you were speaking of? A. Well, Minnie Lou Parrish set plackets on T Lindenmuth did not recall the Adams episode and specifically denied making the last statement quoted above I credit Driggers, noting that Adams was in fact fired the day that Adams testified to seeing Driggers in Lindenmuth 's office at the time, and that Lmdenmuth might well have forgotten the episode as he did not fire Adams himself, had left the Company 6 months before the hearing, and had no reason to refresh his recollection with respect to Adams who was not named in the complaint as an alleged discnmmatee. s The records that were introduced, dealing with hinngs and layoffs, are hopelessly inadequate So far as they show, for example, Hughes was never laid off or rehired, and Jackson was apparently not laid off until August 1966 The testimony shows that this was a second layoff for Jackson, and that Hughes was laid off in December 1965 and recalled in July 1966. 299-352 0-70-2 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD placket sleeves, and we do not make placket sleeves anymore, or vanapress shirts. She hand beveled sleeves the old way without a folder, and we do not hand bevel sleeves that way anymore. Loreen Shiver also hand beveled sleeves without a folder, and, as I say, we don't do that anymore. She put grippers on fronts, and I don't put-make grippers in my unit on fronts or collars. The records introduced in evidence do not refer to Vivian Cullifer. They do show the hiring on December 28 of an operator to set pockets; of two employees to "folder join" on January 7 and 18, 1966; of an employee to run collars on January 4; and of eight operating employees in March to do such operations as hemming tails and cuffs, banding collars, and running 'cuffs. They also show the hiring of Barbara Steward on April 14 to do the same work from which Parrish had been laid off. On balance I find that in Parrish's case, unlike that of Driggers, General Counsel carried his burden of proving discrimination against her. Her case differs from Driggers' because of Parrish's long tenure, her proven ability to do other jobs besides that from which she was laid off, the hiring of other new employees to do work which, at the least, she could have been trained to do, the difference in the treatment accorded her on this layoff from that in other years-both in the length of the layoff and the destruction of her timecard-and the express reference to her union activity when she was rehired. However, in view of the fact that Parrish had been laid off in other years, her backpay may not run from the date of layoff but may be subject to some diminution, a matter which (as in the case of McGowin, supra) can be settled in compliance proceedings. Sebie Lee Hughes started working for the Company in 1942 during her summer vacations from high school, and worked there full time in 1944 and 1945, from 1953 to 1958, and from 1960 until laid off on December 9, 1965. As noted above, the personnel director read her a written warning on October 14, 1965, arising out of her alleged union solicitation , at which time Hughes told him, "just because [he] had it written down on that paper doesn't make it true." During her employment Hughes, except for a brief period in 1943, had been a final examiner.a In the years preceding 1965, when the Company changed to short sleeves in the fall, she had been given work examining short sleeves. The Company contends that Hughes, Joyce Driggers, and Wanda Jackson were the final examiners laid off in the fall of 1965 when the Company changed to making short-sleeves shirts because they were the three lowest producers. Although no production records were introduced, company counsel implied that Driggers' production was the lowest of the three and Driggers was laid off over a month before Hughes. But Driggers was recalled in April, and the Company hired at least four new final examiners (Peggy Seay, Louise Galloway, and Inez Senn are referred to in the transcript, and Joan Benefield is listed in the exhibits)" between then and the recall of Hughes on July 18, 1966. Ed Snyder, Hughes' supervisor, 0 For 2 weeks before her layoff in December 1965, Hughes had been engaged in repairing shirts made in Puerto Rico This appears to be the work on which Shirah and Driggers were put the following April 10 Benefield and Galloway were both hired May 3, Seay on April 20, and Senn on May 4. Benefield left on May 27 Driggers was rehired April 25 but was not placed on final examining for a week or so, and then in the dress shirt section. testified that he decided to hire Seay and Senn, new employees, because Hughes had not been making production. But this circumstance did not prevent the rehiring of Jackson as well as Driggers. (I note that at the time of Driggers' recall an unfair labor practice charge had been filed in her behalf, whereas Hughes was not named in a charge until after Driggers' recall.) General Counsel makes out a strong case for a finding of discrimination against Hughes at the time of her layoff. In contrast to Driggers, Hughes enjoyed considerable seniority in her department, and in previous years Hughes had not been laid off when the change to short-sleeved production occurred. Nevertheless, and with the same misgivings which I entertain over having sustained the Company with respect to Driggers' case, I find that the December 9 layoff of Hughes was motivated by legitimate economic considerations arising out of the changeover to short sleeves and her production record. I cannot, however, account for the failure to recall Hughes in April and May when new final examiners were hired, on any basis other than her union activity of which the Company was aware, as is shown by Reeder's warning to her the preceding October. While her union activities were less vigorous than those of Driggers, who was recalled at that time, it seems likely that the pendency of a charge in Driggers' case and the apparent need to escape or minimize liability caused the Company to distinguish between Driggers and Hughes. I therefore find that on May 3, 1966, when the Company hired Louise Galloway and Joan Benefield as final examiners, it discriminated against Sebie Lee Hughes because of her union activity. Myra Phillips was hired in March 1965 and proved to be an excellent hemmer of shirt tails, until her layoff the following January. After she had made several fruitless efforts to obtain reemployment, the Company offered a job in July 1966, but by that time she was otherwise occupied. The issue is whether her union activity, of which the Company was aware, including the unfounded warning which Reeder gave her in October 1965, was a contributing factor to her layoff in January or to delay in recalling her." According to Phillips' supervisor, Ed Snyder, Phillips was particularly good at hemming the tails of sports shirts, whereas one Elizabeth Alverson, senior to Phillips in employment, was not qualified at that task but was just as good as Phillips in hemming the tails of dress shirts. Therefore, according to Snyder, he laid Alverson off during the fall of 1965 but in January 1966 when sports shirts "finally ran out," he thought it fair to recall the more senior employee and lay Phillips off. This version, to which Snyder testified, is substantially the same as the explanation he gave Phillips in January. Again General Counsel makes out a strong case, growing out of the Company 's union animus , its knowledge of Phillips' union activity, the somewhat bizarre explanation that her work as a hemmer of sports shirt tails was so appreciably better than Alverson's but that they were equal on dress shirt tails, and the unusual solicitude for seniority which Snyder displayed on this occasion. On " The Company's records, introduced in evidence by the General Counsel, show that Phillips was hired to "hem tails" on February 29, 1966 This entry is simply inexplicable in the light of her testimony, not otherwise contradicted, that she was off the payroll after January 14 1 must perforce disregard the exhibit, the accuracy of which is questionable in other respects as well Phillips is also shown as "separated" in January and again in April; only the first of the separations accords with the testimony PHILLIPS-VAN HEUSEN CORP. the other hand, the explanation, though unusual, was at least consistent, and the action against Phillips occurred 3 months after her alleged union solicitation came to the Company's attention. Perhaps the very originality of the explanation carries its own conviction to me. At any rate, I am not persuaded that General Counsel carried his burden of proof that the layoff of Phillips was discriminatory. 4. Jeanette Teate Mrs. Teate worked at the plant from 1958 to 1964 as a cuff setter or sleeve inserter (i.e., her job was to put sleeves into cuffs), was laid off in the early fall of 1964 when the short sleeves season began, and was recalled in January 1965 to sew silk cuffs. In the late spring of 1965 she was moved to a job as final examiner in the dress shirt department, and she was employed at that work on August 23 when she had to go to the hospital for 1 week. She sent word to the Company that she would be back on September 1, but the Company sent word back that she was not to return until called. On September 3, while still not back at work, Teate joined the group that went to Plant Manager Martin's office and advised him of their support of the Union. After leaving Martin's office that day, Teate went to her supervisor, Cecil McDuffy, and asked if she could go to work. An argument ensued concerning Teate's status, and they returned to Martin's office, where Martin told Teate not to be alarmed as she was laid off every year at this time. Teate continued her active support of the Union during the following weeks, and in October on one occasion handed out union leaflets next door to the factory. On several occasions in November, Teate returned to the plant to seek work. On November 12, the second of these visits, Personnel Director Reeder told Teate, "You won't ever work here again," although 4 days before he had told her she might be recalled in 2 or 3 months. When she remonstrated that neither McDuffy nor Martin had fired her, Reeder replied, "Well, I am in charge of all absentees, and . there is a lot being out of work that will find themselves in the same position you are in." Reeder then told her that she had not been "making production" and "was costing the Company money" so that "they had to let [her] go." He then added that he knew Teate was "following someone else's instructions" by applying for work, and concluded "I don't care whether you like what I say or whether the Union likes what I say or who likes what I say." On Teate's next visit to the plant, on November 16 with Mary McGowin, Plant Manager Martin told them he wanted them to find out what the Andalusia plant had, as "anything they had, Van Heusen had more and better." (The reference apparently was to a shirt factory which the Union had organized in a nearby town.) Reeder also told McGowin and Teate on this occasion: "You just assume you have been laid off. You have been fired all the time." In April 1966, when Reeder arranged for the reemployment of Driggers, he asked Driggers to get in touch with Teate, but at that time Teate was employed elsewhere, and advised Plant Manager Martin that she would not be in. Late the following August Teate accepted reemployment at the Company. 12 Again the records introduced in evidence are so painfully inadequate and inaccurate that their failure to substantiate McDuffy's testimony cannot be taken as definitely repudiating it The records show that Teate was discharged September 20,1965, 7 Cecil McDuffy, Teate's supervisor, testified that Teate and two other final examiners, Clara Cullifer and Judy Whitaker, were laid off in the fall of 1965 and recalled the following spring in a normal seasonal layoff occasioned by the changed from long to short sleeves.i2 Personnel Director Reeder, who apparently was not involved in Teate's layoff in September, testified that he told her when she applied for reinstatement that fall that he "didn't feel she would be brought back." According to Reeder, he "had no intention of bringing her back at the time ... because of her production record, her absentee record, and the fact that several concessions had been made trying to find a job that she could be happy on, and from all apparent sources she was unhappy with all of them where attempt had been made to place her." Reeder testified that Teate was later rehired because her supervisor needed experienced help and said "a few dozen is more than no dozens." On cross-examination, Reeder answered that he did not know whether Teate had "made production" since her return to work. I find and conclude that Teate's layoff in September was for lawful economic reasons. The complaint alleges that she was discharged on November 12, when Reeder told her she would never return to work. I find that in so saying Reeder was motivated by his antipathy to the Union of which Teate was an avowed supporter. But the following April, after the filing of a charge in Teate's behalf, the Company was ready to rehire her, and the proof establishes that no one was hired for her work between the date of her discharge and the date she declined reemployment. No useful purpose would therefore be served by providing any affirmative relief in Teate's case. 5. Myrtice Donaldson Mrs. Donaldson had been employed by the Company from September 1952 to her layoff on November 17, 1965, except for a period of 16 months in 1957-1958 when she was ill. She signed a union card in August 1965. Early in November of that year Donaldson and several other employees went to their supervisor, Ed Snyder, to complain that a group leader, one Snelgrove, had been "showing partiality" against them and had said they were prounion. At this point Snyder said to Donaldson, "Well, somebody had told me you were for the Union." Donaldson replied that they were not there to talk about the Union. Donaldson was laid off on November 17, ostensibly because of the change to short sleeves. Only once before, in 1963, had Donaldson been laid off for this reason, and then only for 3 weeks; in other years she had been moved to other work. At the time of her layoff Donaldson was engaged in hemming cuffs, one of several operations in which she had experience. Another cuff hemmer, Marceille Austin, was laid off with Donaldson on November 17, but was recalled April 4. Donaldson, however, despite several attempts to get work in the winter and spring of 1966 was never rehired, although Snyder told her when she was laid off and again in February that he expected to call her back. In May Snyder told her he did not know when he would call her back, but said that he would write her a letter of recommendation. On this occasion Personnel Director and rehired October 4, 1965, both fictional entries, and as to Whitaker and Cullifer show only that Whitaker was discharged on June 3, 1966. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reeder told her that any letter he would write would be one she would not want to show anyone. Snyder testified, with corroboration by Reeder, that in April 1966 Snyder wanted to recall both Austin and Donaldson, but that Reeder vetoed the latter's recall because of the hostile attitude she displayed during her "exit interview" with him in November, when she said (in what Reeder characterized as a "kind of belligerent" manner) that she never intended to return to the Company. On cross-examination Reeder conceded that Donaldson had expressed the hope that she would find another job and that if successful she would not come back. On this record I find that Donaldson's layoff (along with Austin) in November 1965 was for lawful economic reasons. The question is whether Reeder, when he vetoed Snyder's effort to recall Donaldson at the time of Austin's recall, was motivated by union animus or by irritation over Donaldson's remarks at her exit interview in November. The issue is not an easy one, for Reeder's hostility to the Union was deep, and Donaldson's attitude at the exit interview, as described by Reeder under cross- examination, would strike me as understandable and not calculated to provoke such longstanding resentment. On the other hand, Reeder's capacity for harboring resentment may be considerably in excess of what I regard as average, and Donaldson's union activity appears to have been relatively minor. Also I note that General Counsel had identified, but did not introduce, a notation made by Reeder at the time of the exit interview. Under all the circumstances, I find that General Counsel failed to carry his burden of proof that Reeder's conduct with respect to Donaldson's reemployment sprang from his hostility to the Union. 6. Loreen Shiver Hired by the Company in 1956, Mrs. Shiver continued her employment there, except for a pregnancy leave and other brief absences, until her layoff on November 26, 1965. She signed a union card in the summer of 1965, a fact which the Company already knew on October 18 on which date she advised her supervisor, Ed Snyder, of her union membership. Shiver also refused to sign an antiunion statement circulated by group leader Snelgrove, not a supervisor. Myra Phillips later saw that statement on Supervisor Snyder's desk. On November 26, Shiver's group leader told her that Shiver and Minnie Lou Parrish, like Shiver a cuff inserter, were being laid off for about 2 weeks as the short-sleeve season had begun but two big orders were coming through on which she expected to need them. The other cuff inserters were transferred to other jobs. Shiver returned to the plant on December 3 and asked Snyder if he had a job on any shift for her, but he "just laughed and said no." On some later date in December when she telephoned Snyder he said, "You can keep calling, but as far as I am concerned now, you can get you another job, if you can." In February Shiver saw Reeder without success, and during the ensuing 3 months she called the plant four or five times to no avail, but Reeder finally called her at the end of June and offered her a job effective July 18 which she accepted. The Company's explanation of Shiver's case is that at the time short-sleeve production started in the fall of 1965 several of the cuff inserters were moved to other jobs but Shiver and two others (Parrish and one Vivian Cullifer) were unsuited for other work then being performed. Apparently (and Shiver's testimony confirms that offered by the Company in this respect) other operations Shiver had performed in previous years had become more automated or had been abandoned. I cannot find that Shiver's layoff was discriminatory, particularly in the light of her testimony that Vivian Cullifer, a cuff setter who was also laid off, was an employee of greater seniority and (so far as this record shows) was not a union adherent. The question remains whether the delay in rehiring Shiver was attributable to her support of the Union. Shiver had nearly 10 years of continuous employment, in the course of which she had not only been a cuff inserter but had also set collars, sewed labels, notched collars, closed cuffs, hemmed sleeves (under a former process) and put grippers on collars and fronts (an operation no longer performed in Snyder's sport shirt department). During these years she had never been laid off for any period comparable to the layoff from November 25, 1965, to July 18, 1966. During this period the Company hired, inter alia, a cuff inserter (Stewart on April 14), an employee to hem cuffs (Adams on March 28), several employees to tack sleeves, several employees to run cuffs, an employee to sew labels (Pryor on May 17), and employees to face sleeves. In view of Shiver's experience, it is clear that she performed some of these operations, and in view of the variety of tasks she had done, it is a fair inference that she could have been trained for at least some of the others. I cannot account for the difference in the treatment accorded her in this period from that given her in prior years except on the basis that the Company was less disposed to call her back on this occasion because of her union activity. I therefore find discrimination in the failure to recall Shiver at an earlier date, and leave to subsequent proceedings or negotiations determination of the date on which she should have been recalled. 7. Barbara Shirah Mrs. Shirah had worked for the Company from July 1959 to December 1962, and from August 1963 to her discharge (here in issue) on February 8, 1966. She was rehired April 27, 1966, but quit August 9, 1966, to undergo an operation. Between April 27 and August 9, 1966, however, she was employed at a lower rate of pay than she had previously received. During her employment Shirah had been employed as a final examiner and (at the time of her February discharge) as a skip sampler. Shirah joined the Union early in October 1965, and apprised the Company of this fact some 2 weeks later. Shirah's discharge on February 8 was effected by Works Manager George Lindenmuth, who (in great agitation , according to Shirah) accused her of passing bad work, said he was tired of being blamed for her mistakes, and fired her on the spot. There is some conflict in the testimony as to the extent to which Lindenmuth had previously discussed this problem with Shirah, but she admitted to some criticism about 2 weeks before her discharge. It is also far from clear that Shirah was in fact responsible for not detecting the faulty work with which Lindenmuth confronted her on February 8. Furthermore, as shown below in the discussion of 8(a)(1) violations, the Company was displeased with Shirah for her support of the Union. Finally, in October, 1 week after Personnel Director Reeder had warned Driggers, Parrish, Phillips, and Hughes for alleged union soliciting on company time, he read a similar warning to Shirah , and (as in the case of the earlier warnings) the only competent testimony in the PHILLIPS-VAN HEUSEN CORP. 9 record establishes that Shirah was not guilty of the offense. Notwithstanding these facts, I am of the view that on this record General Counsel has not established that Shirah's discharge in February is attributable to her union activity. Lindenmuth's visible anger on that occasion, whether or not justifiably directed at her, appears attributable to the faulty workmanship he had unearthed. Her union activity had been known for some months, and other opportunities for firing her for questionable work had arisen . Moreover, she was taken back only 10 weeks later, although this may be in part explained by the filing of an unfair labor practice charge in her behalf. As to the alleged failure to pay her her former wages, the record shows that after a few weeks on Puerto Rican repairs she was placed on final examining where the opportunity existed for piece rate earnings in excess of her former wage. The case as to Shirah should therefore be dismissed. 8. Annie Faye Nowling Mrs. Nowling, hired as a button sewer on July 9, 1962, was discharged on March 8, 1966, allegedly for faulty work. On that day her supervisor discovered about 30 dozen shirts on which Nowling had sewed the buttons in the wrong position. Nowling had signed a union card in the summer of 1965, and during that summer her husband (an employee at an aircraft plant in that area) handed out union leaflets in front of the company plant and obtained signatures to authorization cards. The record does not show that any company supervisor saw Nowling's husband so engaged or, for that matter, knew him to be her husband. On the night before Nowling's discharge a union representative visited her at her home. Sometime after Nowling's discharge she told her supervisor, Cecil McDuffy, that she knew why she was fired, and he replied "It wasn't altogether that." Nowling then said that if he wanted to know anything about the Union to asked the Sasser family, a reference which remained unconnected throughout the record. Nowling herself participated in no union activities. Under these circumstances I find that General Counsel has not sustained his burden of proof as to Nowling's discharge. Her union activity was miniscule and there is meager evidence of company knowledge of her support of the Union." The strongest and strangest point in the matter is the cryptic exchange between Nowling and McDuffy after her discharge. He admitted on the witness stand that he told her on this occasion "it wasn't altogether that," but claimed that he was referring to some absenteeism the preceding October as the other factor in addition to the bad work on March 8. This explanation is all but incredible, and gives rise to a suspicion that both McDuffy and Nowling were talking about her union membership as the factor in addition to the allegedly poor work, but on so cryptic a record, it remains a suspicion and gives no basis for a finding. The case as to Nowling must therefore be dismissed. C. Other Interference, Restraint, and Coercion As noted above, the record leaves no room for doubt that the Company had a deep and abiding hostility to the Union's efforts to organize the plant. Hostility to organization is not of itself an unfair labor practice, and the statute expressly permits employers to state their views, arguments, and opinions, providing they refrain from threats or promises. Thus the fact that Personnel Director Reeder was making antiunion statements at the weekly meetings, even before he knew of the attempt to organize and even if the subject was not germane to matters discussed at the meetings,14 establishes no violation of Section 8(a)(1). On the other hand, the discrimination against several employees because of their union activity constitutes unlawful interference, restraint, and coercion, and indeed warrants the issuance of an order interdicting any future violations of Section 8(a)(1) and (3). N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 536 (C.A. 4). The specific additional violations of Section 8(a)(1) found below are therefore cumulative. Conversely the findings that in certain respects the Company has not violated Section 8(a)(1) establish only a failure of proof on this record, so that if in the future the Company should (for example) grant a wage increase to discourage unionism the conduct would violate the order against interference, restraint, and coercion. General Counsel alleged in his complaint over 30 acts of interference by named supervisors as well as discriminatory application of a no-solicitation rule and the granting of benefits to induce employees to refrain from union activity. With respect to some of these allegations, however, General Counsel offered no evidence. I discuss below only those matters as to which General Counsel claims, and I find, some semblance of support. The complaint alleges several acts of unlawful interrogation by Plant Manager Martin. On September 3, when 10 employees led by Grace Eldridge went to Martin's office to advise him they had signed union cards, Martin "said okay" and then "began to ask what the Union could give [them] that the Company had not already granted." Under all the circumstances, I do not regard this inquiry as other than a normal response to a discussion the employees themselves initiated. On October 4 Mary McGowin and another employee went to Martin's office to enlist his assistance in curtailing the activities of one Dolly Daughtry, an employee who McGowin said had been harassing her about McGowin's support of the Union. On this occasion Martin asked McGowin why she felt about the Union as she did, why she wanted the Union, and what she expected to get from it. Although this episode falls closer to the prohibited line in that Martin opened the issue sua sponte, as it were, 'such "interrogation" of an avowed union supporter from management which had made no secret of its hostility to the Union does not in my judgment rise to the level of "interference, restraint and coercion" but is merely the prelude to a legitimate airing of views, arguments, or opinions. I find the scales tip the other way, however, with respect 19 Five months before Nowling's discharge one Faubie Tyler, a rank-and-file employee, mentioned to George Lindenmuth, while he was talking to Barbara Shirah, that "the pocket setters, nearly all of the collar closers, and Mary Clyde Free and Annie Faye Nowling were all for the Union " Lindenmuth had a high regard for the accuracy of Tyler's information , for he told Shirah that Tyler "could pick out who was for the Union Just the same as she could pick out who was pregnant when they walked in . she never misses " But this is too remote in time from Nowling's discharge to shed appreciable light thereon. 14 Reeder's hostility to unions is reminiscent of the elder Cato, who we are told concluded every speech with the phrase "Carthage must be destroyed ," no matter how irrevelant it was to the remainder of his discourse 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the third episode involving Martin, his conversation with Barbara Shirah on October 20. Shirah, who had signed a union card on October 7, told her supervisor, McDuffy, and his superior, Lindenmuth, of this fact on the morning of October 20. That afternoon Plant Manager Martin came to her while she was at work, leaned over her worktable, and said, "I just want to ask you one question: Why?" Shirah inquired, "Why what?" to which he replied, "Why did you do it?" Again Shirah inquired, "Do what?" and Martin answered: "Sign that card." Even if this episode stood alone, I should consider it an infringement of Shirah's right to be free of interference in her union activity. It differs from the other episodes involving Martin in that here he initiated the discussion and the tenor of his inquiry was one of hostility rather than of a mere seeker of information for purposes of legitimate discussion. In any event, the episode did not stand alone. On the same day, Reeder gave Shirah a written warning that she would be discharged for union soliciting during working hours (an offense she denied having committed), and McDuffy came to her and said he was "hurt" that she signed a card for a union run by crooks, hoodlums, and drunks. Lmdenmuth the following day asked her if she slept well at night, adding: "I don't see how, telling us one thing and do another," a reference to her having earlier told management she had not signed with the Union. Thus Martin's interrogation of Shirah, viewed from the standpoint of the employee, was but one in a series of four badgerings to which management subjected her within 24 hours after learning of her signing a union card. And the coercive impact is not lessened by management's awareness that at this time of the year the employees were all concerned as to whether they would be affected by the seasonal change to making short sleeves (see Snyder's testimony anent Donaldson), or by the fact that Shirah, who had returned from 'sick leave in July 1965, had previously told both McDuffy and Martin that her nerves were upset by the harassing tactics of antiunion employees, who had been bothering her at work concerning her alleged union activity and her husband's union activity at another local company. Viewed in context of the entire record, Martin's interrogation of Shirah was coercive and violated the Act. Five employees testified to conversations with Works Manager Lindenmuth which, General Counsel alleges, involved violations of the Act. One of these was Shirah, and as just noted Lindenmuth's inquiry on October 21 as to whether she slept well at night was part of a concerted coercive attack upon her. Employee Patricia Harris testified that in mid-September Lindenmuth approached her at work and said he was surprised at her. Harris "asked him what for, and he said because he had heard that [she] was for the Union." Harris (in response to a leading question directing her attention to union cards, a question I permitted when her recollection appeared exhausted) further testified as follows: I asked him who told him, and he wouldn't tell me, and I didn't tell him that I had already signed one, but I told him I had one and he told me that if I would give him the one I had that he would tell me who told him. Lindenmuth admitted asking Harris whether she thought the Union would benefit the Company, and testified that she denied signing a card, and that he said no more to her. Both Lindenmuth and Harris had left the Company at the time of the hearing. While both may be disinterested witnesses , I am inclined to credit Harris' detailed version, and I regard her as the more likely to have a clear recollection of the episode. The episode smacks of "interference" although it does not fit the Board's pigeon holes of "surveillance" and "interrogation." Lindenmuth had no "business"-no provocation or legitimate occasion-for engaging Harris in a discussion about her union membership. Employees have the right to be left alone in these matters, limited only to management 's right to express views, arguments , or opinions . Lindenmuth on this occasion was not engaging in such permitted activity but in petty harassment, a violation of the Act. On the other hand, I find no violation of the Act in Lindenmuth's "interrogation" of employee Myra Phillips on September 24. On this occasion Phillips called Lindenmuth to her machine and informed him of her union membership. Lindenmuth responded with a series of arguments against organization , and the debate continued in a friendly vein for several minutes. Phillips initiated the matter and in effect invited the discussion, so that my ruling here is similar to that involving Martin and the deputation in his office. Lmdenmuth on this occasion also asked Minnie Lou Parrish her reasons for signing a union card. Parrish, however, had been brought into the conversation by Phillips, and had made her support of the Union known to the Company several weeks before. Lindenmuth's conversation with her, after his opening question, was likewise confined to views, arguments, and opinions. In November Lindenmuth asked employee Daisy Tate whether she had signed a union card, and on her affirmative reply, asked if she wanted to withdraw it. On another occasion Lindenmuth asked Tate if she had any questions about the Union and in response to her reply that she did not understand it and knew nothing about it, Lindenmuth asked her if she wanted to walk picket lines, and pointed out that in contrast to the situation at a nearby organized plant, "we give y'all a raise and we promise you in the next two years another raise." The first of these conversations appears violative of the Act, because the employer, uninvited, invaded the employee's privacy in union matters to inquire into her membership and to suggest she relinquish it. Lindenmuth's observation anent the pay raise, however, merely reminded Tate of an announcement as to future raises which the Company had made the preceding June before it was aware of any union campaign. An employer may without violating the Act accurately call to an employee's attention benefits already existing or previously announced. Finally, with respect to Lindenmuth, it was he who, as noted above , asked Driggers in an interview at the time of her layoff why she was working for the Union so hard, and at the same time commented with respect to another dischargee that he did not know why she was being fired as she was not for the Union. I have previously found (with considerable misgivings ) that the layoff of Driggers was not an unfair labor practice. But for Lindenmuth to make these statements at such a time could only give rise to a belief by the employee that union activities were considered in determining whom to discharge. I therefore find a further violation of Section 8(a)(1) in Lindenmuth's statements on this occasion. Turning to Personnel Director Cecil Reeder, as already noted, he issued warning notices to several employees that they had been soliciting for the Union on company time and would be discharged if the offense were repeated. The sole competent testimony in the record with respect to at least three of these employees, Driggers, Parrish, and Phillips, is that they had not committed the infraction with PHILLIPS-VAN HEUSEN CORP. 11 which they were charged. Under the reasoning of N.L.R.B. v. Burnup and Sims, 379 U.S. 21, taking adverse action against an employee (whether by discharge as in the case or by placing a warning notice in her file as in this) violates Section 8(a)(1) if the action is founded on a belief that the employee has engaged in unprotected activity, the belief arises out of the employee's adherence to the Union, and the proof affirmatively establishes that the employee did not engage in the unprotected activity. Reeder also violated Section 8(a)(1) when he urged Driggers to stop working for the Union, and to get her card back. Other allegations with respect to Reeder concern his antiunion statements at his weekly meetings, but in general I find his comments there to fall within the protected area of views, arguments, and opinions. Cecil McDuffy admitted that on one occasion in August he approached Mary McGowin at her machine, told her that he had heard that she and her husband, who was likewise employed at the Company, were supporters of the Union, and asked if this was true. She answered falsely that they were not for the Union and the next day went to him to tell him the truth about her support of the Union. McDuffy replied that that was her privilege. On another occasion McDuffy told McGowin to stop giving out union cards during working hours. McGowin denied the offense, and McDuffy said he had witnesses to prove it. McGowin asked to confront the witnesses, whereupon McDuffy went to another employee, asked her if McGowin had been giving out cards, and on receiving a negative answer apparently let the matter drop. McDuffy also admitted "jokingly" telling employee Ola Mae Teate on one occasion that she could "still get her union card back." The point of jest eludes me, as McDuffy by his own testimony was not at the time engaged in any union discussion with anyone. Daisy Tate, an employee who was in layoff status at the time of the hearing, testified that McDuffy on one occasion pressed her for a decision as to whether she was withdrawing from the Union; McDuffy denied this testimony, but on the whole record, including fate's disinterest (and indeed her position as a laid-off, employee might well make her eager not to antagonize management) and McDuffy's admitted comment to Teate some months before, I am inclined to credit Tate. Other allegations of interference are likewise leveled at McDuffy, but are denied in his testimony. I see no need to extend this lengthy decision by resolving those credibility issues. I find that McDuffy's harassing of McGowin and Tate interfered with their Section 7 rights and, as noted above, I have also found other violations of Section 8(a)(1) in acts of discrimination and other interference, restraint, and coercion. Further findings as to McDuffy's conduct would add nothing to the order recommended below. The same comment holds for the violations attributed to Supervisor Orson Pridgen and denied by him. Crediting the employees' version against that of Pridgen would add nothing to the order, and I therefore find it unnecessary to discuss the statements attributed to him or his denials thereof. Turning finally to Supervisor Ed Snyder, the testimony of former employee Mildred Adams is that in the course of interviewing her for employment Snyder asked her if she was working for the Union and (following her reply in the negative) what she thought about the Union. She told him she did not know what to think of it, whereupon Snyder advanced various reasons for opposing the Union. Snyder, admitting the latter part of the conversation, denied asking the specific questions as to whether Adams was working for the Union and what she thought of it. He further testified that it was "evident" to him that Adams was not for the Union or working for the Union. His testimony continued: Well, you talk to a girl and explain to her the way the company feels about the union and the position the company takes with the union , and the girl is down there for one reason, to get a job. Nine times out of ten she will say, well, I am not for the union . You can usually tell by the forcefulness of their tones what they mean. I credit Adams version of her interview with Snyder. The latter's own testimony, it seems to me, contains within itself the strongest reason for forbidding interrogation into union affiliation at the time of hiring, a peculiarly sensitive moment when the employee is particularly sensitive to pressure. See N.L.R.B. v. National Plastic Products Company, 175 F.2d 755, 760 (C.A. 4), and contrast the same court's holding as to "casual" interrogation in N.L.R.B. v. Hande & Dauch Paper Company, 171 F.2d 240. I therefore find that Snyder's admitted practice of ascertaining in employment interviews the pro- or anti- union views of the applicant violates Section 8(a)(1) of the Act. In addition to the violations of Section 8(a)(1) by individual supervisors, and the "derivative" violation of that section arising out of the discriminatory discharges of failures to recall, General Counsel alleges that the Company violated that section by granting wage increases and other benefits to induce employees to abandon the Union, and that it applied its no-solicitation rule in discriminatory fashion The wage and other benefits applied to nine other plants in the South in addition to the one here involved, and the decision to effectuate these areawide benefits was made at company headquarters in Pennsylvania. There is no suggestion in the record that union campaigns were underway in the other southern plants. Under all the circumstances I find that the granting of these benefits was unrelated to union activity. To be sure, the supervisors at this plant used the fact of these increases in campaigning against the Union, but this falls under the heading of views, arguments, and opinions as a reference to benefits already existing or announced is not a proscribed "promise of benefit." General Counsel admits in his brief that the no- solicitation rule, prohibiting solicitation on company time, "is valid in form," but contends that "it was adopted for a discriminatory purpose and enforced in a discriminatory way." The record is not clear as to when the rule was adopted, although a special announcement indicating its applicability to union solicitation was posted on a plant bulleting board in September. Under the circumstances, I cannot find that the basic rule was adopted for a discriminatory purpose. Also, although there is evidence that employees circulated antiunion petitions and made private collections on company time, the record is devoid of evidence that the Company was aware of these infractions of its rule, at the time they occurred. In one respect, however, I find the claim of discriminatory application fully sustained. As noted above, the Company issued warnings to several prounion employees for alleged violations of this rule. Indeed, the notice posted in September expressly recited: WHOEVER IS CAUSED TROUBLE IN THE PLANT, OR PUT UNDER PRESSURE TO JOIN THE UNION SHOULD LET THE COMPANY KNOW, AND WE WILL SEE TO IT THAT THIS IS STOPPED. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NO PERSON WILL BE ALLOWED TO CARRY ON UNION ORGANIZING ACTIVITIES OR ANY OTHER OUTSIDE ACTIVITIES IN THE PLANT DURING HIS WORKING HOURS. ANYBODY WHO DOES SO AND THEREBY INTERFERES WITH HIS OWN WORK OR THE WORK OF OTHERS WILL BE DISCHARGED. Implementing this policy, Personnel Director Reeder was ready to credit complaining employees and to discredit the denials of those accused, and was careful to obtain written accusations from the nonunion complainants. But when prounion employees complained of being harassed on the subject by employees who shared the Company's hostility to the Union, the record is clear that the Company's approach was that it could not control the tongues of its employees, and that the victims in those cases should just ignore their tormentors. This palpable difference in the Company's response to employee complaints of being bothered while at work establishes a discriminatory application of the no-solicitation rule, in violation of Section 8(a)(1). CONCLUSIONS OF LAW 1. By discriminatorily laying off Grace Eldridge on September 7, 1965, and by discriminatorily delaying the 1966 recalls of Mary McGowin, Minnie Lou Parrish, Sebie Lee Hughes, and Loreen Shiver because of their support of the Union, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. By coercively interrogating employees with respect to their union membership, by soliciting them to withdraw from the Union, by implying that union membership was a factor in determining whether to discharge an employee, by issuing warnings and threats of discharge based on a mistaken belief that an employee had solicited for the Union on company time, and by discriminatory application of its no-solicitation rule, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. THE REMEDY I shall recommend the customary cease-and-desist order for violations of this magnitude, and the customary order directing that the discriminatees be offered reinstatement and backpay, the latter to be computed under the formulas approved in F.W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. As already noted, backpay for McGowin, Hughes, Parrish, and Shiver will start to run on the date they would have been offered recall but for their union activity, not from the date of separation. I shall further direct that the warning notices issued by Reeder to Driggers, Parrish, and Phillips be expunged. There is no direct testimony before me that Shirah and Hughes were innocent of the offense charged, and under Rubin Bros. Footwear, Inc., 99 NLRB 610, 611, the burden of proof of their innocence rested on General Counsel. See N.L.R.B. v. Plastic Applicators, Inc., 369 F.2d 495 (C.A. 5); N.L.R.B. v. Laney & Duke Storage Warehouse Co., 369 F.2d 859 (C.A. 5). Finally, I shall direct the posting of the usual 15 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 notice, but upon my observation of the witnesses, and because of the fact that the notice may be posted pursuant to my recommendation , I shall not include therein the "Armed Forces" references . For further explication as to this, see B.Y.D. Company, 157 NLRB 978, TXD, footnote 6. Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend, pursuant to Section 10(c) of the Act, issuance of the following: ORDER Respondent, Phillips-Van Heusen Corporation, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee because of membership or activity in Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization. (b) Coercively interrogating employees as to their union activity, soliciting them to withdraw from the Union, implying that union membership is a factor which can affect an employee's tenure, issuing warnings of discharge to employees based on false charges of soliciting for union membership during company time, discriminatorily applying a no-solicitation rule, or in any other manner interfering with, restraining, or coercing any employee in the exercise of his right to join or assist a labor organization. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to reinstate Grace Eldndge and Mary McGowin to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and make them and Minnie Lou Parrish, Sebie Lee Hughes, and Loreen Shiver whole in the manner described in the portion of the Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suffered by reason of the discrimination against them. (b) Notify Grace Eldridge and Mary McGowin if they are 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. (c) Remove from the personnel files of Joyce Driggers, Myra Phillips, and Minnie Lou Parrish, the warning notices given them on October 14, 1965. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at its plant at Geneva, Alabama, copies of the attached notice marked "Appendix."15 Copies of said notice, to be furnished by the Regional Director for Region 15, after being duly signed by an authorized representative, 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 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 " PHILLIPS-VAN HEUSEN CORP. where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.16 16 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps 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 offer Grace Eldridge and Mary McGowin their former jobs and pay them and Minnie Lou Parrish, Sebie Lee Hughes, and Loreen Shiver for wages they lost as a result of their discharges or delayed recalls from layoff. All our employees have the right to join or assist 13 Amalgamated Clothing Workers of America, AFL-CIO, or any other union. They also have the right not to join or assist any union. WE WILL NOT take or threaten to take any action against them for engaging in union activity, coercively question them as to their union activity, ask them to withdraw from a union, imply that union membership is a factor which can affect an employee's tenure of employment, threaten them with discharge because of false reports that they have violated our rule against solicitation on company time, discriminatorily enforce that rule, or in any other manner interfere with, restrain , or coerce them in the exercise of their rights under the Act. Dated By PHILLIPS-VAN HEUSEN CORPORATION (Employer) (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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6391.