Kayser-Roth Hosiery Co., Inc.

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kayser-Roth Hosiery Co., Inc. and Textile Workers Union of America, AFL-CIO Kayser Roth Company, Inc. and Textile Workers Union of America, AFL-CIO Kayser-Roth Company, Inc. and Textile Workers Union of America (Hosiery Division). Cases 10-CA-5691, 10-CA-5749, 10-CA-5721, 10-CA-5735, 10-CA-5898, 10-CA-6000, and 10-CA-6159 June 30,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On December 22, 1966, Trial Examiner Welling- ton A. Gillis issued his Decision in the above-enti- tled proceeding, finding that Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that Respond- ent had not engaged in other violations alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondent filed exceptions and a supporting brief. I Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 Ex- aminer made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recomihendations of the Trial Examiner, with the following modifications:' The Trial Examiner concluded that Respondent violated Section 8(a)(3) and (1) of the Act by deny- ing reemployment to James McMillian during the first week of July 1964. We do not agree. The facts show that McMillian was employed in March 1964 1 No exceptions were filed to the Examiner's failure to find other viola- tions alleged in the complaint. Accordingly, we adopt his disposition of these matterspro forma 2 In adopting the Examiner's 8(a)(1) findings, we find it unnecessary to rely upon Supervisor Troy Ward's alleged surveillance and threat to spy upon the May 12 union meeting; Respondent's April 20, 1964, notice ad- verting to "serious harm" which might flow from union activity "in the long run," relied upon by the General Counsel only to show antiunion animus; and Superintendent Roberson's conduct alleged to have discouraged Alveida Harris from honoring a Board subpena. In finding that Supervisor Parker Bean unlawfully threatened employee as a construction worker on a temporary basis. On April 12, the construction work ended and, on April 15, Respondent gave McMillian a job as a knitter trainee.3 McMillian worked as a knitter trainee until April 28, when ill health forced him to quit. It was understood that McMillian would take a layoff slip and return when he was physically able to work. By mid-June, McMillian had recovered sufficiently to work, but was twice told that jobs which he could perform were not available. In the first week of July, Superintendent Everett Rober-, son informed McMillian that he needed knitters but wanted to employ women for this job. Unlike the Examiner, we find no basis for inferring antiunion motivation from Respondent's preference for women knitters. The record establishes that Respondent was then in the process of conforming the Dayton plant to a companywide policy of using women knitters, even though Respondent did retain men knitters already on the job, and had previously started to train McMillian as a knitter. It does not appear, moreover, nor was it even contended, that Respondent was implementing this policy in an an- tiunion fashion. In short, we find insufficient evidence to support the inference that Respondent had a job opening for male knitters and unlawfully withheld it from McMillian because of his union activities. 4 We are also unable to accept the Trial Examiner's conclusion that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Mary Frances Bowen on September 22, 1964.5 The Examiner, re- jecting the Company's contention that Bowen was discharged for using profane language on the job, found that Bowen's union activity prompted her discharge. The Examiner did find that Bowen had in fact used profane language, that this was reported to management, and that profanity was specifically prohibited by company rules. However, the Ex- aminer felt that since it was Bowen's first offense and "a relatively minor one," Respondent would have imposed a lesser penalty, absent "an addi- tional and an alternative [i.e., antiunion] motive." But we find that the key element for unlawful mo- tive- company knowledge of Bowen's union ac- tivity- is lacking. There is admittedly no direct evidence of company knowledge. And we are una- ble to infer knowledge of Bowen's limited union activity,6 as the Trial Examiner did, from a general Peggy Wright on April 15, 1964, the Examiner inadvertently refereed to Wright as "Hill" in his concluding sentence. 3 Cecil Housley was McMillian's supervisor and was aware of McMil- lian's union sympathies at this time. 4 We note that the complaint specifies discharge on April 28, rather than refusal to reemploy in July, as the offending discrimination in McMil- lian's case. 5 Member Brown would affirm the Examiner 's finding as to Bowen. 6 The only evidence of Bowen's union activity was her testimony that she signed a union card in June or July and "talked to other employees about signing a union card " 166 NLRB No. 56 KAYSER-ROTH HOSIERY CO. belief that "with time" the Company knew or suspected "most" of those favoring the Union,' and the fact that Bowen "appears to have been less than silent on the matter." Such beliefs and appearances are too nebulous a basis for inferring the actual communication of information about Bowen's union activity to the Company. The vagueness of the Examiner's finding is further reflected in his placing the acquisition of company knowledge as "sometime between June and the latter part of Sep- tember." We must conclude that there is insuffi- cient evidence that the Company knew of Bowen's union activity and acted on this knowledge in discharging her on September 22. Accordingly, we shall reverse the Examiner's findings of 8(a)(3) violation as to James McMillian and Mary Frances Bowen, and dismiss the com- plaint's allegations in respect to them. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Kayser-Roth Hosiery Company, Inc., Dayton, Tennessee, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as herein modified. 1. Delete paragraphs 1(d), (e), and (f), and renumber the remaining paragraphs consecutively. 2. Delete paragraphs 2, 3, and 4 of the Notice. 3. Delete the names of James McMillian and Mary Frances Bowen from paragraph 16 of the Notice. Support for this is apparently founded on an inference drawn from cer- tain unspecified testimony of "several " unnamed supervisors. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Trial Examiner: Upon charges filed on April 28, as amended on May 4 and June 1 While the above charges were filed by American Federation of Hosiery Workers, AFL-CIO, predicated upon the statement of counsel for the Charging Party made at the opening of the hearing to the effect that on April 15, 1965, American Federation of Hosiery Workers, AFL-CIO, had merged with Textile Workers Union of America, AFL-CIO, I granted without objection the Charging Party's motion to change the name of the Charging Union to conform with the merger action. Thus , the name of the Charging Party, hereinafter referred to as the Union , appears in the caption as corrected at the hearing. 2 After the close of the hearing on June 9 , 1965, pursuant to an addi- tional charge having been filed on June 21, 1965, as amended on July 19, 1965, in Case l0-CA-6159, culminating in a complaint issuing on August 27, 1965, alleging additional violations of Sec. 8 (a)(3) and (4), on Sep- tember 20, 1965, I granted the General Counsel's motion to reopen record and consolidate cases. Thereafter, pursuant to notice contained therein, the hearing was reconvened and closed on October 12, 1965. 373 10, 1964, in Case 10-CA-5691; on May 22, 1964, in Case 10-CA-5721; on May 28, 1964, in Case 10-CA-5735; on June 10, 1964, in Case 10-CA-5749; on October 28, 1964, as amended on January 18, 1965, in Case 10-CA-5898; and on February 23, 1965, as amended on March 19, 1965, in Case 10-CA-6000, by the American Federation of Hosiery Workers, AFL-CIO,' the General Counsel for the Board, hereinafter referred to as the Board, issued complaints on June 15 and July 20, 1964, and on March 26 and April 29, 1965, against Kayser-Roth Company, Inc., hereinafter referred to as the Respondent or the Com- pany, alleging violations of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to as the Act. The Respondent thereafter filed a timely answer to the consolidated complaint denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held in Dayton, Ten- nessee, on 16 hearing days between May 17 and June 9, 1965, and on October 12, 1965,2 at which all parties were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues. Upon the entire record in this case,3 and from my ob- servation of the witnesses and their demeanor on the wit- ness stand, and upon substantial, reliable evidence "con- sidered along with the consistency and inherent probabili- ty of testimony" (Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS4 1. THE BUSINESS OF THE RESPONDENT The Respondent, a North Carolina corporation with an office and place of business located at Dayton, Tennes- see, is engaged in Dayton in the manufacture and sale of hosiery and related products. Annually the Respondent sells and ships products valued in excess of $50,000 directly from its Dayton, Tennessee, plant to customers located outside the State of Tennessee. I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3 I hereby note and correct the following errors contained in the other- wise accurate and well-transcribed transcript: p 81, 1. 11, "the" should read "she"; p. 83 , 1 12, "her" after the word "told" should read "him", p. 722, 1 7, "TRIAL EXAMINER" should read "WITNESS"; p. 827, 1. 24, "not" should be added before the word "hesitated", p. 2065,1 15, "not" should read "now" ; p. 3275, 1. 21, the second "to" should read "through" , and p. 3275,1. 23, the third "to" should read "through." ° The great bulk of the testimony in this proceeding concerning material matters, involving some 88 witnesses and several thousand pages of trans- cript, is conflicting and contradictory. My findings of fact are predicated upon my careful consideration of the entire record and my observation of the witnesses and their demeanor while testifying. While, in the interest of brevity, all of the evidence on disputed matters has not been set forth, all evidence has been Considered and weighed and, where deemed necessary, resolved 308-926 0-70-25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement Subsequent to the issuance of complaints on June 15 and July 20, 1964, which were based upon unfair labor practice charges filed in Cases 10-CA-5691; 10-CA-5721; 10-CA-5735; and 10-CA--5749, the parties entered into an informal settlement agreement ap- proved on August 13, 1964, disposing of all 8(a)(1) and (3) issues then pending.5 Thereafter, predicated upon a representation petition filed by the Union on September 11, 1964, and a representation hearing held on October 2, 1964, in Case 10-RC-6077, an election was conducted among the Respondent's employees on November 18, 1964, the result of which, because of challenged ballots, had not been determined as of the date of the instant proceeding. On February 12, 1965, based upon 8(a)(3) charges filed in Case 10-CA-5898, some of which the Regional Director determined were meritorious, the Re- gional Director found that the Respondent had failed to fully comply with the August 13 settlement agreement and set it aside. Thus, in addition to postsettlement con- duct of the Respondent, the March 26, 1965, complaint contained numerous 8(a)(1) allegations that had been sub- ject to the August settlement agreement . The con- solidated complaint, dated April 29, 1965, upon which the instant case initially went to hearing , included 8(a)(1) and (3) allegations , some of which dated back to March 18, 1964, and contained additional 8(a)(3) allegations based upon subsequent charges filed in Case 10-CA-6000. In essence, the consolidated complaint , as amended at the hearing ,6 alleges (a) approximately 107 instances of independent 8(a)(1) conduct , all but 8 or 9 of which al- legedly occurred prior to the approval of the settlement agreement on August 13, 1964; and (b) 30 dis- criminatees , all but 7 of whom allegedly were dis- criminated against subsequent to the execution of the set- tlement agreement.7 The position taken by the Respondent, as articulated by its counsel at the opening of the hearing, asserts that there had been complete compliance with the August set- tlement agreement well in advance of the Regional Director's action in setting it aside on February 12, 1965, that such action by the Regional Director was therefore improper, and accordingly, that only matters alleged in charges filed subsequent to the execution of the settle- ment agreement which were not a part of that agreement are subject to litigation in this proceeding. In view of cer- tain of my findings hereinafter set forth, with respect to matters occurring during and subsequent to the posting period, it follows, contrary to that asserted by the Respondent, that there was not at any time full com- pliance with all of the terms of the settlement agreement. Accordingly, as it is well established that where it appears that an employer has failed to comply with a settlement agreement or has engaged in additional unfair labor prac- tices since that agreement, the Regional Director may unilaterally set aside the settlement agreement and proceed with a complaint which includes both pre- and post-settlement violations,8 I find without merit the Respondent's position. Moreover, in determining the ex- istence of unlawful conduct since the settlement agree- ment, relied upon in part in justifying the setting aside of the settlement agreement, presettlement agreement con- duct may now be used as background evidence to establish its illegality under the Board's recent partial reversal of its longstanding Larrence Tank doctrine,9 as enunciated in Joseph's Landscaping Service.'" Therefore, having found that the Regional Director properly set aside the settlement agreement, I find it in- cumbent to resolve matters pertaining to presettlement as well as postsettlement conduct.' i B. The Issues 1. Whether the Respondent interfered with, restrained, or coerced its employees in violation of Sec- tion 8(a)(1) of the Act, by interrogating its employees concerning their union membership and the union mem- bership of other employees; threatening its employees that it would close its plant if the Union were successful in its organizational campaign; threatening its employees with physical violence if they joined or engaged in activi- ties on behalf of the Union; threatening its employees with discharge if they joined or engaged in activities on behalf of the Union; threatening its employees with more onerous working conditions if they joined the Union or engaged in activities on its behalf; threatening its em- ployees that it would withdraw existing privileges and reduce wages if they joined or engaged in union activities; threatening its employees that they would suffer serious harm if they joined the Union or engaged in union activi- ties; threatening its employees that it would engage in sur- veillance of their union meetings; threatening its em- ployees that it would eliminate overtime work and pay if 5 Pursuant to the terms of the agreement, which contains a nonadmis- sion clause, 11 alleged discruninatees were reinstated or otherwise made whole for alleged discrimination against them. 6 I permitted counsel for the General Counsel to amend the complaint by adding certain 8(a)(1) allegations, and deleting the names of Tommy Thurman, Albert Calbaugh, and Elizabeth Dillard as alleged dis- crimmatees. ' Of these seven who were allegedly discriminated against prior to the execution of the settlement agreement , only one was involved in the set- tlement agreement. Of the 30 alleged discriminatees 3 were subsequently added as 8(a)(3) and (4) violations based upon their having testified against the Respondent earlier in this proceeding 8 Southland Paint Company, Inc., 156 NLRB 22; Wallace Corporation v. N.L.R.B, 323 U.S. 248,253-255; International Brotherhood of Team- sters, etc., 116 NLRB 1891, 1898-99, Baltimore Luggage Company, 126 NLRB 1204, 1208. ' Larrence Tank Corporation Company, 94 NLRB 352, 353. The rule there set forth, and until now followed, assets that "It is the Board's established practice not to consider as evidence of unfair labor practices conduct of a Respondent antedating a settlement agreement, unless the Respondent has failed to comply with the settlement agreement or has en- gaged in independent unfair labor practices since the settlement Moreover, in determining whether such independent unfair labor prac- tices have occurred after the settlement, the Board will not appraise a Respondent's post-settlement conduct in light of its conduct prior to the settlement." 10 Northern California District Council of Hodcarriers and Common Laborers of America, AFL-CIO; Construction and General Laborers Union Local No 185, AFL-CIO (Joseph's Landscaping Service), 154 NLRB 1384 (footnote 1). The Board therein held that "to the extent that the above rule bars the use of presettlement conduct as background evidence establishing the motive of object of a Respondent in its postset- tlement activities, we have concluded that it is incorrect ." See also Climate Control Division, The Singer Company, 160 NLRB 765. 11 See Bangor Plastics, Inc., 156 NLRB 1165. KAYSER-ROTH HOSIERY CO. 375 the Union were successful in its organizational drive; threatening its employees that it would not promote its employees if they joined or engaged in activities on behalf of the Union; spying upon and keeping under surveillance the union meetings and activities of its employees; in- stituting a hiring practice to discriminate against em- ployees because of their union membership, sympathies, and activities on behalf of the Union; instituting a rule prohibiting employees from engaging in activities on be- half of the Union at any time on Respondent's premises; promising its employees a wage increase if they refrain from joining or engaging in activities on behalf of the Union; soliciting its employees to withdraw their mem- bership in the Union; threatening its employees with discharge if they made mention of the Union or the sign- ing of an authorization card for the Union; and dis- couraging an employee from honoring a subpena of the Board which had been duly served. 2. Whether, subsequent to the August 13, 1964,12 settlement agreement, the Respondent unlawfully failed to offer Earl Calbaugh a job for which he was qualified in violation of Section 8(a)(3) of the Act. 3. Whether the Respondent violated Section 8(a)(3) of the Act by discriminatorily discharging and refusing to reemploy the following employees: James W. McMillian, Jean Ella Potter, Doris Smith, Bobby Ray Cox, Erma June Keylon, Burton Eugene Yates, Noreen Nash, Charles Wayne Porter, Stewart E. Calbaugh, James Buck Reel, Vaughn Hensley, William C. Pelfrey, Ronnie Pat- ton, Calvin Creekmore, Mary Frances Bowen, Kenneth Toole, Shirley Shaver Wilkey, Peggy Wright, Bobbie Sue Dunn, Betty Stout, Garland Stinnett, Robert Allen Smith, James W. Suttles, Conway G. Ballard, Hubert D. Keith, and Euel Robert Tate. 4. Whether the Respondent violated Section 8(a)(3) and (4) of the Act by discharging and refusing to reinstate Shirley Fugate, Kenneth Lee Hughes, and Frances Hill. C. Background and Preliminary Alleged 8(a)(1) Violations13 Kayser-Roth's Dayton plant, as it exists today, is made up of two former independent and geographically separated hosiery mills, one, the Dayton Hosiery Mill, and the other, the Graysville Hosiery Mill. With the acquisition of the Graysville Mill in 1955, Kayser-Roth converted the Graysville plant into a greige goods or knitting operation, transferring the finishing operations to the Dayton plant, and similarly, changed its Dayton plant into strictly a finishing operation, transferring its knitting operation to the Graysville plant. Thus, until 1964, the two plants operated in this manner, with the greige goods from the Graysville plant being carried across town to the Dayton plant for finishing. In March 1964, with the completion of construction of new facilities at the Dayton plant, which more than doubled the existing space, the two plants were physically consolidated at the one loca- tion, with the old Graysville structure maintained as a warehouse. Structurally, Kayser-Roth's Dayton Division, which manufactures exclusively tights (leotards) and children's hose is headed by a general superintendent, who is assisted by superintendents of the two divisions, the knitting division and the finishing division. The knitting division, employing approximately 300 employees, is made up of a knitting department operating on three shifts, a sewing department, and a toe seaming and in- specting department.14 The finishing division, with ap- proximately 220 employees, is comprised of a boarding department running on three shifts, a dye department operating two shifts, a pairing department, a longfold de- partment, a folding department, and a shipping depart- ment. The completion of the new facility, and the moving of the knitting division into the new plant, coincided with the initial leaflet distribution on March 17, commencing the Union's organizational campaign among the Respond- ent's 520 employees. Within a few days thereafter, Car- lysle Isley, vice president in charge of public and industri- al relations, headquartered in Burlington, North Carolina, made a trip to Dayton for the express purpose of formally discussing with plant supervision the necessity of a uniform application of plant rules and the company policy with respect thereto,15 and the effect of the Union's or- ganizing efforts on supervision. On or about March 20, Isley met with all of the Dayton plant supervisors. At this meeting, Isley discussed the plant rules, rules which had been in effect without revision for some 18 years, and the need to enforce them. 16 The latter part of the meeting ap- pears to have been devoted to a discussion of the impact of the Union on these rules and of the union activity generally in its relation with the supervisors. In this re- gard, Isley testified that he told the gathered supervisors that inasmuch as leaflets had been distributed to the em- ployees, they should be careful of their comments in re- gard to unionism and further testified that he talked to them as follows: I mentioned that the union leaflets had been passed out to our employees here in Dayton and that our supervisors should be on guard as to their dealing with the employees. I suggested or I told them that we should apply our plant rules and company poli- cies uniformly to everybody regardless of whether they indicated they were interested in the Union or not. I stated that under no condition could any super- visor question or interrogate any of the employees 12 All unspecified dates refer to the year 1964, except where otherwise obvious. 13 Sec. 8(a)(1) of the Act reads as follows: Sec. 8. (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7; ... Section 7 of the Act reads as follows: Sec 7. Employees shall have the right to self-organization, to form, loin, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mu- tual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). 14 At times material to this proceeding, there existed a greige depart- ment as well. is As hereinafter noted the record amply demonstrates that such a trip at this time was operationally feasible. 16 I find that at this time no new plant rules were established and that, to the extent that some record testimony would indicate the contrary, it per- haps was based on a confusion created by the fact that shortly after the meeting, Isley sent back to Dayton some new, but identical, posters to replace the old and faded ones on the old bulletin boards and on the new ones in the new part of the plant. A copy of these rules is attached and marked "Appendix B." 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under his supervision. I told them that they should not spy on union activities. I told them that they could not threaten any employee with discharge because of union activities. That they could not promise to reward any employees for spying on the Union and that the supervisors were supposed to do their job just as if there were not any union trying to get into the plant. Isley further testified that he told them "that a person could be discharged whether he was a member of the Union or not if he broke plant rules." He went on to in- struct them not to initiate conversations with employees concerning the Union and not to inquire as to whether they or others belonged to the Union, but if they were ap- proached by employees and asked, they could express their own opinion and could tell them that they were op- posed to it. Isley apprised the supervisors "that em- ployees are not permitted to carry on union activities to the extent that they were neglecting their own job or in- terfering with others in performing their job." The above findings are based upon Isley's credited testimony, which for the most part is corroborated by Su- pervisors Robert Wilkey and Wendell Borne and by Divi- sion Superintendent Everett Roberson. On direct ex- amination, Wilkey testified on behalf of the General Counsel that "I believe that the main subject was that there would not be allowed to be any union activities on the job."17 Although admitting that on this occasion Isley told them not to interrogate or threaten employees, that there would be no union activities on the job while an em- ployee was doing his job, that there was to be no interfer- ing with the work of others, and that union employees and nonunion employees were to be treated just alike, Wilkey testified that they wanted the supervisors to "work along with them on the thing and to try to keep them informed of any activities that were taken [sic] place, things like that." As this quoted portion of Wilkey's testimony is not specifically attributed to any named person, and in view of my credibility findings hereafter as to Wilkey and of Roberson's denial that this was said or implied, I find that it does not accurately reflect the true fact. The General Counsel called as its witness, Wendell Borne, supervisor of the dye department, who had also been active in the Union, had been discharged, and subsequently reinstated pursuant to the settlement agreement in August. Borne, corroborating Isley, testified that at this meeting Isley told the supervisors in answer to questions that they should treat everybody the same, that the employees who signed union cards did not have any special privileges over those who did not sign cards, and that a union em- ployee could be discharged for breaking company rules just like any other employee. Isley told them that em- ployees could not be fired for union activities. 18 In support of the complaint allegation that the Respond- ent in April instituted a hiring practice to discriminate against employees who were union adherents, the General Counsel elicited from Robert Wilkey, a former supervisor later transferred to a nonsupervisory position at his own request, testimony to the effect that about the first of June, Kenneth Queen, the assistant general su- perintendent of the Seamless Division from Burlington, North Carolina, called Supervisors Charlie Kelley and Roy Stinnett, and him, into an office and told them that "the main ones that held on to the Union and wouldn't give up and kept on working for the Union that he wants some discharges on those, and he did call some names." Wilkey could recall only the names of Woodrow Tumlin, Guyman Hill, and Mayford Daniels. After a leading question in which the words "twisted toe" were used, Wilkey remembered that Queen also said, "To find a twisted toe or heel, something wrong with the work and discharge them for it." Neither Charlie Kelley nor Roy Stinnett were questioned by either party as to this conversation.19 Queen, who was placed on the witness stand by the Respondent soley for the purpose of testifying as to this matter, denied on direct and on cross-examination that he at any time told Robert Wilkey or any supervisor that he wanted or expected specific individuals discharged or that he, in any form, told supervisors that he wanted discharges. I do not credit Wilkey as to these instructions at- tributed to Queen. In the first place, Wilkey, who was evasive and at times vague, did not impress me as being particularly truthful on the witness stand, having reversed himself several times on minor aspects of his testimony. Whereas Queen, although on the stand only briefly, gave the appearance of candor. It should also be noted that, with one isolated and nonalleged exception, the record contains absolutely no credible evidence of antiunion animus on the part of Queen, and no other evidence that he in any way became involved with union matters, ac- tions, or conversations in the Dayton plant. Secondly, Wilkey's testimony to the effect that because of this he asked for a transfer to a nonsupervisory job which sub- sequently was granted is likewise not supported by credi- ble record evidence. In fact, at one point, Wilkey ad- mitted that he askedto be transferred because in his own opinion he was not a supervisor. Finally, the record reveals that among a number of known union leaders still working in the plant without interruption are Woodrow Tumlin, Guyman Hill, and Mayford Daniels, the three mentioned in Wilkey's testimony. I shall recommend that this portion of the complaint be dismissed, and hereby take particular notice of this finding as it would otherwise affect the 8(a)(3) issues hereinafter discussed. 17 In view of the italicized portion of this quotation, I find that this evidence does not, to the extent that it was so intended, support par 19 of the complaint alleging as violative of the Act the institution of a rule prohibiting employees from engaging in Union activities at any time on Respondent's premises. 's Borne's testimony, however, is weakened by the fact that his testimony on a crucial point differs from that which he had set forth in his pretrial affidavit. Thus, in his affidavit he stated that Isley "said all appli- cations for jobs would be from then on be handled so that the applicants whole history could be checked so that the company could know, they could not have anything- they would not have anything to do with a union." On the stand, Borne testified that he believed that Isley said "the applications would be made through the office and the supervisors would select the applications they wanted to use." Without minimizing the effect of this, I must state that in watching Borne while testifying, I felt that he appeared to be a most reliable and honest witness. While this discrepancy goes only to the credibility of the witness, and not to the truth of the matter, nevertheless, Isley was questioned on this and denied telling the supervisors that the job applications would have to be screened carefully in order that the Company could be sure that new employees would not be in favor of the Union ' 9 Charlie Kelley, who was ill, testified in this proceeding only briefly as to one incident, and did so from a hospital bed-just before the close of the hearing. Stinnett, on the other hand, testified at length to a number of mat ters. KAYSER-ROTH HOSIERY CO. 377 While, as hereinafter found, the Respondent through its supervisors did engage in interrogation, threats, surveil- lance, and unlawful conduct generally during the months immediately following the advent of the Union, as well as in discriminatory termination of employees, contrary to the view of General Counsel, 1 find neither directive nor justification for such conduct in either of the two super- visor meetings referred to above, and to the extent that complaint allegations may be predicated thereon, I find them to be without merit. This is not to say that the Respondent, officially and otherwise, did not strongly oppose the Union and its ac- tivity among the plant employees, for it did. The Respond- ent, early in the Union's campaign, made it clear to all of its employees that it was opposed to the Union and in- tended to take all proper means to prevent its successful organization in the plant. A notice addressed to all em- ployees, articulately setting forth its position, was posted on the bulletin boards and, under a covering letter, sent to each employee.20 Simultaneously with the documented opposition to the Union as registered by the Respondent, the Union, between April 10 and May 12, held some 10 or 11 meetings attended by plant' employees at various places in the Dayton area. At the same time, some 83 em- ployees became signatory to four form "letters" prepared by the Union on various dates in April, and subsequently sent in three mailings by certified mail to the Respondent placing the latter on notice that said employees had signed union authorization cards, were members of the Union, and were actively participating in a campaign to organize the plant for the purpose of collective bargain- ing.21 The purpose of preparing these union letters, as stated by counsel for Charging Party "was so that the company could not subsequently deny that they knew these people were engaged in union activity." Upon receipt of the first such union letter, the record does not indicate with respect to the others, the Respondent replied by mail to each employee named therein, acknowledging receipt of the union letter, and apprising him that his having signed with the Union gave him no im- munity of any sort or any preference over other em- ployees, and that he would be expected to perform his job as fully as anyone else if he wished to remain with the Company.22 According to Isley, his instructions with respect to the enforcement of plant rules and increasing efficiency in the finishing department were not carried out.23 Accordingly, in the months following his visit to Dayton, a large number of managerial changes were made in the Dayton plant operation, from the top to the bottom. This gradual elimination process was effectuated because of gross inef- ficiency on the part of those responsible. Thus, Elmer Kelley, who, as vice president and general manager, was the highest company official in Dayton, was retired by the Company on August 11; Leon Young, the general su- perintendent, was relieved of his duties sometime during the early summer and separated from the Company on September 25; Freeman Looney, finishing division su- perintendent, was relieved of his duties on July 31, and replaced by Earl Barger on August 4;24 Charlie Kelley, first-shift boarding room supervisor, was relieved of his supervisory functions and demoted to a shipping clerk on November 13; Robert Wilkey, second-shift boarding room supervisor, was relieved of his supervisory status and moved to "tights bagger" on October 5; Bud Young, shipping department supervisor, was demoted to a shipping clerk on January 18, 1965; and Parker Bean, su- pervisor of the greige department, was relieved of his su- pervisory functions on November 4, and moved to the warehouse.25 With the exception of former Finishing Division Superintendent Earl Barger, none of those offi- cials whose employment with the Respondent was sub- sequently terminated was called upon to testify in this proceeding. D. Alleged Violations of Section 8(a)(1) 1. Surveillance As part of the Union's organizational campaign during the spring of 1964, the Union held 10 or 11 meetings which were attended by employees of the Respondent. These meetings were held in public places, and out-of- doors. Undisputed record -evidence reveals that on a number of such occasions a company official was present in the general area at one time or another and was wit- nessed by employees so attending. Thus, the question posed is whether, in each instance, the official or super- visor was there for the purpose of engaging in surveil- lance of the union activities of employees. a. March 19- Walnut Grove Church Employee Robert Smith, one of the alleged dis- criminatees herein, testified that "about March 19, it was in March," while attending a union meeting outside the Walnut Grove Church, attended by some 25 to 30 em- ployees, he saw Leon Young and Kenneth Queen, a com- pany official headquartered in Burlington, North Carolina, pass by, doing about 35 miles per hour. The Walnut Grove Church is located directly beside Highway 27 traveling north and south and close to the county hospital, and at this point commands a 45-mile per hour speed limit. First, because there is no corroboration of Smith's testimony in this regard;26 secondly, as the evidence reveals that the first union meeting of Respond- ent's employees was not held until April 10, and the first Walnut Grove meeting until April 16; and thirdly, in view of Smith's changing his testimony from having seen Queen "looking at us" to "he was looking straight ahead" 20 A copy of the notice, G.C. Exh. 6-B, is attached and marked "Ap- pendix C." 21 For the sake of uniformity as well as transcript conformity, these documents hereinafter will be referred to simply as "union letters." 22 This was not asserted as a violation and a copy of the letter was in- troduced into evidence solely to show company knowledge of union ac- tivity on the part of certain employees. 23 Isley's testimony that the plant continued to operate around 75 per- cent of normal efficiency is not refuted. 24 Earl Barger subsequently left the Respondent's employ on April 21, 1965, and was replaced by Bill Ewing. 25 Among other changes, Cecil Housley, third-shift knitting department supervisor, quit his employment with the Company on August 16. Because of the tremendous turnover in the Company's management and supervision, for the purpose of simplicity in discussing any particular in- cident or event throughout this decision, the person involved will normally be referred to by the title or position held by him at the time of the in- cident. 26 Nor, admittedly, is there refutation, for Young did not testify and Queen, only as to one incident. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as they drove by,27 I do not credit Smith's testimony as to this incident and, accordingly, find that it did not occur. b. April 10- Wolf Creek School Employee Guyman Hill, a union leader, credibly testified that he attended this Wolf Creek meeting, which the record discloses as being the firstheld among Respond- ent's employees, that it was held out-of-doors beside the schoolhouse, and that it was attended by some 16 of Respondent's employees. While in attendance, he saw Ann Thurman28 and employee Dianne Garrison twice drive by the meeting place, turn around and come back. According to Hill, the black top country road was some 50 to 70 yards from the meeting place, and Thurman was traveling at an estimated 30-35 miles per hour. Employee Finley Fugate testified that on this occasion, just before arriving at the meeting with his wife, he saw Ann Thurman, with a second person , sitting in an au- tomobile at a drive-in restaurant. After stopping at the drive-in for something to drink, Fugate went to the meet- ing. Sometime later he saw Ann Thurman drive by, turn around, and drive back again. She repeated this some 25 minutes later. Fugate's testimony differs from Hill's only to the extent that he recalled but 10 employees in at- tendance and that he estimated the distance from the road to the school about 150 yards. Employee Francis Hill corroborated the testimony of Guyman Hill and of Fu- gate, and added that the drive-in could be seen from the meeting place. Finally with respect to this incident, Ann Garrison, a sewing department employee who customarily rode to and from work with Ann Thurman, testified that on the day in question, while riding home to Spring City after work, Thurman told her that it was important that she be at Spring City at 4:30 p.m. because "they were going to have the union meeting at the Wolf Creek Schoolhouse and that she was going to be over there." According to the undisputed testimony of Garrison, they stopped to eat at the drive-in across the road from the schoolhouse where they "watched the cars go into the schoolhouse." As the cars passed containing employees whom she knew, Thurman wrote down their names, asking Garrison for assistance in identifying the employees. Garrison testified to thereafter making but one trip down and back past the schoolhouse. It is also apparent from her testimony that the Wolf Creek School is 2 or 3 miles off of their usual Route 27 to Spring City.29 These facts, beyond question, compel a finding that on this occasion Ann,Thurman was engaged in the most flagrant kind of surveillance. Accordingly, I find that the Respondent, responsible for the conduct of its agent, thereby violated Section 8(a)(1) of the Act. c. April 11- Rattan Bridge On Saturday morning, April 1 l , the second meeting of employees was held out-of-doors at Rattan Bridge, a 24 Smith admitted on cross-examination that , after signing his pretrial affidavit he later went back and changed it in the same manner that he changed his testimony on the witness stand. 28 Although the parties were unable to agree as to the supervisory status or lack thereof of Ann Thurman, they did stipulate that, for the purpose of this proceeding only and as to the April 10 Wolf Creek School incident only, Thurman was an agent of the Respondent public place located adjacent to a county road. According to the testimony of a number of employees,30 Supervisor Cecil Housley drove by while the meeting was in progress. Toole testified that approximately 30 to 40 em- ployees were in attendance and that Housley's rate of speed was less than normal. Bowman testified that ap- proximately 25 to 30 employees were present, that Housley's rate of speed was less than normal, approxi- mately 20 m.p.h. Bowman, on cross-examination, ad- mitted that Housley lived in the Rattan community and that, in going to visit Housley, which he did on occasion to go hunting with him, one would come over the Rattan Bridge. On these facts alone, including the absence of evidence that Housley ever saw or looked toward the em- ployee group, I am not prepared to draw an inference that Housley drove past the area for the purpose of surveil- lance or that he was so engaged. I find the incident not to constitute unlawful conduct. d. April 16 - Rattan Bridge Doris Smith, an alleged discriminatee and a credible witness, testified that, while attending a union outdoor meeting with some 25 to 30 other employees at Rattan Bridge sometime in April, which I find to have been April 16, she saw Plant General Manager Leon Young drive by very slowly. According to Smith, a few minutes later Young drove back over the bridge, which was some 70 yards away, glancing in the direction of the employees as he went by. Young, no longer an official of, or employed by, the Company, did not testify. Accordingly, Smith's testimony, although not corroborated, is not refuted. As I was impressed with her candor and found her to be a most credible witness, notwithstanding a lack of cor- roboration by others who may have been in attendance, I credit her testimony in this regard. I find these facts to warrant an inference of unlawful motive on the part of Young. I find that on this occasion Young was engaged in surveillance and, accordingly, that the Respondent vio- lated Section 8(a)(1) of the Act. e. April 23 -Rattan Bridge Noah Wright testified that 2 or 3 weeks after the April 11 union meeting, while attending another union meeting at Rattan Bridge, which I find took place on April 23, Su- pervisor Cecil Housley again drove by the employee meeting. For the same reasons heretofore expressed with respect to the April 11 meeting at Rattan Bridge, I find this evidence, even when considered with the evidence of the earlier meeting, insufficient to support an inference of surveillance on the part of Housley. f. May 12 - Rattan Bridge Two union meetings were held on May 12, the first, a morning meeting for second- and third-shift employees at Rattan Bridge, the second, an afternoon meeting for first- 21 Ann Thurman did not testify in this proceeding. Accordingly, the testimony of Guyman and Francis Hill, and of Finley Fugate and Dianne Garrison is unrefuted. 30 Glenn Keylon, Noah Wright, Kenneth Toole , William Bowman, and Roy DeVault. KAYSER-ROTH HOSIERY CO. 379 shift employees at Walnut Grove Church. As to the former, employee Samuel Barley credibly testified that on Friday before the May 12 scheduled meeting at Rattan Bridge he asked Supervisor Troy Ward, whom he knew to fish frequently at Rattan Bridge, if he had been fishing, and then suggested that he not go the next morning. Glenn Keylon testified that on this occasion he overheard Barley tell Ward that they were to have a union meeting, and that Ward said that he had planned to do some fishing and that he could do it there. At this, according to Keylon, Barley told Ward that he was telling him this because he was not invited. Ward admitted telling Barley that "as long as I have a license I would fish when I get ready." The following morning, Ward fished from Rattan Bridge, which is about 10 feet wide, between 8:30 and 10:30 a.m. when he quit because the fish stopped biting. Some 15 or 20 minutes before he left, employees started gathering for the meeting, some of whom drove across the bridge within a few feet of where Ward was doing his fish- ing. The meeting place was approximately 125 yards, with a clear vision, from the bridge. Ward admitted hav- ing been made aware of the scheduled union meeting in that vicinity when he set out to fish that morning. Not- withstanding the fact that Ward, a rabid fisherman who frequently chose Rattan Bridge, might well have fished there that particular morning whether or not there had been a union meeting held, I find that, under these cir- cumstances, Ward's action constitutes surveillance of union activities within the proscription of Section 8(a)(1) of the Act, and that his statement to Barley of the Friday before, in context, constitutes -a threat to engage in sur- veillance of an employee union meeting, also within the meaning of Section 8(a)(1).31 g. May 12 - Walnut Grove Church Noah Wright testified that, while attending the May 12 afternoon meeting outside the Walnut Grove Church at which some 30 to 40 employees were present, he saw Su- pervisor Ralph Mayes, accompanied by someone he knew only as Otis, driving north on Highway 27, some 30 yards away. Approximately 15 minutes later, or around 4:30 p.m., Wright saw Everett Roberson also driving north on Highway 27. Ten to fifteen minutes later Su- perintendent Roberson was seen by Wright driving south on the highway. According to Wright, Mayes seemed to be driving at a normal rate of speed, which because of the hospital nearby appears to have been 45 m.p.h., and Roberson much slower. Mayes was not questioned on this matter. Everett Roberson, however, testified that on this occasion, while on the way to his brother's house at Oak Hill, he noticed a group of people gathered outside the little church, some 40 feet from the highway and that he recognized a few who worked at the plant. According to Roberson, he drove on up to a truck stop, turned around, came back past the church, where again he noticed the people assembled in the churchyard, and "went on about my business." Roberson testified that, although he did not know what it was all about, he con- cluded afterwards that it might have been a union meet- ing. On cross-examination Roberson admitted that he turned around and went back "to see what it was," and, apparently recognizing Union Representative Ted Benton, "figured by then that it was a union meeting." I find these facts insufficient to establish surveillance on the part of Supervisor Mayes. With respect to Rober- son, however, although I associate no connection between his trip and that of Mayes some few minutes earlier, I am of the opinion that he accidentally stumbled on the employee meeting and that curiosity caused him to explore further. I conclude that, in slowly driving back past the union meeting, Roberson technically engaged in surveillance within the meaning of Section 8(a)(1) of the Act. 2. Threats of serious harm The complaint in paragraph 13 alleges that the "Respondent, on or about April 20, 1964, in a notice to its employees posted at its plant and mailed to its em- ployees ... threatened its employees in and about the vicinity of its plant that they would suffer serious harm if they joined or engaged in activities on behalf of the Union." This allegation has reference to the first num- bered paragraph of the notice posted on the bulletin boards and mailed to employees, attached hereto as Ap- pendix C. This provision reads as follows: (1) This matter is, of course, one of concern to the company. It is also, however, a matter of serious concern to you and our sincere belief is that if this union were to get in here, it would not work to your benefit but, in the long run, would itself operate to your serious harm. Counsel for the General Counsel, however, made it very clear, in reply to my inquiry, that the notice itself was not asserted as a violation of the Act, but was sub- mitted into evidence solely "to show the animosity of the Respondent towards unionization and to show what the rules were of the Respondent in reference to what activi- ties might be carried on in the plant and when, as far as or- ganizational efforts." The Board, in a contemporary Kayser-Roth case32 involving the Burlington, North Carolina, plant, and issued since the hearing in this proceeding closed, found it unnecessary to pass upon the legality of this same provision of the same notice standing alone,33 but did so on the ground that, because of other unlawful conduct and particularly a personal reference to the notice provision to employees, the notice as a whole "was calculated to and had the effect of restraining and coercing employees in the exercise of Section 7 rights." While technically, perhaps, the issue was not litigated herein, I deem myself bound by the Board's decision therein and find that the notice, containing the first num- bered paragraph referred to above, had the effect of restraining and coercing Respondent's employees, and therefore constitutes 4 violation of Section 8(a)(1) of the ACt.34 31 Neither my findings of fact nor my conclusions of law as to this in- cident is predicated in any way upon the discredited and worthless testimony of James Hall. 33 Kayser-Roth Hosiery Co, Inc., 158 NLRB 28. a3 But for a very few word changes, and nothing changing the import, the notices are identical. 34 C£ Jackson Co., Division of Sumner Williams, Inc., 160 NLRB 1781, where, in an objections to election case, the Board held that, in the absence of other objectionable conduct, a similar statement published in a letter to the Company's employees did not have any substantial impact on the employees' freedom of choice in a forthcoming election. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Violations supported by the testimony of James Hall James Hall, one of the company employees who was called by, and testified on behalf of, the General Counsel, testified at length with respect to all phases of the General Counsel's case. In addition to a number of alleged union conversations with company officials Troy Ward and Everett Roberson, Hall testified to matters relating to the employee practice of removing hose from the plant.35 During the many hours that Hall appeared on the witness stand, he testified in a most unconvincing manner. Apart from evasive and dilatory tactics and generalizations, time after time, Hall, even on direct examination, repu- diated his own testimony, and at times his testimony became absolutely incredible . Thus, initially, in response to the General Counsel's question as to how many socks he received and took from the plant during his 2 years of employment, Hall replied, "several pair." As his testimony progressed , all on direct examination , this esti- mate was upped to 10 to 15 dozen, then to "twenty-five dozen altogether," and finally, to 600 pair, or 50 dozen. Hall's affidavit conceded that this figure might have been as high as 75 dozen, Later in his testimony , Hall stated that he had not taken any socks during the past year, but that he still had at home two dresser drawers filled with socks from the plant. At another point on direct examina- tion, Hall testified that he never heard of anybody being discharged for talking except Ronnie Patton , one of the alleged discriminatees herein . On cross-examination he reiterated this, and then admitted that his own mother had been discharged for talking the prior April and that he had been told by Roberson that she had been discharged for talking. Even the General Counsel was surprised at Hall's testimony , for, on redirect examination for the first time, Hall testified at length to a number of conversations with Roberson allegedly having taken place right up to the November 18 election . In fact, Hall testified generally that Roberson talked to him about the Union everyday or every other day from the time of his mother's April discharge until 2 or 3 weeks before the November 18 election. Not only did the General Counsel indicate that he knew nothing about the later conversations before Hall took the witness stand, which, if believed, admit- tedly would be most damaging to the Respondent's case, Hall in his second pretrial affidavit taken on the 21 st day of October made no mention of these later conversations with Roberson. Had they, in fact, taken place as testified to by Hall, in view of Hall's extreme prounion senti- ments, it is completely unexplainable why he had not set them forth in his affidavit taken at the time they allegedly were taking place or later apprised counsel for the General Counsel as to such conduct. While Ward and Roberson both admitted to talking with Hall from time to time concerning the Union, as well as with other em- ployees, and while not questioning the fact that some of that which Hall testified to undoubtedly was a fact or took place, the difficulty is that on the record it is next to impossible to determine what is true and what is not. Based upon my close observation of his demeanor during his lengthy testimony on the witness stand, his evasive and exasperating manner in answering questions of coun- sel, including his own counsel as well as those asked by 31 Four of the alleged discrimmatees herein were discharged assertedly for stealing socks. 36 In view of the above , I shall recommend that all complaint allegations which are supported only by Hall's testimony, including the amendment me, coupled with the numerous inconsistencies and repu- diations in his testimony , I find Hall to have been a most dishonest witness and one in whom I can place no faith as to veracity or respect. I consider his testimony, all phases of it, to be totally unreliable and absolutely worthless, and, accordingly, have not, in any way, in making my findings of fact or conclusions of law herein, relied upon or even considered his testimony.36 4. The Alveida Harris subpena incident During the course of the hearing and toward the close of the General Counsel's case an incident occurred which subsequently resulted in my granting the General Coun- sel's motion to amend the 8(a)(1) allegations of the com- plaint. Employee Alveida Harris, who was under subpena to testify for the General Counsel, after several days of sitting in the courtroom early in the proceeding, asked and received permission from the counsel for the General Counsel to go back to work, subject to being called again when needed. On Wednesday afternoon, June 4, Harris, having been apprised by her floorlady, Rhoda Housley, that she was wanted at the courthouse, and desiring not to appear, "told her (Housley) to call and ask if a doctor's excuse would excuse me." According to Harris' further testimony, Housley came back and told her "that I didn't have to come." Notwithstanding this, Harris left the plant and went by the jail, where, in answer to her question, she was told that she could be fired and put in jail if she did not honor her subpena. Harris left the jail and went to the courthouse where she asked to speak to Everett Roberson . Roberson was informed of this just before the hearing was momentarily recessed . Roberson, in a brief conversation with Harris in the downstairs hall, was apprised by Harris as to what she had been told at the jail, and asked by Harris if it were true that she could be fined or put in jail for not honoring a subpena. Roberson's answer, crucial as it is, is in dispute. Thus, Roberson testified that he told her, "Al- veida, I don't think that's right," and that just then people were entering the hall from the courtroom and Harris left. Harris testified, when initially asked by the General Counsel, that Roberson said "I could go." When questioned by counsel for the Respondent , she initially testified that she did not understand what Roberson had said, but that Roberson did tell her that he did not think she could be fined or jailed for not appearing. On redirect examination, Harris testified that "he just told me I didn't have to - wait, he said to go on if I didn 't - I didn't have to testify or something on that order." She later testified that she did not know what else he said because of the noise in the hall but that "he told me to go. He told me I could go," and still later , "he just said to get out of here and go on." In any event , it is undisputed that the conver- sation lasted less than 2 minutes and that Harris left the courthouse immediately thereafter and went home. She subsequently was called as a witness by the General Counsel and, in addition to this incident, Harris testified briefly as to two union conversations, one with Roberson and the other with Troy Ward, the previous April.37 At the conclusion of Harris' testimony , over the objection of counsel for the Respondent, I granted the granted at the hearing pertaining to Roberson "between October 1, 1964 and November 18, 1964," be dismissed. 39 Harris had been discharged in April 1964 , and was subsequently reinstated pursuant to the terms of the settlement agreement in August. KAYSER-ROTH HOSIERY CO. 381 General Counsel's motion to amend the 8(a)(1) allega- tions of the complaint to include the above incidents.38 First, as to Housley's statement to Harris that she did not have to attend the hearing, in view of the fact that it was not shown that Housley, who was not questioned on this matter, was aware that Harris was under subpena, a vital and necessary requisite, I find without merit the al- legation as it pertains to Rhoda Housley. As to Roberson, however, even on his testimony alone, I am of the opinion that technically he was guilty of discouraging Harris from honoring a subpena, and so find. In all fairness, however, I do feel that, under these circumstances, including the full cooperation extended by Roberson on behalf of the Respondent to the General Counsel throughout the hear- ing with respect to the latter's employee witness, and the fact that Harris, whose extremely brief testimony on be- half of the General Counsel was confined to two alleged 8(a)(1) incidents , certainly cannot be considered a vital witness to the General Counsel's overall case, Roberson did not possess an intent to obstruct the Board's processes, which, but for this explanation, could well be inferred from the plain language of the amended allega- tion. 5. Additional interference, restraint, and coercion Glenn Earl Keylon, a former fixer employed in the Respondent's knitting department, testified that a few days after a union meeting in April at Rattan Bridge, Knitting Division Superintendent Everett Roberson ap- proached him at his job. During the rather lengthy discus- sion, according to Keylon, Roberson asked him if he at- tended a meeting at Rattan Bridge a few evenings before. When Keylon replied in the affirmative, Roberson said, "I never would have thought that of you. Do you feel in favor of the Union?" When Keylon again replied in the affirmative, in answer to Roberson's further inquiry, Keylon discussed with him his reasons for wanting the Union. During the course of this, Roberson interrupted to ask, "You mean to tell me that you would take a chance of putting you and your wife both out on the street ?" Toward the end of the conversation, Roberson asked Keylon if he did not believe that the Company will move the mill or shut it down if the Union came in. When Keylon replied that he did not think so, Roberson told him that it was something for him to consider and that he should give it more thought. As Roberson was not specifi- cally questioned on this, Keylon's testimony stands un- refuted. I find that Roberson's question to Keylon as to whether he would take a chance of putting him and his wife out on the street to constitute a threat of Keylon's job security, and, as such, a violation of Section 8(a)(1) of the Act.39 I further find that Roberson's statement to Keylon on this occasion to the effect that he should give more thought as to whether the Company will move the mill or shut it down if the Union came in to be violative of Section 8(a)(1) of the Act.40 The following evening while on the job, Keylon was told by Supervisor Troy Ward that Ralph Mayes, first- shift supervisor of the knitting department, wanted to see him in his office. Accompanied by Ward, Keylon went to Mayes' office aand in Ward's presence , Mayes said to Keylon, "I hear you joined a little union group." When Keylon replied that he had and in turn was asked whether he thought that the Union would "do us any good," or "do us more harm," Keylon replied that he thought the Union would help the employees. When Keylon, refer- ring to the company rules on talking, said that things could not get much rougher and indicating that the Union was bound to help, Mayes replied, "I don't hardly think they will ... but it is something for you to think about." Continuing, Mayes said, "We might all be looking for a job ... if everybody was out of a job it would be hard for us all to go back to work some place else." When Keylon indicated that he understood that but that he still believed the Union would help, Mayes said that if that is what you think and really believe, "if it comes in, I hope it helps us all." In concluding, when Keylon indicated that higher wages by employees should also result in higher wages for supervisors, Mayes laughed and said, "Well, I hope so." Troy Ward, although present, did not enter into the discussion. As neither Mayes nor Ward testified concern- ing this incident, Keylon's version is not refuted. I find that the statement of Mayes, uttered during the instant conversation, to the effect that "We might all be looking for a job ... if everybody was out of a job it would be hard for us all to go back to work some place else," to constitute a prediction of the loss of jobs if the Union were to win the election , and as such , under the circum- stances, a violation of Section 8(a)(1) of the Act.41 Conway Ballard, a boarding room employee, testified to several union conversations allegedly had with Charlie Kelley, boarding room supervisor, with Elmer Kelley, vice president and general manager, and with Kenneth Queen, assistant general superintendent of the seamless division. While I have very strong reservations concern- ing the credibility of this witness generally, the fact remains that none of the company officials to whom the statements are attributed testified with respect thereto. In fact, Charles Kelley testified only briefly from a hospital bed on one matter alone, Kenneth Queen's testimony was limited to one alleged incident, and Elmer Kelley, who was retired from the Company August 11, 1964, did not testify at all. Accordingly, I credit Ballard's testimony as to these specific conversations and only as to these con- versations. Thus, Ballard testified that about the first of May, Charlie Kelley walked over to him and asked'him "if I would go with the Union." When Ballard replied that he would, and after Kelley registered concern that Ballard would get involved with the Union, in reply to Ballard's inquiry, Kelley stated that "he thought it would mess my chances up of advancing with the Company." I find Kel- ley's prediction that Ballard's involvement with the Union would mess up his chances of advancing with the Company to constitute a violation of Section 8(a)(1) of the Act.42 38 Thus , par 21 (a) of the complaint reads as follows- 38 Lyon, Incorporated, 145 NLRB 54, enfd 341 F.2d 301 (C.A. 5) Respondent, by its supervisors and agents , Floorlady Rhoda Housley 40 Philip Carey Manufacturing Company, 140 NLRB 1103. and Plant Manager Everett Roberson , on or about June 2, 1965 , 41 Des Moines Foods, Inc., 129 NLRB 890. discouraged its empolyee , Alveida Harris , from honoring a subpoena 42 Haynes Stellite Company, 136 NLRB 95. of the National Labor Relations Board which had been duly served upon that employee. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A day or two later, Kelley asked Ballard who was for the Union, to which Ballard replied that he did not know, and then asked Ballard , "Well, don't you think if the Union gets in that the mill will close down ?" to which Ballard replied that he did not think so. Kelley's question- ing of Ballard as to which employees were for the Union constitutes unlawful interrogation within the meaning of the Act.43 I further find that Kelley's question of Ballard concerning the mill closing down if the Union gets in war- rants a finding , under the circumstances , of a coercive in- ference, and, as such, is violation of Section 8(a)(1) of the Act.44 Approximately 1 week later, Charlie Kelley again in- dicated to Ballard that his involvement with the Union "might hurt my changes of advancement with the Com- pany." Again , such statement constitutes a violation of Section 8(a)(1) of the Act.4e About 1 week later, Elmer Kelley asked Ballard why he had anything to do with the Union , and, upon receiving his reply, continued, "Don't you know that your having something to do with the Union will hurt you more than it will help you." Elmer Kelley then stated to Ballard that "if the Union did come in ... the mill wouldn't be there to see how it would affect us ...." When Ballard replied that that was a chance they would all have to take, Elmer Kelley asked him if he thought the Union would come in, to which Ballard replied in the affirmative. Elmer Kelley's statement to Ballard indicating that his association with the Union would hurt him is violative of Section 8(a)(1) of the Act,46 as is his statement concerning a change in lo- cation of the mill if the Union were to come in .47 A week or two later, while Ballard was driving Kenneth Queen to the airport , Queen told Ballard that Elmer Kel- ley had talked to him about Ballard , at which point Bal- lard asked whether his signing a union card would hurt his chances of advancing with the Company. Queen replied that he did not think so, but wished that Ballard had not fooled with the Union. As the complaint contains no al- legation with respect to this incident, I do not find Queen's reply to constitute a violation. Noah Wright , a former knitter employed in the Respond- ent's knitting department , testified that several days after the initial leaflets were distributed in March, which would have placed it about March 20, Cecil Housley, then supervisor of the third shift in the knitting depart- ment, approached Wright while at his work station, and asked him how he felt about a union. When Wright replied that he did not know and queried Housley as to how he felt, the latter replied that unions are not any good . At this point, Wright volunteered that unions may be good in some places but that he felt Kayser-Roth was too big an industry to organize . Three or four weeks later, placing the conversation toward the third week in April, Housley again walked up to Wright and asked him how he felt about the Union. When Wright replied that he felt the same way as he had before , and inquired as to whether someone had told Housley that he was advocating the Union, Housley replied in the negative . Housley, who quit the Respondent's employ on August 16, 1964, did not testify in this proceeding. Therefore Wright's testimony stands uncontradicted. In view of the sur- rounding circumstances , including the background of many other coercive statements and the Respondent's hostility to the Union during this period , I find Housley's interrogation of Wright on these two occasions as to how he -felt-about the Union to constitute unlawful interroga- tion within the meaning of Section 8(a)(1) of the'Act.48 On April 8, Charlie Kelley asked Guyman Hill, an em- ployee and one of the union leaders, whether he had heard about the Union, and, upon receiving an affirmative reply, queried Hill as to where the union meeting was going to be held. Hill told him that it was at the Wolf Creek School. The following day, Charlie Kelley again approached Guyman Hill , and told Hill that his brother, Elmer Kelley , told him that "I was needing my job aw- fully bad and he gave me a job and he wouldn't have thought I would have done anything like this." On Mon- day morning, April 20, after Guyman Hill had the day be- fore solicited a signature on a union card, Charlie Kelley apprised Hill of his having heard about the incident, and said to him "I thought you quit fooling with this Union." Again, as Charlie Kelley was not questioned as to these incidents , the testimony of Hill, who impressed me as a credible person , stands unrefuted. I find that Charlie Kel- ley's statement to Hill, indicating that Elmer Kelley had registered concern that Hill had associated himself with the Union after having been given his job, coupled with Kelley's statement the following Monday, to the effect that he thought that Hill had quit fooling with the Union, to constitute an implied threat to his job security and an implied warning to cease union activity, respectively. I find these both to be unlawful interrogation, rendering Kelley's earlier question of Hill concerning the location of a union meeting also to be violative of Section 8(a)(1) of the Act.49 Kenneth Toole, one, of the alleged discriminatees in this proceeding , testified that on April 20, Everett Roberson rebuked him for going to the restroom, saying that he should have gone during his supper period. Roberson then said, "You think you are able to leave your machine anytime the Union comes in?," to which Toole replied that he did as long as he kept his job up . According to Toole, 3 days later Roberson approached him, asking him how everything was going in the Union. When Toole said that he believed that it was getting better every day, Roberson told him that "union people aren't doing nothing but telling you people a bunch of lies." Toole countered with the question, "How do we know that you are not telling us a bunch of lies ," and stating to Rober- son, "If you don't think the Union is doing better than the Company is , what is worrying you ...." Roberson asked Toole whether he actually believed that the Union could do better than the Company, and upon receiving an affirm- ative reply , stated to Toole, "If that's the way you feel, the rules still apply to you." For reasons hereinafter ex- pressed with respect to Toole's veracity , I cannot and do not credit this man's testimony . Accordingly , and not- withstanding that Roberson was not questioned on these 43 Tidelands Marine Service, 140 NLRB 288, Mose Franck Heating and Air Conditioning, 150 NLRB 850 94 See N.L.R B. v. Kingsford, dlbla Kingsford Motor Car Co, 313 F.2d 826 (C A. 6), enfg. as modified 135 NLRB 711. 4' Haynes Stellite Co., supra. 4' Lyon, Inc., supra See Wilder Finishing Co, 138 NLRB 1017. 46 N.L R.B . V Flemingsburg Manufacturing Co., 300 F.2d 182 (C.A. 6), enfg. 131 NLRB 492. 49 See Mead's Market, 148 NLRB 383, and The Great Atlantic & Pacific Tea Co., 150 NLRB 1222 KAYSER-ROTH HOSIERY CO. 383 two conversations and that Toole's testimony with respect thereto remains unrefuted on the record, I refuse to make a finding based upon his testimony. James McMillian, one of the alleged discriminatees herein, testified that about April 1, Supervisor Cecil Housley asked him if he were for the Union, to which McMillian replied that he, was. McMillian further testified that a week or 10 days later, Cecil Housley, in the presence of employee Jerry Jones, told him that if anyone approaches him about the Union he should tell him that he does not want anything to do with it. In the absence of any evidence tending to refute Mc vlillian's testimony in this regard, it is credited. I find Housley's directive to McMillian to tell anyone who approaches him about the Union that he did not want anything to do with it to con- stitute a violation of Section 8(a)(1). This, coming after Housley's earlier interrogation of McMillian as to his union sentiments, renders the former question a violation of Section 8(a)(1) as well.50 Roy DeVault, a fixer in the knitting department, credibly testified that on Monday, April 13, immediately following the union meeting on April 11, Everett Rober- son asked him what he thought about the union meeting, who told him about the meeting, and whom to get in touch with to see the union organizers. Having played ignorant to these matters, DeVault was then told by Roberson that he did not want him' to get into anything he could not get out of, that he was in pretty deep, and that he had already signed a union card. Roberson further stated to DeVault on this occasion that he should have told him and asked his advice before attending the union meeting. I find violative of Section 8(a)(1), Roberson's interrogation of DeVault on this occasion as to what he thought about the union meeting, who told him about the union meeting, and whom to get in touch with to see the union organizers. I further find violative of the Act, Roberson's statement that he did not want DeVault to get into anything he could not get out of, that he was in pretty deep. 51 On Saturday, April 25, the day before a scheduled union meeting at Frawley's Auction Barn, Everett Rober- son asked DeVault if he expected a big crowd tomorrow. Shortly thereafter, Roberson approached DeVault while he was working on his knitting machine, and asked him how the Union was doing. When DeVault replied that he did not know, Roberson asked him if he had stopped keeping up with the Union. When DeVault assured Roberson that that was not the case, Roberson stated to him that if the Union came in the first thing it would ask for would be more money, and that the Company was paying all that it could pay then. DeVault asked Rober- son if he thought the plant would close if the Union came in and Roberson replied that that was a gamble we would all have to take, with which DeVault agreed. Roberson admitted that he talked' with DeVault, as he had with many employees, about the Union, but that he could not recall any specific conversation. Roberson denied that he at any time told DeVauli or implied to him that the plant would close down, but admitted the possibility that he could have, had a lot of conversations with employees about the Union where a closing of the plant was discussed. I found DeVault a very honest and straightfor- ward witness and I credit his testimony as to the above conversations. A perusal of this conversation between DeVault and Roberson reflects that with one exception matters expressed by Roberson are protected by Section 8(c) of the Act.52 However, with respect to Roberson's question of DeVault as to whether he had stopped keep- ing up with the Union, I find such to be unlawful inter- rogation and a violation of Section 8(a)(1) of the Act. Finley Fugate, a boarding room employee, testified that while working on his machine on April 10, Charlie Kelley asked him if he had heard anything about the union meeting, to which Fugate replied in the negative. Kelley then told him that the union man was crooked, that if he were Fugate he "wouldn't fool with that ... they only pay you $1.25 an hour." When Fugate then stated to Kelley that "I bet they would close the plant down if the Union came in here," Kelley replied, "Yes, I have an idea they would," and that the Company would get rough over that Union. On the following day, April 11, Charlie Kelley again spoke with Finley Fugate at the latter's machine, and stated to him that some of the people there were too old to work under a union, that "the Union would fire you if you get 45," that the Union would make you take physicals, and that the Union would pay you $1.25. Fugate admitted that he "kind of egged it on" and that he, Fugate, was the one who initiated the matter con- cerning the closing of the plant. Again, Charlie Kelley did not testify and Finley Fugate's testimony remains uncon- tradicted. In context, particularly the fact that Fugate ap- pears to have been the one interested in continuing the union discussions, I find such matters expressed by Kel- ley during these two conversations not to be violative of Section 8(a)(1) of the Act. Robert Smith, a preboarder in the boarding room, testified that about the middle of April, while at his preboarding machine, Charlie Kelley said to him that he had noticed that he (Smith) had been going to union meetings and, further, that if he were Smith he would not attend them, that the Union "was no count." Smith further testified that a day or two later; either at the plant or a local beer joint, Charlie Kelley told him that the Union would not have to pay over $1.25 if it came in, and further, that in such event, employees would have to be examined just like recruits did for the Army. Smith's testimony is not refuted. I consider Kelley's statement to Smith, that if he were Smith he would not attend union meetings, to constitute an implied threat not to engage in union affairs.53 As to Kelley's statements concerning pay and examination for employees, I consider these to con- stitute mere opinion, and as such, not violative of the Act. Burton Eugene Yates, a knitting department employee, and one of the alleged discriminatees, testified that just before the transition from the old mill to the new mill, which would have placed it in the latter part of March, Supervisor Cecil Housley approached him while at his so See Gainesville Publishing Company, 150 NLRB 602; Ripley Manu- facturing Company, 144 NLRB 1132; and Purity Food Stores, Inc., 150 NLRB 1523. 51 See Mr D's No. 2, Inc., 145 NLRB 1227; American Compressed Steel Corporation, 146 NLRB 1463; and Moulton Manufacturing Com- pany, 152 NLRB 196. 12 Sec. 8(c) of the Act reads as follows (c) The expressing of any views, argument, or opinion, or the dis- semination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. 53 Radio Industries, Inc, 101 NLRB 912. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machine and told him he had heard that the employees were going to try to get a union, wanting to know whether this were true. When Yates replied in the affirmative, Housley told him that "he thought we was messing up, that what privileges we had would be taken away from us if the Union came in." Upon reporting to work at 11 p.m. on Sunday, April 12, following the union meeting on the Saturday before, Housley approached Yates and asked him if they had a pretty good crowd at the union meeting. When Yates replied that they did, Housley asked him if he had attended, to which Yates replied in the affirmative. On the following Sunday night, April 19, after another union meeting the Saturday before, Cecil Housley again approached Yates, asking him what happened at the union meeting. The testimony of Yates as to these con- versations is not contested, and is credited. I find as viola- tive of Section 8(a)(1) of the Act, Housley's interrogation of Yates as to whether the employees were going to try to get a union, whether they had a pretty good crowd at the union meeting, and whether he attended, and as to what happened at the union meeting. I further find as violative of the Act Housley's statement to Yates that he thought the employees were messing up, and that what privileges they had would be taken away from them if the Union came in.54 Yates testified to a fourth conversation with Housley allegedly having taken place in the smoking booth, and al- legedly following another Saturday meeting of the Union at Rattan Bridge about a month later. According to Yates, during this conversation Housley allegedly asked Yates about the employee attendance and whether Yates thought they had enough people signing cards to bring the Union to a vote. There is no evidence of a Rattan meeting this late, that is, l month after April 19. I do not credit his testimony as to this conversation. However, his testimony as to the three earlier conversations with Housley is not contested and is credited. Burton Yates testified further that a few days later, which would place it somewhere around the latter part of May, Everett Roberson approached him just prior to the termination of his third shift, approximately 6:45 am., asking him if he had signed a union card and whether he had actually signed the letter which had been sent to his office containing signatories of union adherence. After a further discussion between the two concerning the rela- tive merits of the Union, Roberson, according to Yates' testimony, said that it did not make too much difference about Yates' signing the union card "because I have been there 3 months and I was there on a 3-month trial and that I wouldn't be eligible to vote anyway." Roberson then, al- legedly, stated to Yates that "He didn't have to have a reason to let me go anytime ... during the 3 months, that he could let me go at any time." Roberson was not questioned on this conversation and therefore Yates' testimony remains uncontradicted. While it is not a per se violation for a supervisor to question an employee as to whether the latter signed an authorization card, and con- ceding further that it is not a per se violation for a super- visor to discuss the merits of unionism with an employee, in the context of the expressed opposition to the Union as reflected by the earlier statements of Roberson, I con- sider Roberson's reference to Yates' signing a union card, followed by the statement that he did not have to have a reason to let Yates go anytime , to constitute a threat of discharge , and, as such, violative of Section 8(a)(1) of the Act.55 Employee Betty Stout , another of the alleged dis- criminatees , testified that on September 24, while work- ing at her job Third Shift Supervisor Roy Stinnett asked her if she had been talking to the girls about the Union, to which she replied that she had not, "but I would be glad to tell them anything they wanted to know that I knew." This incident by itself, I find not to constitute a violation of Section 8(a)(1). Stout testified that just about every night, off and on, between July 5 , when the employees came back from their vacation and August 17, when she went to the hospital, Roy Stinnett would tell employees while at supper or taking breaks that they had better leave the Union alone, that if the Union got in, the Company was going to close the mill down , and the employees would not have any jobs. Roy Stinnett was not questioned with respect to the matters testified to by Stout. I credit Stout's unrefuted testimony as to the September 24 in- cident, but, in view of the generality of the July 5 through August 17 assertions , and the fact that not one of the em- ployees corroborated her testimony in this regard, cou- pled with the fact that Stout's testimony generally ap- pears unreliable , she having repudiated her affidavit, I find the practice attributed to Stinnett during. July and August not to have occurred. Betty Stout further testified that about the first of Au- gust she had a conversation with Clayton Strictland, a de- tective employed by Mark Lipman Service, Inc., which at the time was investigating theft at the Respondent's plant, and during the conversation , Strictland asked her if she had joined the Union. She allegedly replied that she had and he then asked her if she knew anybody else who had. Stout could not recall what her reply, if any, was. Apart from the fact that the interrogation attributed to Strictland about the first of August is not alleged in the complaint , and notwithstanding the fact that Strictland, for reasons hereinafter expressed , did not testify in this proceeding, I do not believe Stout's testimony in this re- gard and refuse to give it credence. Charles Fugate , a former knitter employed in the knitting department '56 who appears to have been a strong advocate of the Union , testified that about 3 weeks before his discharge, which would have placed it about April 3, Everett Roberson asked him what he thought about the Union. When Fugate replied that he had not thought much about it , Roberson said, "You must have, you signed a card." Roberson then asked him how the Union was going to help him, to which Fugate complained about sweeping the floor and not getting paid for it. According to Fugate, Roberson also said that "We can say this is women's work and put women to do the knitting," to which Fugate replied that in that case, the Company would have to give him a job elsewhere . Fugate further testified that Roberson told him that this was a big com- pany and that it would close down before the Union will come in here. Roberson further allegedly said that the Company had a mill in Puerto Rico and that it may send Fugate there. Roberson denied making the statement 54 Purity Food Stores, Inc, supra. See also Hans J Hvide, et al., dlbla Port Everglades Towing Co., Ltd., et al., 134 NLRB 795. 15 Universal Packing & Gasket, 151 NLRB 1528, and Almeida Bus Lines, Inc, 140 NLRB 280. sc Fugate, who is frequently referred to on the record as Pee Ronnie, was discharged on April 24. Pursuant to the terms of the August settle- ment agreement, he was made whole by the Respondent with the payment of $ 600. KAYSER-ROTH HOSIERY CO. 385 concerning women's work and women doing the knitting, but was not specifically questioned about the rest of the conversation. I credit Fugate's testimony here. I construe Roberson's statement that the Company could put women to do the knitting to be a threat of job loss , and his statement that the Company would close down before the Union will come in, as a threat, each of which constitutes a violation of Section 8(a)(1) of the Act. Fugate further testified that 3 or 4 days later at the local poolroom, Supervisor Troy Ward told him that this was a big company , that the Union was not coming in there. Ward told him that the Company could knock it off their income tax before they would let the Union come in. When Fugate protested that the Company had just moved into a new building and for that reason would not close it down, Ward said that, "We will close it down ... that he wasn't worried about a job for himself." Ward said he could get another job but that Fugate would be out of a job. Fugate testified that a day or two later at the poolhall Troy Ward again told him if the Union got in there they would close the mill down , and that Fugate would be out of a job and that he had better think about it. Fugate testified that 2 or 3 days later , Ward, again at the poolhall, told him that the mill would close down and wanted to know what Fugate was doing. As to the above statements by Ward, even if the poolroom union discussions were ini- tiated by Fugate , such would only permit Ward to offer his opinions and would not provide him with the right to make statements which constitute threats or coercion. I find Ward's statements to Fugate concerning the closing of the mill if the Union were successful, that Fugate would be out of a job, and that he had better think about it, as threats , clearly violative of Section 8(a)(1) of the Act.57 Fugate further testified that 3 or 4 days before he was discharged, which would place it about April 20, he was sitting with Troy Ward at the mill , and in reply to Fu- gate's statement that he wished his income tax would come back, Troy Ward said, "Next year if that Union gets in here you won't have no income tax to come back because they will close this place down ... that it was a big place and they would knock it off for income tax." Troy Ward testified that these poolroom discussions con- cerning the Union were initiated by Fugate and that the latter insisted , to the point of aggravation , arguing with Ward over the Union. While I believe Ward in this re- gard, Ward did not deny making the statements and, ac- cordingly , I credit Fugate 's testimony in this regard. As in the case of the poolroom conversations , Ward's state- ment to Fugate on this occasion also constitutes a threat to close the plant within the proscription of Section 8(a)(1) of the Act. William Eddie Bowman, a fixer in the knitting depart- ment and one of the union leaders, testified that on or about April 1, Everett Roberson asked him what he thought about a union. When Bowman replied that he thought it was a good thing , Roberson stated that he was opposed to the Union and that all it was after was union dues. Bowman testified that about a week later Roberson approached him at his machine and apprised him of the fact that he had information that his wife was influencing people to go to union meetings . Roberson was not questioned about this second conversation, and, as to the first, Roberson admitted talking to Bowman about the Union but testified that he never interrogated Bowman and that it was Bowman who initiated the conversation. I find the conversations to have occurred as testified to by Bowman. I find that Roberson's statement to Bow- man, apprising him of the fact that he had information concerning his wife influencing people to go to union meetings was intended to create the impression of surveil- lance, and that such conduct constitutes a violation of Section 8(a)(1) of the Act.58 Notwithstanding this finding, however, I find nothing unlawful as to Roberson's earlier statements to Bowman. Bowman, who admitted to being a very close personal friend of Supervisor Troy Ward, testified that on several occasions in April, Ward asked him how he felt about the Union and registered his own opposition to it, by saying that in his personal opinion if they voted the Union in, the Company would close the plant. Bowman admitted that in discussing the union affairs with Ward, Ward always premised his statements with the fact that he was ex- pressing his personal opinion. In view of the personal relationship between Ward and Bowman, and the fact that Ward emphasized that his statements were but his opinion, I find the discussion to involve merely the pro's and con's of unionism and constitutes no more than the free exchange of views. Accordingly, I find that these statements, in context, do not constitute a violation of the Act. 59 Finally, Bowman testified that "approximately in April" his friend Troy Ward brought a bundle of socks back to James Hall, a knitter, and that he heard Hall ask Ward if they were going to fire him over the Union. Ward, according to Bowman, replied in the negative, and, refer- ring to bad work, told Hall "we can get enough socks in 5 minutes to fire any employee." In the context of Hall's question, I find Ward's reply to constitute an implied threat, violative of Section 8(a)(1) of the Act. Shirley Fugate, a sewing room employee who is alleged as a discriminatee herein for having rendered testimony in this proceeding,60 testified that on or around April 15, 1964, because she had heard a rumor that she was going to be fired, she asked to speak with Elmer Kelley, the general manager. She was sent for by her supervisor, Parker Bean, and in the presence of Everett Roberson, in reply to her inquiry, Bean assured her that she was not going to be fired because she had attended a union meet- ing. The conversation concluded with Bean's statement that "there wasn't anybody going to be hurt except the people," that he could not see that the Union was going to help the employees in any way, and that the Company was going to fight it all the way. With respect to this matter, Everett Roberson testified that because it had been reported to him that there was a rumor going around concerning some of the girls being fired on account of the Union, he decided that the girls should be assured that they were not going to be fired because of the Union. Ac- cordingly, several of the girls, including Shirley Fugate, Alveida Harris, Frances Hill, and Peggy Wright, were called into the office and reassured in this regard. While the record evidence as a whole corroborates Roberson's version as to the fact that he called a number of girls into 57 See Charles T. Reynolds Box Company, 139 NLRB 519. See also Great Leopard Market Corporation, Inc., d/b/a King Jack's Foodarama, 150 NLRB 1384. 11 Gainesville Publishing Company, supra. 5s Specialty Paper Mills, Inc, 152 NLRB 288. 60 In fact, Fugate's earlier testimony upon which the 8(a)(3) and (4) al- legation is predicated, is limited to the one incident here recited. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his office and talked with them at this time, neither Roberson nor Parker Bean, who was not called as a witness,61 were questioned concerning the additional statements attributed to Bean by Fugate on this occasion. I find that they were uttered as testified to by Fugate. The statements made by Bean during this conversation I find not to be of a coercive nature. Rather, I find them to be expressive of the employer's position regarding the Union, a position which it had a legal right to convey. Bean's reference to the people was not confined to union people, but to the entire work force. Similarly, his state- ment that the Company would fight the Union expressed only that which the Company has a legal right to do. His further assertion that he would use every legal means to keep the Union out has been held not to violate the Act. Standard Trucking Company, 134 NLRB 371. Also, an employer's conduct in telling employees that his honest belief was that the Union would not be profitable for them has been held to be lawful. Henry I. Siegel Co., Inc., 143 NLRB 386. Accordingly, I find nothing in this conversa- tion with Bean to be violative of Section 8(a)(1) of the Act. Frances Hill, another sewing room employee, who, like Shirley Fugate, is alleged herein as a discriminatee for having given testimony in this proceeding, testified that on April 14, which I find to have been April 15, she too, was called into Parker Bean's office and told by Bean that a rumor was going around that those who had attended the Wolf Creek union meeting were going to be fired. He told her that there was nothing to this "because he knew he couldn't fire me over a union" but that "he could get me messed up." At that point, Everett Roberson, who had been present right along, stated that he could not un- derstand why employees would talk to a complete stranger when they could come to the Company. Again, there is no record testimony, including that of Roberson, which refutes Hill's version of the entire conversation. I find it to have occurred as testified by Hill. An em- ployer's conduct in telling an employee that she could get "messed up" because of her union activities is tan- tamount to a threat, and as such, is coercive in nature and a violation of the Act. 62 Accordingly, I find that Bean's warning that he could get Hill messed up to constitute a violation of Section 8(a)(1) of the Act. Peggy Wright, another sewer who is alleged as a dis- criminatee herein, testified to a conversation on April 15 with Parker Bean and Everett Roberson which was very similar to the conversations had with Shirley Fugate and Frances Hill. However, in this conversation, in addition to 'assuring Peggy Wright that she would not be fired because of the Union, Bean told Wright that she was not called in to be bawled out, but that one of the girls had told him that she had been talking to her on company time about the Union. Peggy Wright told him that she had not been doing that. During the rather lengthy conversation that ensued, Bean told her that both she and her husband were considered good workers and that he would not want her to do anything that she would be sorry for. Roberson then asked her how her husband felt about the Union, to which she replied that she did not know, that he would have to ask him.63 At some point in the conversa- tion, however, Wright told Roberson that she had signed a union card, and Roberson then asked her if she knew what she were signing when she signed it. Again, at some later time, Wright asked Roberson to tell her how he felt about the Union. Roberson proceeded at some length to give a discourse of his feelings, much of which encom- passed economic thoughts on the Union and a reference to the Company's 5-minute break rule, concluding with his opinion that the Union could not do anything for her that the Company was not already doing, and his state- ment that "the Union is not coming in if I can stop it." As Roberson was not specifically questioned as to this con- versation, Wright's version stands unrefuted. I find that, for the most part, matters expressed above by Roberson and Bean are privileged under Section 8(c) of the Act. However, I find that Bean's statement to Hill, that he would not want her to do anything that she would be sorry for, constitutes a threat under Section 8(a)(1) of the Act.fi4 Ronald W. Patton, another of the alleged dis- criminatees, testified that right after the first meeting at Rattan Bridge, which would place it right after April 11, Everett Roberson approached him at his machine, and asked him what he thought about the Union and what he thought about the meeting he attended the other day. When Patton replied that he did not know much about it, but that he was learning more about it every day, Rober- son replied that all the Union was after was dues, and that he better think about it before he did anything wrong. Pat- ton testified that a couple of nights later, Leon Young, who at the time was the general superintendent, pulled up in his automobile as Patton was standing outside the mill with a couple of other boys, and said, "I heard you went to a meeting yesterday." When Patton replied that the only meeting he attended yesterday was Sunday School, Young retorted, "You sure?" Roberson, although testify- ing that he did not initiate any union conversation with Patton, could not recall whether he talked with him about the Union or not. Leon Young did not testify.65 Under these circumstances, and notwithstanding my complete rejection of Patton as a credible witness as hereinafter noted, I find the conversations to have occurred as testified to by Patton. As to the first of the above conver- sations, I find that Roberson's reply to Patton, that he better think about it before he did anything wrong, con- stitutes an implied threat similar to the situation where an employee is warned not to do something connected with the Union which might hurt him or for which he would later feel sorry. Skyline Homes, Inc., supra. As to the second, I also find Young's conversation with Patton to constitute conduct violative of the Act. Patton further testified that some 2, 3, or 4 weeks be- fore his discharge on August 28, Ralph Mayes, knitting department supervisor, approached him at his machine and asked him how the Union was getting along, to which Patton replied that it was getting along fine. Patton further testified that on this occasion Mayes said to him, "I seen [sic] some of the union men down in town today," and that "I don't care who joins the Union or what the Union does, all I want is a good 8 hours' work out of somebody." The conversation concluded when 61 Parker Bean was relieved of his supervisory duties on November 4, 1964, and moved to the warehouse. 62 See Purity Food Stores, Inc., 150 NLRB 1523. 63 Although both Peggy Wright and her husband, Noah, had at that point signed the earliest union letter to the Company indicating their union allegiance, because said letter was not received by the Respondent until April 17, it would appear that Roberson would not have learned, in that manner at least, of their feelings on the subject. 64 Skyline Homes, Inc, 134 NLRB 155. 65 Leon Young was relieved of his duties on September 25, 1964, KAYSER-ROTH HOSIERY CO. Mayes agreed with Patton's feeling that he did not like to see anybody getting picked on or kicked around. As Mayes was called upon to testify only at the reopened hearing in this proceeding, he was not questioned as to this incident. Accordingly, I find. it to have occurred as testified by Patton. In this regard, however, although I find Mayes' interrogation as to the Union to be violative of the Act, for reasons hereinafter set forth in the discus- sion of Patton's discharge, I find Mayes' reference to the Union and 8 hours of work not to be a violation of Section 8(a)(1). Samuel Barley, a former knitting department employee who was discharged on April 23 and, although waiving an offer of reinstatement, was subsequently made whole by the Respondent pursuant to the terms of the August set- tlement agreement, credibly testified that the afternoon following the March 17 leaflet distribution at the plant, Everett Roberson approached him and asked him what he thought about the leaflets that had been handed out the day before. When he replied that he had not thought much about it, Roberson asked him what the rest of the boys thought, to which Barley again was noncommittal. Rober- son told him that he thought the town was too small for a union and that he did not want to see Barley make a, mistake in any way. Roberson was not questioned as to this and, accordingly, Barley's credible testimony stands undenied. I find Roberson's interrogation of Barley on this occasion, concluding with his statement that he did not want to see Barley make a mistake in any way, to con- stitute unlawful interrogation and threats within the meaning of Section 8(a)(1) of the Act.66 Alveida Harris, a sewing department employee who was discharged on April 21, was subject to the earlier set- tlement agreement, and was reinstated pursuant thereto, testified that on or about April 15, Parker Bean and Everett Roberson called her into the office and told her that there had been rumors going around the plant that she would be discharged and assured her that no such thing was going to happen. During the conversation, how- ever, according to Harris, Roberson asked her if she could get her son, James Hall, to pull out of the Union, to which she replied that she did not know. According to Harris, Roberson also asked her to talk to her son and at- tempt to influence him to discourage others in this regard. Although, as in the case of Shirley Fugate, Frances Hill, and Peggy Wright, Roberson admits to having called Har- ris into his office on this occasion, he was not questioned as to the additional requests concerning the Union and her son which were attributed to him by Harris. As her testimony in this regard stands unrefuted, it is credited. I find that Roberson's attempt to have Harris prevail upon her son to pull out of the Union and to have him discourage others in connection with the Union clearly violates Section 8(a)(1) of the Act.67 Harris testified that a day or two later when she was on the parking lot at lunch with several girls, Troy Ward asked her if she had signed a union card, and she told him that she had. Ward's version, which I credit, in part because it was not denied by Harris, is that as Troy Ward passed the girls on this occasion Harris said to Ward, "I know what to sign and what not to, don't you?" To this Ward admitted that he answered, "I know what to put my 88 See Frank C Varney Co., Inc, 151 NLRB 280 Skyline Homes, Inc, supra. 67 See Movie Star, Inc , 145 NLRB 319. 387 name on and what to keep it off." Ward admitted that his reference here was to the Union. While interrogation as to the signing of union cards may be a violation, H. H. Zimmerli, 133 NLRB 1217; Boro Motors, Inc., 153 NLRB 145, in this situation, Ward's statement was but a reply to a question of Harris, and as such, was-not unlaw- ful. Henry I. Siegel Co., Inc., supra. Bobbie Sue Dunn, an inspector in the inspecting de- partment and an alleged discriminatee, testified that on or about June 4, Supervisor Troy Ward approached her at her machine and asked her if she were still for the Union, to which she replied that she was. Ward then told her that she did not know what she was doing if she voted for the Union, that she was merely listening to her husband. Ward concluded by stating that if the Union came in they would all be hurt. Ward admitted having a conversation with Bobbie Sue Dunn about the Union and admitted that he could have stated that if the Union came in they would be hurt but denied asking her whether she was still for the Union. I credit Dunn's testimony. I find that Ward's statement that if the Union came in they would all be hurt to constitute coercion within the meaning of Section 8(a)(1) of the Act.68 Euel Robert Tate, an alleged discriminatee who worked as a knitter in the knitting department until his discharge on February 1, 1965, testified that a day or two after he signed the letter going to the Company, which was dated April 27, 1964, Troy Ward approached him at his machine and said, "I see you signed a union card." When Tate replied that it was right, Ward said, "Don't you care anything about your job?" When Tate replied in the affirmative, Ward asked why he signed the card, to which Tate replied that he thought it would be a good thing for Dayton. Although Tate was very vague and hesitant as to when this took place, originally testifying that it was 3 or 4 months before his discharge, but finally placing it in April, the fact remains that Troy Ward was not questioned on this and that Tate's testimony stands unrefuted. It is credited. Ward's statement to the effect that "don't you care anything about your job" constitutes a clear threat to job security, following as it did, a question as to whether Tate had signed a union card. Kelly Brothers Nurseries, Inc., 145 NLRB 285, enforce- ment denied 341 F.2d 433 (C.A. 2); Great Leopard Mar- ket Corp., 150 NLRB 1384. Employee Agnus Smith and James Suttles, an alleged discriminatee, each testified to a conversation on November 19, the day after the election, in which Earl Barger, superintendent of the finishing division, told them that he did not want to hear of them talking about the Union in the mill anymore, and that if he did he would bounce them both out the back door. On cross-examina- tion, Smith admitted that she had that date been talking union with another employee while they were working on the job. Accordingly, I credit Earl Barger's testimony to the effect that he had had reports that Suttles and Smith had been soliciting for the Union during working hours, and that, on this occasion, he warned them that a con- tinuation of this would result in their discharge. I there- fore find this not to be a violation of the Act.69 James Buck Reel, another alleged discriminatee, testified that on August 18, his supervisor in the dye 68 See Lyon, Inc., 145 NLRB 54; Skyline Homes, Inc., supra 69 See Star-Brae Industries, Inc., 127 NLRB 1008 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD house, Wendell Borne, asked him if he had signed a union card, and, when Reel answered that he had, Borne said that he did not think that he (Reel) would because of his close friendship with Leon Young. Reel allegedly replied that he had no choice, that it looked like a good thing. Reel, in answer to a leading question, further testified that Borne asked him if Albert Calbaugh had joined the Union, to which Reel replied that he himself had just that afternoon signed Albert Calbaugh up with the Union. Upon having his recollection refreshed by referring to his pretrial affidavit, Reel testified that Borne also asked him whether Charles Wayne Porter had joined the Union yet, to which Reel replied that he thought that he had. Wen- dell Borne, who was, himself, active in the Union, and who admittedly knew most every employee who aligned himself with the Union, credibly denied having a conver- sation with Reel concerning the signing of union cards, by Reel or by Porter. For reasons hereinafter discussed per- taining to the credibility of Borne, on the one hand, and of Reel, on the other, I do not credit Reel's testimony con- cerning the August 18 alleged incident, and, accordingly, find that it did not occur. Vaughn Hensley, who, until his allegedly discriminato- ry discharge on August 27, was employed by the Respond- ent as a boarder in the boarding room, testified that about the last of June, Charlie Kelley asked him if he had signed a union card and that he replied that he had. Kelley then said that if he were Hensley he would not have anything to do with the Union, "that they might shut the plant down." I find that Kelley's suggestion to Hensley, that if he were Hensley he would not have anything to do with the Union, constitutes a threat within the meaning of Section 8(a)(1), Purity Food Stores, Inc., 150 NLRB 1523; Moulton Manufacturing Co., 152 NLRB 196, and Kelley's subsequent statement that they might shut the plant down, also constitutes, in this context, a threat rather than a prediction, and, as such, constitutes a viola- tion of the Act. Great Leopard Market Corp., supra; Philip Carey Manufacturing Co., 140 NLRB 1103. According to Hensley, 2 or 3 nights later, Robert Wil- key, who, at the time was the second-shift foreman, asked him if he had signed a union card. When Hensley replied in the affirmative, Wilkey stated that if he were Hensley he would have nothing to do with the Union, that if he "wanted out of the Union" that he could see Superintend- ent Freeman Looney, and that if he did not that he would start getting bad work back, and then he would be discharged. Hensley ended the alleged conversation by telling Wilkey that he wanted the Union, and that he thought the employees needed one. As hereinafter noted, Charlie Kelley's testimony from a hospital bed limited to a single incident and therefore Hensley's testimony as to the June conversation with Kelley stands unrefuted. For this reason only, it is credited. As to the second alleged conversation, Robert Wilkey, who in October 1964 was relieved of his supervisory duties and reduced to an em- ployee status with the Respondent, was called as an early witness by the General Counsel and testified at length in support of the Union's position in this proceeding. As he was not questioned on this and thus failed to corroborate Hensley's testimony, which I found generally lacked cre- dence, I find that the incident did not occur. E. Alleged Violations of Section 8(a)(3)70 1. Earl Calbaugh Unlike the other 29 alleged discriminatees in this proceeding, the issue as to Earl Calbaugh does not in- volve his layoff, which occurred on April 29, but, rather, is confined to the question of whether, within a reasona- ble time subsequent to the August 10 settlement agree- ment, the Respondent unlawfully failed to offer Calbaugh a job for which he was qualified.71 Preliminarily, and by way of background, the evidence reveals that Earl Calbaugh was initially employed as a laborer for Daniels Construction Company when it was performing construction work for the Respondent. Along in February 1964, when Daniels' contract with the Respondent was running out, Earl Calbaugh, along with others, applied for work at the Respondent and was hired as a laborer in connection with the building of the Respondent's new finishing plant with the understanding that such construction work would be temporary. Thus, in such capacity, Earl Calbaugh helped build yarn and finished product bins, and assisted in floor finishing. When, during March, Calbaugh fell and broke his arm while so employed, he was put to work doing painting. When the painting work finally came to an end on April 29, Earl Calbaugh was laid off. On August 10, as part of the negotiations in connection with the informal settlement agreement in the earlier proceeding, the parties agreed that Earl Calbaugh would be paid the equivalent of 2 weeks' pay and that the "em- ployer will grant Earl W. Calbaugh priority for employ- ment in any job which comes open and for which he is qualified." This latter provision contained in the settle- ment agreement encompassed an understanding between the parties that the Respondent would also attempt to find Calbaugh employment with some other company for which he was qualified.72 Confined solely to the issue at hand, the record evidence reveals that Calbaugh, by his own admission, was experienced only as a common laborer on construc- tion work, that the Respondent did not in the course of its regular mill operations employ laborers, and that Cal- baugh was not qualified to fill any of the job classifica- tions in the mill. As to the understanding engendered by the settlement agreement pertaining to the Respondent's assisting Calbaugh in securing work elsewhere, the evidence reveals that on August 10, Roberson ap- proached Calbaugh and told him that Elkay Sink Manu- facturing Company in Dayton was starting to build its operation and that he (Roberson) could help him get a 7" Sec 8(a)(3) of the Act reads in part as follows Sec. 8 (a) It shall be an unfair labor practice for an employer- (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization 71 Although Earl Calbaugh was included in the overall 8(a)(3) paragraph in the complaint alleging discharge and refusal to reinstate, counsel for the General Counsel made it clear at the hearing that Calbaugh's discharge was not asserted as a violation Nor was the fact that Calbaugh was not reinstated asserted as a violation Accordingly, neither was litigated 72 No inference as to a discriminatory layoff in April may properly be drawn from Calbaugh's inclusion in the settlement agreement, which agreement was informal (as distinguished from formal) and contained a nonadmission clause KAYSER-ROTH HOSIERY CO. construction job there if he would go up and apply. Cal- baugh, whose arm had not healed from the break it suf- fered the previous March, replied that he could not push a wheelbarrow and that there was no need for him to go up there. In view of the fact that on August 10, Calbaugh admit- tedly was not physically capable of performing the one job he was qualified to do, specifically construction work, and so advised Roberson, it would seem that at some point thereafter it would have been incumbent upon him to apprise the Respondent that he had recovered suffi- ciently to resume work. The fact remains that at no time after Roberson attempted to assist Calbaugh on August 10 did Calbaugh inquire of the Respondent as to employ- ment, either at its plant or elsewhere.73 In any event, the record fails to show that any job opened up at the plant after August 10 for which Cal- baugh was qualified or that Calbaugh was at anytime thereafter physically capable of performing any job for which he was otherwise qualified. This, coupled with the fact that the record evidence as to Calbaugh's activity on behalf of the Union is limited to his having been one of those employees who signed a union letter sent to the Respondent the previous April, does not justify a dis- criminatory finding as to him. Under these circum- stances, I find that the General Counsel has not proved by a preponderance of the credible evidence that the Respondent unlawfully failed to offer Earl Calbaugh a job for which he was qualified, or that the Respondent other- wise violated Section 8(a)(3) of the Act with respect to Calbaugh. 2. James W. McMillian James McMillian, along with several other employees, was hired on or about the first of March 1964, as a con- struction worker, and was put to work building racks in the new mill. At the time of his hire, he was told that the work was temporary and that he was being employed as a temporary employee. In this capacity, McMillian worked under Leon Young, who, at the time was in charge of new construction, until the job ran out on or about April 12. On April 15, McMillian, who had asked for work in the plant but had had no experience in a hosiery mill before, was accepted as a knitter trainee in the knitting department. He worked as such for 1 or 2 days on the day shift under Supervisor Ralph Mayes and then was transferred to the third shift under Supervisor Cecil Housley. Athough having been bothered for several weeks with severe stomach trouble, subsequently diag- nosed as a pinched nerve in his back, McMillian, with a number of absences , remained in the Respondent's em- ploy through April 28, at which time, under his doctor's orders, he was forced to quit work.74 On the following day, April 29, having become too ill to go to work, McMillian telephoned the plant so advising 73 In fact, the record contains no evidence as to when , if ever, Cal- baugh's arm thereafter improved to a point where he could assume a laborer's job. 94 During the period, according to Superintendent Roberson, McMil- lian worked only 4 or 5 days. McMillian, very uncertain, testified that he did not remember being absent while employed as knitter trainee, but did not deny that he was absent on at least two occasions. 45 McMillian testified further that the slip originally contained the ex- planation, "Excessive absenteeism during probation on training," and that, when he objected to this unless it included the word "illness" at the 389 the office, and also called his supervisor, Cecil Housley. Thereafter, in the early part of May, having received word that the mill had attempted to reach him, McMillian telephoned Ralph Mayes, the head supervisor, and, in reply to Mayes' query of whether he were able to return to work, McMillian answered that he was unable to go back and would have to be out a while longer. At that point, Mayes asked McMillian to take a layoff slip so that he could hire someone else to run his machine, to which McMillian agreed with his understanding being that he would go back to work when he was physically able. On May 6 , McMillian went to the plant and received from receptionist Peggy Austin his pay and separation notice, the latter indicating that he had been discharged as of April 28, for reasons of disability.75 McMillian remained incapable of performing any work because of his disability through May and up until the middle of June, at which time his doctor gave him a qualified release, with the caveat to watch himself and not to do any heavy work. According to McMillian, he im- mediately called Mayes telling him- that he was able to work and asking him if he could return to work. Mayes told McMillian that they did not have anything he could do at that time, and for him to check back. About 2 weeks later, McMillian again talked with Mayes on the telephone and again , in reply to McMillian 's question of whether he had any job available that he (McMillian) could do, Mayes replied that he did not.76 McMillian testified that, about a week later, which would place it toward the end of the first week in July, having heard that Kayser-Roth was employing knitters, but only women knitters, he called Roberson. In reply to McMillian's dual question of whether the Company needed knitters at that time and whether he could go to work, Roberson answered that he needed knitters but that he waned women. Roberson testified that he never heard from McMillian after he left in April, nor received any report that he thereafter sought to return to work. Roberson admitted that the company wide policy is to use women as knitters rather than to use men, that, until March, they had em- ployed all men knitters in Dayton because of the 7-day operation, and that when they moved into the new plant in March and the extra space alleviated the necessity of a 7-day operation, they started hiring women knitters in accordance with the companywide policy. At the time of the hearing, however, they still had some men knitters. I find that McMillian did in fact make contact with Rober- son in early July as testified to by McMillian. I further find that at time of his telephone call, the Company did have one or more openings for knitters. The evidence reveals that McMillian, in April, at- tended one union meeting , and signed a union authoriza- tion card as well as a union letter. Unlike most of the other alleged discriminatees in this proceeding , matters end of it, Austin left the office and subsequently returned with the slip in- dicating that his discharge was based upon his disability. 76 Mayes was not called by the Respondent as a witness during the ini- tial hearing herem, and his testimony at the reopened hearing in October, was confined to one 8(a)(4) allegation. Accordingly, McMilhan's testimony with respect to the two conversations with Mayes stands un- refuted. McMillian, in addition to appearing less than candid while testify- mg, was a very confused witness with respect to crucial dates and circum- stances. However, in view of the fact that McMillian's testimony stands unrefined, and notwithstanding my reservations concerning McMillian's candor, I credit his testimony as to the above conversations. 308-926 0-70-26 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pertaining to McMillian's case arose at the height of the Union's campaign and at a time when u1-iion feelings, pro and con, were strong. Chronologically, on April 1, Super- visor Cecil Housley asked him if he were for the Union, and McMillian told him that he was. A week or 10 days later, around April 10, Housley again talked with McMil- lian about the Union, admonishing that if anyone ap- proaches him about the Union he should tell him that he does not want anything to do with it. On April 15, Mc- Millian was given a job as a knitter trainee.77 Thereafter, McMillian, failing to heed Housley's "advice," signed a union authorization card and, on April 27, a union letter making known his union activities, which letter was received by the Company on May 1. Under these circumstances, the inference is warranted that the Respondent's refusal to give McMillian a knitter job during the first week in July when such a position was open was based upon McMillian's having joined the Union in April after having been admonished not to have anything to do with it. I so find. Therefore, although find- ing nothing unlawful as to his employment termination on April 28, I find that the Respondent, in refusing to hire McMillian during the first week in July, did so in violation of Section 8(a)(3) and (1) of the Act.78 3. Bobby Ray Cox Bobby Ray Cox was employed by the Respondent from November 4, 1963, until his discharge on July 15, 1964. During his employment he worked as a boarder in the boarding room, having worked one time or another on all three shifts. For the 4 months immediately preceding his discharge, Cox worked on the third-shift, 11 p.m. to 7 a.m., under Roy Stinnett, supervisor of the boarding room. The evidence shows that Cox was among those who signed the first union letter to the Company, dated April 11, 1964, and, based upon his uncontradicted testimony, that he signed a union authorization card, that he helped get other people to sign, and that he attended union meetings. On the night of July 13,1964, Cox, who was scheduled to report for work at 11 p.m., left the Rhea County Drive- in about 10:30 p.m. and stopped at the Dayton Truck Stop for a cup of coffee before driving on to work. The Dayton Truck Stop is located 2.5 miles north of the plant on Highway 27, the main route traveling north and south through Dayton. At approximately 10:45 p.m., Cox left the truck stop, but, having traveled about 100 feet on the highway, his car broke down. Cox pushed it back to the truck stop, and proceeded to telephone the plant. His phone call was taken by Robert Wilkey, who, at that time, was the second-shift supervisor of the boarding room. In the absence, of Third-Shift Supervisor Stinnett, who had not yet arrived, Cox apprised Wilkey of the fact that he could not get to work because his car had broken down. 77 This took place the month following the time when, according to Roberson, the Company stopped hiring men knitters. 79 The Respondent's position that McMillian was terminated on April 28 because of excessive absenteeism while still a probationary employee and because he was unable to work, even if borne out by the record, in no way alters the above finding of a discrumnatory refusal to hire. 79 The factual account reported to this point is taken from the uncon- tradicted testimony of Cox. 80 Cox testified that, when he contradicted Looney in this regard, Young asked him if he were calling him a liar, to which Cox replied that "I Wilkey said that he would try to get someone to go after him, and would call him back in 5 or 10 minutes. Within a few minutes, Wilkey telephoned Cox and told him that Gene Hulgan, a second-shift employee, and Leon Young, who, at that time was the general superintendent of the plant, would be up to get him. 79 According to the testimony of Cox, no one ever came to get him that night, and he remained at the truck stop until the following morning at 6:30 a.m., at which time Carl Sims, half owner of the truck stop who had been on duty all night, drove him into town. According to Cox's further testimony, he reported to work the following night, July 14, and was told by Leon Young that they did not want him to work that night and for him to report to the office the next night. The follow- ing day, July 15, Cox reported as requested, and was told by Freeman Looney, in Young's presence, that he was fired. During an argument that ensued, Looney, who, at that time was superintendent of the finishing division, maintained that Hulgan and Young had gone up to the truck stop to pick him up and accused Cox of not being there. When Cox denied the accusation, and in turn ac- cused Young of lying,80 Looney handed Cox his discharge notice, which indicates that Cox was discharged for not working on July 14.81 Roy Stinnett testified that when he arrived at work the night of July 13, Robert Wilkey reported that Cox had just called in from the truck stop asserting that he had no transportation, and that they had decided to go get him. Immediately thereafter Young and Hulgan left the plant for this purpose '112 and, in 20 to 25 minutes, returned, telling Stinnett that they could not find Cox. Stinnett further testified that shortly thereafter, Young again went to look for Cox at the truck stop, and, after about 40 minutes, returned with the report that Cox was not there. The following night, when Cox reported for work, Stin- nett, obeying Young's directive to not let Cox work and to "send him home," told Cox that they had made two trips to the truck stop the night before and that he was not there, whereupon, Cox adamantly refuted the assertion, replying that his car had broken down at the boat dock, and that he had then gone up to the truck stop with some boys. I find no sound evidentiary basis upon which to disbe- lieve Cox's version of the July 13 incident, including the assertion that he remained at the truck stop and that no one from the plant showed up. Thus, without in any way impinging upon the veracity of Stinnett whom I find to have been a truthful witness, there is no direct evidence which refutes Cox's testimony.83 Except for truck stop owner, Carl Sims, testimony of others who would have been in a position to shed additional light on the matter was not forthcoming. Neither Plant Superintendent Leon Young nor employee Gene Hulgan, who allegedly drove to the truck stop and failed to find Cox, was called upon to testify in this proceeding, and Robert Wilkey, am not calling you a liar like that, but if it comes right down to that, that's it... " 81 The third shift actually commenced at 11 p.m on the night of July 13. 82 It is not clear from Stinnett's testimony whether Robert Wilkey ac- tually went with Young and Hulgan, but presumably he did not. 83 Roy Stinnett, who did not himself make a trip to the truck stop, testified only that it was reported to him by Young that the latter went to the truck stop and that Cox was not there KAYSER-ROTH HOSIERY CO. 391 although called by, and testifying on behalf of, the General Counsel was not questioned on this matter.84 Carl Sims, who for the most part corroborated Cox's testimony,"' and who might otherwise have been a helpful and unbiased witness but for the fact that Cox was "about as good a friend as you can have" to Sims, was not too convincing a witness on some points, particularly his recollection that this incident occurred in November or December rather than on July 13. In any event, in the absence of direct testimony to the contrary, I find that Cox did telephone the plant from the truck stop just prior to his scheduled reporting time on July 13, that he remained there for the duration of the night, and that at no time did anyone from the plant come by to take him to work. The Respondent asserts that Cox was terminated for laying out of work without an'excuse on the night of July 13, coupled with giving a fictitious reason for doing so. In support of its position, the evidence discloses that there existed no compelling reason for Cox to have stayed at the truck stop all night, for Cox, an able-bodied young man, could easily have walked the 2-1/2 miles from the truck stop to the plant in 30 or 40 minutes. Nor did Cox attempt to use the telephone again to call the plant, which, it would seem, might have been logical for one to do under the circumstances had he really been intent upon getting to work. Further, as testified to by Sims, Dayton is a small town, and people, many of whom were known to him, dropped in at the truck stop off and on during the night, any one of whom could have given Cox a ride to town had he asked. Such a request by frequent patrons of his truck stop, according to Sims, is not uncommon. For these reasons I find that Cox did lay out from work on the night in question, and did so without having a valid reason for not reporting to the plant. Now, the question arises as to whether this was the true motivation behind the Respondent's decision to ter- minate Cox.86 According to Roy Stinnett, the decision to discharge Cox was made by Leon Young, who told him at the time that Cox was to be let go because of his lying about being up at the truck stop. Former Plant Superin- tendent Leon Young, however, did not testify. Nor did former Division Superintendent Freeman Looney, who, according to Cox, was the one who, is Young's presence, told Cox that he was discharged. Therefore, we do not have the benefit of the testimony of the two company offi- cials whose motivation is in question, one of whom, Young, was also the person who allegedly made the trip to the truck stop and allegedly failed to find Cox. The Respondent adduced evidence showing that 6 weeks earlier, on May 1, Cox received a written repri- mand for not reporting to work on April 24, on which oc- casion Cox, who had a tootache, failed to notify the Respondent, assertedly because his car had broken down and he did not have access to a telephone. A perusal of the reprimand document, however, indicates that the basis for the admonition was the fact that Cox had failed to call his supervisor apprising him of his intent not to go to work rather than the fact that he laid out.87 Accordingly, as the gravamen of the earlier offense was the failure of Cox to call the plant, as distinguished from the offense here where Cox in fact called in, but had no real reason for not working on the night in question, it cannot validly be relied upon by the Respondent as sup- port of the discharge action on this occasion. While it is true that Cox may not have been one of the leaders in the Union and that the evidence failed to reveal that any company official had at any time spoken to or questioned Cox concerning the Union,88 the fact remains that Cox was one of the more active union adherents, that his discharge occurred not too long after what appears to have been the height of the spring union organizing cam- paign and during a time when union animosity ran high and many of the former company officials were still in authority and openly hostile to union activity. Although far from condoning the conduct and attitude of employee Cox, under all of the circumstances, I am of the opinion, and so find, that the discharge of Bobby Ray Cox on July 15, 1964, was based in part at least on his union activities, and that the Respondent thereby violated Section 8(a)(3) of the Act. 89 4. Burton Eugene Yates Burton Yates was initially hired by the Respondent on February 25, 1964, as a knitter trainee and placed on the first shift in the knitting department. Five weeks later, he was transferred to the third shift under Supervisor Cecil Housley where he operated a striping machine, which is a boy's sock machine. On May, 22, Yates was involved in an automobile accident and, as a result, was granted sick leave from June 2, until July 20. When Yates had recovered sufficiently and reported back to work, the Respondent had nothing available for him except a set of machines normally operated by em- ployee Gary Keylon, who had left on a 2-week military leave with the National Guard. Ralph Mayes, head super- visor of the knitting department, apprised Yates of this fact and told him that he would either give him a slip per- mitting him to draw unemployment or that he could, tem- porarily, run Keylon's machine until the latter returned, with the possibility that by that time some other machine might open up. Yates chose the latter, and operated Keylon's machines, which were similar to his, during this period. When Keylon subsequently returned, the only thing open was a set of tubing machines. Yates had never operated this type machine before, but because it was the only thing available, Yates was asked if he wanted it until something else came open and he took it. Apparently, however, before starting the job, Yates, on Tuesday, August 4, while mowing the lawn was severely 84 For the record, Young and Division Superintendent Freeman Looney were relieved of their duties and severed from Respondent's employ on September 25 and July 31, 1964, respectively, while Robert Wilkey was demoted from his supervisory position on October 5, 1964. 85 Contrary to thg, testimony of Cox, however, to the effect that his wife, Rachelle Sinf's'..alled him (Cox) to the phone on the return call from the plant, Sims testified that his wife was not there that night and that it was he who called Cox to the telephone. 86 The Respondent's separation notice reflects that Cox was discharged for not working on July 14. 87 Although not adverted to by counsel for the Respondent, a posted rule of the Company reads as follows: 2. ABSENCE FROM WORK-Anyone who is unable to report for work because of sickness or extreme emergency should noti- fy his supervisor at once. Dropping from payroll may result from unexcused absence. 88 Nor am I unmindful of the fact that the Company reprimand of May 1 relating to Cox's earlier offense on April 24, alluded to above, came after the Company had been made aware of Cox 's union affiliation through receipt on April 17 of the union letter dated April 11 containing Cox's signature 89 See N.L.R.B. v. Electric Steam Radiator Corporation, 321 F.2d 733, 738 (C.A. 6). 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stung on the foot by yellow jackets, which kept him from working for several days. While off work, Yates ran into Housley on Thursday night, August 6, about 10 p.m. at the Dayton Drug Store watching the returns from the sheriffs election. Housley, after inquiring as to Yates' foot, departed, saying that he would see him after a while Although scheduled to go to work at I I p m . Yates did not report, nor did he work the rest of the week The fol- lowing Monday afternoon, August 10. Roberson, having been apprised of the fact that Housley had seen Yates the night of the election walking around, saw Yates at the set- tlement negotiations at the courthouse and inquired as to why he had not been working. Yates, who had recovered by this time, replied that the bee sting had kept him from going to work, and, when confronted with Roberson's knowledge of his having been seen walking around at the election, Yates admitted being there but stated that at that time his foot still bothered him. At that, Roberson told Yates that he believed that he was laying out, and ad- monished him to go back to work that night on that set of machines. Roberson testified further that he told Yates that he was giving him a reprimand, "but for him to go back up there and work and everything will he all right."90 That night, August 10, Yates commenced on the set of tubing machines, which makes seats for leotards, but, never having worked this machine before, found it very difficult. According to the unrefuted testimony of Yates,9' he asked Housley to give him some operating in- structions on the tubing machine, and Housley told him that he did not have time, to go ahead and start. and that he would be back later. When Housley returned later on, Yates again asked him for assistance and was again told by Housley that he did not have the time. Yates told Housley that he could not run many machines, of which there were 17 to the set, if someone did not instruct him Housley, in leaving, merely replied that he was just doing what he had to do. With the advice and assistance of several employees, Yates was able to run five of the machines that night. At 7 a m. he clocked out, went home, and reported back to work the following night. Au- gust 11 On this occasion, Yates again sought Housley's assistance in the operation of the tubing machine Housley answered some of Yates' questions and stayed and talked with Yates briefly, but informed him that he did not have anyone available at the time to teach him and that he, himself, did not have the time Yates proceeded to work the machine for a short while, but. being afraid that he would "mess the machines up," Yates went to Housley, and told him that he was going to quit if they did not give him somebody to show him how to operate the job Housley again reiterated the fact that he did not have time, and that he was doing just what he had to do. Yates replied that "under the circumstances I felt like I would be better off home in bed." Yates then left and did just that. According to Yates, on two occasions shortly thereafter, Yates went back to the mill to see Everett Roberson without success, the receptionist not returning to her desk the first time, and telling Yates that she could not locate him, the second time. Yates then asked for his separation slip which was mailed to him a few days later. When asked whether he remembered the reason for separation given on the slip , Yates testified that he thought that it stated "Did not like the job." The General Counsel does not deny that Yates volun- tarily left the Respondent's employ, but asserts that the facts support a finding of constructive discharge , and that, under the circumstances , including the fact that Yates had never been given operating instruction on the tubing machine, his voluntary separation was, perhaps, a pru- dent act on his part . Counsel for the Charging Party goes one step further, imputing to the Respondent an ulterior motive in assigning Yates the tubing machine , that is, an awareness of the fact that, because of his inability to operate it properly , Yates would be forced to leave the Respondent 's employ. Needless to say, were either posi- tion tenable on the facts , a finding of discrimination would follow I find, however, such not to be the case. The record is replete with testimony relating to the similarity or lack thereof between the requirements for operating the strip- ing machine and the tubing machine. I deem such a resolution unnecessary to the issue involved . As has been noted elsewhere herein , with the exception perhaps of the military leave situation , under the long-established prac- tice of the Respondent employees who return from leaves are entitled to a job only if one is open for them at the time. Thus , as there was no permanent machine open when Yates returned from his sick leave in July, there was no obligation on the Respondent ' s part to give Yates anything. Again , a couple of weeks later, when Keylon returned from military leave , the Respondent still had nothing open except one tubing machine, which it of- fered to Yates Thus, even assuming, arguendo, that there existed a real difference between the two machines, in view of the fact that , at the time, the tubing machine was the only machine in the mill open and that Yates was offered the opportunity to try it and was under no com- pulsion to take it, it hardly can be said that Yates' deci- sion to quit constitutes a constructive discharge. This conclusion could be altered, perhaps, only by a finding that once Yates accepted the tubing machine, Housley, although not obligated to instruct Yates on it, failed or refused to do so solely for discriminatory reasons. In this regard, the record discloses that during the preceding April, Yates signed a union card and one of the union let- ters to the Respondent revealing his union sympathies, and attended some union meetings. As discussed above concerning 8(a)(1) conduct , the record also reveals that on three occasions in March and Apnl , during the early weeks of the union organizing campaign , Yates was inter- rogated by Housley concerning activities at union meetings, and further, that, toward the latter part of May, Everett Roberson , after interrogation and union discus- sion , let Yates know by way of a veiled threat that, because Yates was still within the 90-day probationary period as a trainee, he could let him go anytime without having a reason As related to the question of Housley's motivation in not assisting Yates when the latter assumed the operation of the tubing machine on August 10 and 11 ,92 and notwithstanding the seriousness of this type of conduct , it would seem that, had the Respondent desired 9" On cross-examination , Yates admitted that , on this occasion, he had been fearful of being discharged and that , through the Union Representa- tive Benton, they momentarily blocked the already agreed-upon settle- ment until Roberson assured Benton and reassured Yates that such were not the case "' Cecil Housley, who voluntarily terminated his employment with the Respondent on August 16, 1964, was not called as a witness in this proceeding 11 Yates worked one 8-hour shift and 2 hours of the second when he walked off the fob KAYSER-ROTH HOSIERY CO. 393 to rid itself of Yates for any reason involving his union ad- vocacy, the Respondent would have done so during the 90-day probationary period rather than waiting until it had expired.93It had such an opportunity on or about July 20 when, with no obligation on its part, it offered Yates Keylon's machine temporarily with the possibility, as ex- pressed by Yates, that "maybe they would have a job opened inside of 2 weeks." Even after the 90-day period, when the Respondent had no machine open of the type upon which Yates had trained, the Respondent again was in no way obligated to offer him a job, but did so to the ex- tent of letting him try the tubing machine. For these reasons, and on these facts, coupled with the additional fact that there is no other evidence indicating that Housley, in refusing to spend his time or to assign someone else in instructing Yates during his brief as- sumption of the tubing machine operation,94 did so because of union considerations or for the purpose of forcing Yates to quit, I refuse to draw an inference of dis- criminatory motivation.95 Accordingly, as Yates was not assigned the tubing machine as asserted by counsel for the Charging Party, and without regard to whether or not Yates' decision to leave was, under the circumstances, a prudent one, as ob- served by counsel for the General Counsel, I find that Yates' voluntary act in terminating his employment with the Respondent does not, under the circumstances, war- rant a holding of a constructive discharge and that the General Counsel has failed to prove by a preponderance of the credible evidence that the Respondent in any way violated Section 8(a)(3) of the Act with respect to Burton Eugene Yates. 5. Charles Wayne Porter Charles Porter first went to work for the Respondent on May 4, 1964, as a dye man on the second shift in the dye house under Supervisor Wendell Borne.96 On August 21, 1964, Borne noticed that Porter was staggering when he reported for work on the second-shift at 3 p.m. Before Borne had an opportunity to speak to Porter, having been occupied with other pressing matters, Earl Barger, su- perintendent of the finishing department,97 who also noticed that Porter was staggering, went over to Borne and apprised the latter of his observation. When Borne expressed his opinion that both Porter and employee Buck Reel, whom he had observed leaving the plant near his automobile a number of times, were drinking, Barger asked Borne to check on the situation, and, if he were convinced that such were the case, to terminate them. Borne testified that at this point, based upon his inquiry, it was reluctantly reported to him by another employee, one Albert Calbaugh,98 that Porter and Reel were, in fact, drinking liquor from a bottle in the latter's automobile. Borne then summoned the two employees to his office where, having smelled a strong odor of drink, he told them that he was going to have to discharge them for drinking on the job. When confronted with it, Porter ad- mitted it and admitted coming to work drunk. Reel asked to talk with Barger, which Borne by telephone arranged. Borne, accompanied by Porter and Reel, proceeded to Barger's office. Once in Barger's office, it was apparent to the latter that Porter could not even walk straight and that Reel, although not staggering, smelled of whiskey.99 Both were then discharged by Barger for drinking and being drunk on the job in violation of the company rule.' Recognizing the fact that a discharge under these cir- cumstances could still be a violation of the Act if, in fact, it were predicated upon a disciminatory motivation, thus constituting a pretext, I am of the opinion, and so find, that such is not the case here with respect to Porter,2 and that Porter's discharge was unrelated to his union activi- ty. First, the extent to which Porter had actually engaged in union activity is subject to some question. Thus, when asked as to his union activity Porter testified that he signed a union card, attended union meetings, talked to union officials from the plant, and signed a union letter that was sent to the Company. Yet, the evidence reveals that Porter was not even employed by the Respondent at the time that the union letters were drafted and forwarded to the Company, and that Porter's name does not appear on any of them. Furthermore, Porter admitted that he had nothing to do with the Union until August, some 2 or 3 weeks before his discharge, that he never saw Borne, who at that time was an active union adherent, at any union meeting, and that he did not know whether or not Buck Reel was in the Union. There is but one piece of direct evidence, and that I find to lack credulity, which would attribute employer knowledge of Porter' s alleged union activity. Reel testified, after having his recollection refreshed by refer- 93 Yates was hired on February 25, 1964. Subtracting the time from May 22, when he was injured, until July 20, when he returned from sick leave, his 90-day probationary period would have expired within 2 or 3 days after he returned and temporarily took over Keylon's machine the latter part of July. 94 The evidence reveals that the Respondent in no way complained or found fault with the quantity or quality of work or with the manner in which Yates was able to operate the tubing machine or that he ran only 5 of the 17 machines in the set. ss Although one might assume that Yates' activity at the settlement conference on the day before did not endear him to Roberson and, in fact, would give rise to a suspicion concerning an alleged discnminatees' ter- mination were this a discharge situation and under different circum- stances, this fact does not warrant a different finding. See Southwire Com- pany, 152 NLRB 1594 at 1595. 96 Prior to the advent of the Union, Wendell Borne had been in charge of the dye house, but without authority to hire or fire. He thereafter became active in the Union, attending union meetings and talking union. Subsequently, Borne was discharged, and, pursuant to the August settle- ment agreement, was paid $250 and immediately reinstated to his old posi- tion. 94 Barger, 2 weeks earlier on August 4, 1964, had been hired as superin- tendent of the finishing department , replacing Freeman Looney who had been relieved of his duties on July 31 . Barger remained with the Respond- ent in this capacity until April 21, 1965, when he left the Respondent and was, in turn, replaced by Bill Ewing. 93 Albert Calbaugh was one of the discrimmatees who was dicharged on August 27, allegedly for theft of company property. Calbaugh, however, was not called as a witness and, pursuant to the General Counsel's request at the hearing, the 8(a)(3) complaint allegations as to him were dismissed. ss The above factual recitation is taken from the creditable testimony of Borne and Barger. Except for the crucial denial by Porter and Reel that they were drinking on this occasion , which denial by each I do not credit, there is no material inconsistency in the testimony of thus matter. ' The printed rule reads as follows 6 DRINKING-The possession or consumption of intoxicating liquors, wines, or beer on company property or reporting for work under the influence of or with the odor of same on breath is not permitted. x For reasons which will become apparent, Reel's case is discussed hereinafter in connection with other discharges on August 27, involving theft of company property. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ring to a pretrial affidavit, that during a conversation with Borne on August 18, the latter asked him if Porter had joined the Union yet, to which Reel assertedly replied, "Yes, sir, I think he has, I believe he did." Borne, who was called as a witness for both the General Counsel and the Respondent, and whom I found to be a creditable wit- ness, denied that he asked Reel such a question, or that Reel told him that Porter had signed a card. Furthermore, Borne, who was himself at that time active in the Union, having been reinstated by the Respondent only a few days earlier, credibly testified that he knew most of the employees who had joined the Union and that Porter was not one of them.3 The evidence further shows that no su- pervisor had ever spoken to Porter about the Union, and that Porter, in turn, had at no time ever spoken to a super- visor concerning the Union. Nor may company knowledge of Porter's union activity be inferred through surveillance of union meetings for there is neither evidence nor allegation of company surveillance continu- ing after the initial April union organizing campaign. There remains one factor which, absent an explanation, would cause a suspicion on the propriety of Porter's discharge. The fact that Reel and others in the dye house had, on occasion, been drunk before, in violation of the rule without incident would, in itself, warrant a finding of condonation.4 However, as alluded to elsewhere herein, the Company had been tightening up on the enforcement of its rules, including its rule against drinking, and Barger, as the new head of the finishing department, was directly responsible therefor. Under all the circumstances,5 I find that the General Counsel has not proved by a preponder- ance of the ctedible evidence that Charles Porter was discriminatorily discharged in violation of Section 8(a)(3) of the Act. Respondent's Hiring and Leave Policy Essential to a discussion and resolution of the issues in- volving the next few alleged discriminatees is an un- derstanding as to the Respondent's policy concerning the hiring of employees, and the granting of leave, particu- larly maternity leave. The credible record evidence sup- ports the Respondent's assertion that its hiring policy generally is, and through the years has been, to hire at the door. In this regard, it appears that when a job opens up, 3 While nowhere directly in issue , I nevertheless credit Borne's further testimony that he did not inform the Company as to which employees were for and which were against the Union. For reasons hereinafter set forth, I find Buck Reel an entirely unreliable witness whose testimony is replete with falsification. 4 See S. Swartz, 145 NLRB 45. 5 Cf. The Wm. H. Block Company, 153 NLRB 616, enforcement de- nied 367 F.2d 38 (C.A. 7), where, unlike the present situation, there was neither evidence nor allegation that the alleged discriminatee was to any extent inebriated, and Climate Control Division, The Singer Company, 160 NLRB 765, where, again unlike the facts found herein, substantial evidence existed clearly indicating that the discharge of the discriminatee, a union leader whose union activities were well known and in fact the sub- ject of surveillance , was predicated upon such activity , and that an in- cident of drinking on the job was but a pretext. 6 This, however, does not occur, according to Roberson, when there are qualified people then applying for work at the plant. 7 Until the latter part of July 1964, over the years the Company had fol- lowed a practice whereby, after a baby was 2 or 3 weeks old, the Com- pany would permit the mother , if able to present a doctor's certificate, to be given a layoff slip early and before her leave was up, solely in order, that she could receive unemployment compensation. In July 1964, however, this practice was discontinued when the Tennessee Unemployment Com- mission informed the Company of its ruling that a woman employee at- because someone has quit, gone on leave or for whatever reason, the word gets out through the employees, and people, often friends and kin, apply at the office for the job, generally without the Company having to look for a replacement. Thus, the Company retains no list of former or laid off employees from which to rehire or recall, and vacancies are filled at the Company's employment office among those who are applying at the time. An exception to this general practice takes place on occasion when a supervisor, faced with an open machine or a vacancy, may remember a former employee and check to see if he or she is available." With respect to the Company's maternity leave policy, Roberson credibly testified that satisfactory employees who become expectant mothers are given 6 weeks of dis- ability pay and are granted a 6-month leave of absence or maternity leave, commencing about 3 months prior to the expected birth of the child, leaving 3 months after the birth before she will be considered for reemployment. At the end of this period, these employees are rehired if, and only if, a machine or a job is open. In the event that something is available, she is put back to work. If nothing is open at the time, she is given a layoff slip entitling her to draw unemployment compensation.7 Normal procedure under this established leave practice has been for an employee to apprise the Respondent that she is pregnant, and in turn, to receive verbal permission to take the 6-month maternity leave, this confirmed within a week or two after commencing the leave by letter setting forth the terminal date of the leave. Subsequently, after giving birth, receiving a doctor's release, and await- ing the end of the leave, she will return to the plant where she will make known her availability for work and will inquire, either from her former supervisor or from the receptionist at the employment office, as to whether there is a job open. In the case of the receptionist," she (the receptionist) may inquire of her superiors or she may al- ready be aware of the job situation as to vacancies on that particular day. In any event, if something is available for which the woman is qualified, whether it happens to be her old job or not, she is put to work. If nothing is open at the moment, she is automatically laid off for lack of work and is given her layoff papers by the receptionist so that she may collect unemployment compensation.9 To the tempting to return from maternity leave before her leave was up, would be considered a voluntary quit, therefore rendering her ineligible for unem- ployment compensation. 3 To the extent that this was not resolved on the record , I am of the opinion and so find that Peggy Austin's functions as the Respondent's of- fice receptionist are such as to classify her as an agent of the Respondent for the purpose of accepting and transmitting messages and employee requests for reemployment Any testimony that was permitted subject to such a finding is hereby received. 9 Employee Dons Smith, a witness called by the General Counsel to testify with respect to her experience in taking maternity leave, cor- roborated testimony of the Respondent as to certain aspects of its mater- nity leave policy. Thus, she testified that she had never known an em- ployee returning from leave to bump another employee, and that it does not happen. She further testified that the Company does not hold jobs open for people on leave, that when a person comes back from leave, "if there is a machine open, they get it," and if there , is not, "they get nothing." General Counsel witness, employee Jewell Toole, testified that it was a common thing for employees to come back from maternity leave and to be informed that there was no work available fpr them Thus, the testimony of a number of General Counsel witnesses , including Betty Pritchett, Jewell Toole, and Doris Smith is generally corroborative of Roberson's testimony as to the established leave policy of the Respond- ent. KAYSER-ROTH HOSIERY CO. extent that jobs are not held open or that openings are not guaranteed to employees returning from maternity leave, this same practice is adhered to with respect to all kinds of leave. Without attempting to pass upon the wisdom or propriety of the Company's hiring or leave policy as out- lined above, in view of the fact that the evidence discloses that such policy had long been in effect and was well established before the advent of the Union, it cannot be said, nor is it asserted, that the policy was discriminatory in its inception or that its terms rendered it so. The next six alleged discriminatees, and two to be discussed hereinafter under the 8(a)(3) and (4) violations, are women employees who were not reemployed following leaves of absence. Although, with respect to each, the complaint technically charges the Respondent with un- lawful discharge on a specific date and a failure and refusal to thereafter reinstate, the true issue in each case I find to be one involving the failure of the Respondent to offer reemployment. 6. Jean Ella Potter Jean Ella Potter was hired on April 18, 1962, as a second-shift employee in the sewing department, where she worked for about 4 months before transferring to the day shift, where she worked in such capacity for about I year before again going back on the second shift. While so employed as a second sewer she went on approved mater- nity leave the first of January 1964. On January 9, Potter received the usual confirmation letter sent to maternity leave employees containing the standard language to the effect that "we will be expecting you to return to work August 10, 1964, or 3 months after the birth of your child," and concluding with the request that, if she should be unable to work on the above date, she contact her su- pervisor and discuss the matter with him. While she was on maternity leave, Potter was active in support of the Union, having attended union meetings, signed a union authorization card in May, distributed leaflets at the homes of employees on an occasion during the last of June, and distributed leaflets to knitting employees at the plant gate just prior to the election in November. After the birth of her child on May 26, Potter, on or about July 9, went to the plant, was informed by the receptionist that Parker Bean, her supervisor, had nothing for her, and, while the receptionist was preparing a separation notice laying her off for lack of work, enabling her to draw unemployment compensation," Bean, in passing, asked Potter if they were fixing her up, to which Potter replied in the affirmative. A few weeks later, which would place it prior to August 10, Potter inquired of Bean at the plant as to whether there was any work, to which Bean replied that there just was not anything for her. Potter then went to work for Donna Knitting Mills. Several months later, on October 16, 1964, Potter contacted Bean, telling him that she had made good money with the Respondent and that she 10 It is apparent that, although this occurred in July it must have taken place just before the Tennessee Unemployment Commission tightened up its reins with respect to permitting employees to receive unemployment compensation prior to the end of their maternity leave. 11 The above account is taken from the credited and unrefuted testimony of Potter. Bean did not testify. Roberson, however, denied hav- ing received a call from Potter I do not credit Potter's vague and undated 395 would like to come back. Bean, in replying that he just did not have anything, told Potter, "Jean, that's what all the girls say, but then, why are they causing us so much trou- ble here?" Bean further stated, according to the testimony of Potter, that if something did not change they were going to have to close the mill down. At some point thereafter, Potter called Bean on the telephone, again ask- ing for a job, telling him that she would take any shift, do anything, to which Bean replied that he did not have anything open in the sewing department, and suggesting that she call Roberson. Potter followed Bean's sug- gestion, but Roberson too, told her that he did not have anything open for her.1 t Potter is the first of several alleged discriminatees whose case involves an application of the Respondent's leave policy. Thus, contrary to the General Counsel's as- sertion that Potter was refused employment upon her return from maternity leave, the Respondent maintains that there was no work for her when her leave was up and that, in accordance with company practice, she was separated at that time for lack of work. First, although Potter was not one of the employees who signed a union letter in April apprising Respondent of her union senti- ments, in view of the fact that her activity on behalf of the Union, including attendance at union meetings, coincided with the surveillance of union meetings by Respondent's supervisors, I am of the opinion that an inference of com- pany knowledge as to Potter's allegiance is warranted, and so find. Notwithtanding this finding, it is incumbent upon the General Counsel to prove that, in failing to put Potter back to work after her leave was up and upon her applica- tion, the Company did so because of the Union. To meet this burden here, I find it incumbent upon the General Counsel to show either a deviation in its application of the existing practice or that the Respondent in fact had openings for which Potter was qualified at any time that she applied after her leave was up. I find evidentiary proof of neither. As to the former, substantial evidence, testimonial and documentary, reveals that employees frequently are turned down upon returning from leave because of a lack of work and are separated for this reason.12 As to the latter, Potter's testimony discloses that she applied on July 9 and again a few weeks later,' both times being prior to the termination of her leave, and accordingly, before she was eligible to return to the Com- pany. As to the three valid requests by Potter, two of Bean on October 16 and again thereafter, and one of Roberson at the same time, she was told that there was nothing open for her. Apart from any evidence indicating that on these occasions the Respondent did in fact have openings for which she was qualified, Roberson testified without contradiction that no one was hired as a second sewer, Potter's job, until one was put back on that job a month before the hearing. Under these circumstances, I find that the General Counsel has failed to prove by a pre- ponderance of the credible evidence that Potter's separa- tion from the Company or the latter's subsequent failure testimony to the effect that on at least six occasions after the birth of her child she called Bean about a job 12 Notwithstanding that a reading of the terminology used in the leave letters warrants an inference that one might expect that a job would be waiting when the leave was up, substantial credible evidence reveals that employees generally were aware that such was not the case. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to reemploy Potter, was violative of Section 8(a)(3) and (1) of the Act 13 7. Doris Smith Doris Smith was employed by the Respondent as a first sewer in the sewing department from June 1962 until January 3, 1964, at which time she was granted the usual 6-month maternity leave. On this date, Smith, who was ill and off work, called her floorlady, Rhoda Housley, and told her that she felt like she could not work any longer and that she would like to take her leave. As to this con- versation with Rhoda Housley, Smith testified, "She told me she thought it would be all right for me to take my leave then and that [sic] I asked her if, by taking my leave early I would, it would endanger my job any, would I have a job when I came back. She said she didn't think so, it would be all right for me to talk to Mr Bean." Upon Housley's telling Smith to talk with Supervisor Parker Bean , Smith called Bean and was told that she could take her maternity leave at that time. Shortly after commenc- ing her leave, she received the customary letter from the Respondent, dated January 8, officially approving her leave and, as in the case of Potter and others, telling her that they "will be expecting you to return to work July 13, 1964, or 3 months after the birth of your child." While on leave, Smith signed a union authorization card and attended several union meetings, including the April 16 meeting at Rattan Bridge discussed above with respect to surveillance. However, unlike many of the others, Smith did not sign one of the union letters sent to the Respondent apprising it of prounion sentiments. The record contains absolutely no evidence reflecting when Smith's child was born, except that it must have been after April 16, for Smith, in her testimony relating to the surveillance incident, alludes to her "condition." Although Smith's testimony was completely void of evidence, as was the rest of the General Counsel's presentation, that Smith at any time ever attempted to return to the plant or requested work with the Respond- ent, Smith's separation notice, signed by receptionist Peggy Austin, dated July 7, 1964, and placed in evidence by the Respondent, indicates that there was no work available when she reported back from leave Although Austin has the authority to give out separation notices where specifically authorized or in those instances where she has been previously informed that no openings are available, there is no direct evidence that Smith asked for anything but her layoff Slip. 14 In any event, the notice would indicate that if Smith ap- plied for work it was on or about July 7. which was prior in time to the July 13 reporting date and therefore, at a time when, under the Company, she was not yet eligible for work I find that the General Counsel has failed to prove by a preponderance of the credible evidence that Doris Smith was discharged in violation of Section 8(a)(3) and (1) of the Act. 8 Erma June Keylon Erma June Keylon was first employed by the Respon- dent in June 1963, as an elastic sewer in the sewing de- "See Breckenridge Gasoline Company, 127 NLRB 1462, 1464-65, Shook & Fletcher Insulation Company, 130 N LRB 519, in 1, and The Ohio Rubber Company, 152 NLRB 1121, 1123 partment. On or about June 4, 1964, Keylon requested and was granted a 2-month leave of absence because of poor health. By letter dated June 4, Keylon was officially apprised of the Respondent's approval of her sick leave request, and telling her that she was expected to return to work by August 3. The letter also directed her to contact Supervisor Parker Bean in the event that she were unable to return on August 3, and further suggested that she keep him advised as to her condition so as not to allow her sick leave to expire. On August 3, the day that her leave of absence was up, she called the plant and talked with her floorlady, Rhoda Housley, who referred her to Supervisor Bean . She then contacted Bean and told him that she wanted to return to work. Bean replied that he did not have anything for her to do, but that if anything came up he would let her know. Keylon then received her separation notice. At no time thereafter did Keylon seek employment with the Respond- ent or was there further contact between the two. Keylon testified that she signed one of the union letters sent to the Respondent in April, that her signature ap- peared on the same letter which her husband, Glenn Keylon, had signed, and that they received an acknowledging letter from the Company addressed to them. A perusal of the union letters discloses that her husband signed the first union letter, dated April 11, and that her name does not appear on it. Also, the Respond- ent's acknowledging letter in evidence reveals only the name of Glenn Keylon On the third union letter, dated April 23, however, the name Judy Keylon appears, and, from a layman's viewpoint, the signature appears almost identical to Erma June Keylon's signature appearing elsewhere in evidence I found Erma June Keylon, like Doris Smith, a most honest and credible witness, refreshingly so. Based solely upon her testimony that she signed a union letter, I find that this she did. On these facts, however, I cannot find that Keylon was discriminatonly discharged as alleged, or that the Respondent unlawfully refused to reemploy her at the end of her leave. There is no evidence that at the time of her request there was an opening for an elastic sewer or any other position Keylon might have been qualified to fill Furthermore, the record shows that 2 weeks later another elastic sewer was laid off for lack of work, and two more much later on, with no hires for the job. I find the Respondent's treatment of Keylon to have been in keeping with its policy in this regard, and that the General Counsel has failed to prove by a preponderance of the credible evidence that the Respondent violated Section 8(a)(3) and (1) of the Act with respect to Erma June Keylon. 9 Noreen Nash With the exception of 2 or 3 days in 1962, Noreen Nash commenced her employment with the Company in September 1963, and worked continually as a slitter in the sewing department on the second shift, under Super- visor Parker Bean and Floorlady Ann Thurman, until February 20, 1964. At that time, upon her request, Nash went on maternity leave and, shortly thereafter, received from the Company the usual letter officially granting her " The practice had been prevalent whereby maternity employees would request a layoff or separation slip in order to collect unemployment compensation as long as possible rather than to work and pay babysitters KAYSER-ROTH HOSIERY CO. the leave and indicating that the Company "will be ex- pecting you to return to work October 26, 1964, or 3 months after the birth of your child." It further requested Nash, in the event that she should be unable to work on October 26, to contact Bean. During the period that Nash was on leave, she signed a union authorization card in April and attended one union meeting about the same time. Nash gave birth to her child on July 16. She telephoned the plant 3 or 4 weeks later and talked with receptionist Peggy Austin. In reply to her question as to openings, Austin told Nash she did not think there were any, but that she would check. Nash testified that she (Nash) probably was supposed to have called back. In any event, a couple of weeks later, having sought and received her doctor's release and desiring to return to work early, Nash visited the plant where she talked to Earl Barger, finishing division superintendent. Nash told Barger that she needed a job and would work at anything, to which Barger replied that he could not hire her in the finishing department because it would hurt her mother, but that he would talk to Parker Bean to see if he had any openings." A couple of weeks later, which would place it around the middle of September, Nash went back to the plant and talked with Bean. Nash asked Bean for a job and was told that there were no openings at that time. Nash then told Bean that she believed that there were two slitters' tables empty. Bean then reported that Nash's work record was bad and that she had been absent a lot. Nash acknowledged this fact,16 and after explaining her trouble carrying her child, asked Barger if the reason why he would not take her back was because she had signed a union card. Nash testified that Barger merely looked at her for awhile and asked her, "What made me do it?" When Nash said she thought it was the right thing to do and then asked him if that was the reason he would not hire her back, Barger "brought up the fact that I couldn't draw my unemployment until my leave of absence was up." Nash told Barger that she was already aware of this, and Barger told her to come back when her leave was up and get her separation papers.17 On October 26, or thereabouts, when her leave was up, Nash went by the plant and asked for her separation notice, and was told by the receptionist that Roberson would have to sign it and that he was not there at the time. According to Nash, she never went back for the separa- tion papers or again sought employment with the Respondent. Nash admitted that after her talk with Bean in early September, and several weeks prior to the expiration of her leave, she obtained employment with another em- ployer, Old Dominion Box Company. Nash further ad- mitted that at no time thereafter did she apply for work at the Respondent. In this regard, Roberson testified that, after having been apprised by Bean in early September 15 Barger's version is that when Nash applied to him for a job, he told her he had no openings in the fnislung division and suggested that she try the knitting division under Everett Roberson where she was employed be- fore as a slitter. According to Barger, when Nash insisted further, Barger stated that because her mother, who is Barger's aunt, was related to him it would be bad for him to also put her to work in his division, because of the talk around town that the Company was loaded up with relatives 10 Earlier Nash testified that she had been sick for months prior to tak- ing her maternity leave. 17 The above conversation is taken from the credited and unrefuted testimony of Nash 397 that Nash had sought reemployment before her leave was up, the Company received a request for a reference on Nash from Old Dominion Box Company around the first of October. According to Roberson, Nash was given a satisfactory reference from the Respondent, and was, in turn, hired by Old Dominion Box Company, at which time, October 7, Nash was separated from the Company. Her separation at that time was required under a com- pany policy based upon the fact that, otherwise, the Respondent would be carrying insurance on employees working at other companies. As it is undisputed that Nash at no time reported to work or sought employment after her leave terminated,18 and in fact, was employed elsewhere at such time, and that Nash was separated by the Respondent upon learn- ing of her other employment under an existing practice, I find no basis upon which to infer discrimination with respect to Nash.19 Accordingly, I find the General Coun- sel has failed to prove by a preponderance of the credible evidence that Noreen Nash was discriminated against within the meaning of Section 8(a)(3) and (1) of the Act. 10. Shirley Shaver Wilkey Shirley Shaver Wilkey was employed by the Respond- ent as a production department clerk in the Respond- ent's office from July 1962 until November 1, 1963, when she went on maternity leave. By company letter, dated November 18, 1963, she was told that the Respond- ent expected her to return to work May 1, 1964, or 3 months after the birth of her child, and that if she were not able to return on the above date, she should so advise her office manager, Jerry Ward. A child was born to Shirley Wilkey on December 27, 1963, and 2-1/2 months later, on March 4, 1964, she con- tacted Ward, asking him if she could return to work, to which Ward replied that he had no openings and sug- gested that she check back with him on May 1. Wilkey then asked for and received her separation slip, entitling her to draw unemployment compensation. Subsequently, toward the end of April at a time when her leave was about up, Wilkey contacted Ward, who toad her that they were going to hire in June. Wilkey asked him if she could have a job, to which Ward replied that he did not know, but he was going to have some typists tests, that if she qualified she could have a job, and that she should check back with him.20 Wilkey checked back in July, and was told by Ward that he had hired a girl to fill the typist open- ing, but for her to keep in contact with him. So far as the record shows, Wilkey did not thereafter make any further attempt to secure reemployment at the plant, nor was she contacted by the Company.21 The record further shows that, prior to leaving in November, Wilkey trained a replacement for her posi- tion, and that her replacement was so employed at all iS The fact that two slitters were hired dung September prior to the time when Nash would have been eligible to return does not have a bear- ing on the matter, for, as is abundantly clear from the record , it was a com- mon occurrence for the Respondent to replace people on leave 19 Nor am I of the opinion that Nash 's conversation with Bean in early September warrants an inference of futility as to Nash's reporting to Bean, as set forth in her leave letter, upon the termination of leave and at that time requesting a job. 20 Wilkey's functions as the production clerk were confined to making out production tickets, and did not include any typing. 21 The above account is taken from the credited testimony of Wilkey. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times that Wilkey sought reemployment. The record also shows that, until just before the opening of this hearing, no person had been hired to fill a position of production clerk Wilkey, by her own admission, at no time joined the Union , attended any union meetings, or engaged in any union activity. The General Counsel's position, as articu- lated at the hearing, is that "but for her husband's union activities she would have been reemployed ... would have been recalled." The record in this regard, shows that Shirley Wilkey's husband, Clayton Wilkey, although a signatory to a union letter in April, was still employed by the Respondent and played absolutely no part in matters relating to this proceeding. The one piece of evidence, if credible, that conceivably could provide a discriminatory motive concerns the testimony of Perry Wilkey, Shirley's father-in-law. Perry Wilkey testified that about the last of April or the first of May he had a conversation with Char- lie Kelley, then supervisor of Clayton Wilkey. According to Perry Wilkey, because his son had not known whether he had done the right thing in joining the Union, Perry Wilkey asked Kelley what his son could do to get out of the Union, to which Kelley replied that he should tell him to forget about it or try to get his card back Later on in the conversation, Perry Wilkey asked Kelley, "Would they take Shirley back," and Kelley allegedly said, "No, not [sic] because Claymanjoined th^ Union " Charlie Kelley, no longer a supervisor and apparently a very ill man, testified from his bed in the hospital at the close of this hearing. He testified only to this matter. Kel- ley's version, which I credit, is that on this occasion Perry Wilkey approached him on the street in downtown Dayton and inquired generally as to the Union at the plant, and then queried, "Oh yes, I wonder why they haven't put Shirley . . back to work " Kelley replied that he did not know that she was not working, to which Perry Wilkey replied that he thought it might be because Clayton signed one of those cards and sent it in When Kelley expressed surprise, Perry Wilkey said, "Yes, someone must have put the pressure on him." Kelley testified that he did not know that Clayton had joined the Union until Perry Wilkey told him on this occasion.22 Apart from the fact that Clayton's union sentiments had only a few days before been made known to the Respond- ent, raising a question as to why Perry Wilkey would think that the Respondent had been refusing to recall Shirley because of Clayton's union activity, I refuse to credit Perry Wilkey's testimony over that of Charlie Kel- ley, whom I felt testified in a most forthright and honest manner Thus, it appears that Shirley Wilkey engaged in no union activity, that her job was permanently filled, and that at no time when she applied following her leave were there openings for which she was qualified. On these facts I find that the General Counsel has failed to prove by any stretch of the imagination that Shirley Wilkey was dis- criminatonly discharged or refused reinstatement by the Respondent in violation of Section 8(a)(3) and (I u) of the Act 23 11. Bobbie Sue Dunn Bobbie Sue Dunn was employed by the Respondent on August 7, 1963, as an inspector of leotard legs in the in- specting department. During the 1964 spring union or- ganizing campaign Dunn attended union meetings , signed a union card , and was a signatory to one of the union let- ters sent to the Respondent. On or about September 3, 1964, Dunn asked Parker Bean, her supervisor, for a 2- week leave of absence to take care of her sick child because she had no babysitter. Bean told her that he was not allowed to give her a leave for this reason, but that he would give her a 30-day sick leave, which he proceeded to do. By a form letter dated September 3, Dunn was offi- cially apprised of her leave and told that she was expected back to work by October 5. It also requested that she keep her supervisor informed of her condition and that if she were unable to return to work at the end of her leave for her to discuss the matter with Bean. Before leaving, however, consistent with company practice , Bean told Dunn that he could not hold a machine open for her, and that if he had an opening when she came back at the end of her leave he would give it to her. On the Friday before she was to report back on Oc- tober 5, 1964, Dunn called Bean to find out whether she was to report in early, and Bean told her that he did not have any work for her but for her to come in to the office before lunch on Monday, not prepared to work. On Mon- day, Bean told her that he did not have any inspecting jobs open, that he would give her a separation slip so that she could draw unemployment, and that he would call her back when he had an opening on inspecting. Later that day, after being told at the unemployment office that she would not be able to draw unemployment,24 Dunn returned to the plant and advised Bean of the situation Bean immediately called the unemployment office and rectified the situation. At no time thereafter does the record show that Dunn sought further employment with the Respondent. In early March, however, when an inspectingjob opened up on an inspecto-matic machine, after unsuccessfully attempting to call Dunn by telephone, the Respondent sent word by her employee husband for her to call the plant. Upon calling the office, Roberson told Dunn that they had a machine for her Because Dunn was 6 months pregnant at the time she was unable to accept 25 In this regard, Roberson testified without contradiciton that no one had been hired in the inspecting job prior to calling Dunn back in March, and that when they sent for her on this occasion he was not aware of her pregnancy. Notwithstanding Dunn's union activity the previous spring and having been interrogated by Supervisor Troy 22 Documentary evidence reveals that, although Clayton Wilkey was one of those who signed the April 17 union letter , said letter was not received by the Respondent until April 27 Accordingly, it is quite possi- ble that Kelley had not previously heard of Clayton's having signed with the Union 23 Moreover, the complaint alleges that Shirley Wilkey was discharged on or about October 1, 1964 There is absolutely no evidence , even her own testimony , with respect to this date or anywhere near it The charge naming Shirley Wilkey a discrimmatee was initially filed on February 23, 1965. Accordingly, as all matters herein pertaining to Wilkey occurred more than 6 months prior to the filing of the charge , 1 find that, even if otherwise meritorious , the allegation pertaining to Wilkey is barred by Sec 10(b) of the Act za This was so because , although returning from a leave of absence for sickness , in fact Dunn had not been out because of her own illness, and therefore was r.ot in a position to obtain a doctor's release as requested by the unemployment office 25 The factual account above set forth is taken fron the credited testimony of Dunn KAYSER-ROTH HOSIERY CO. 399 Ward on one occasion on June 4, as discussed heretofore under 8(a)(1) conduct, the record contains no evidence than an inspector's job was open and needed filling on the one occasion that Dunn applied for work after her leave was over. Accordingly, I find that the General Counsel has failed to prove by a preponderance of the credible evidence that the Respondent discriminatorily discharged or refused to recall Bobbie Sue Dunn. 12. Ronald W. Patton Ronald Patton commenced his employment with the Respondent on August 11, 1963, working as a knitter on the I1 p.m. to 7 a.m. third-shift under Supervisor Cecil Housley, and was so employed until his discharge on Au- gust 28, 1964. With the advent of the Union in April 1964, Patton became active in its behalf, signing a card, passing out leaflets, signing up other employees, and plac- ing his signature on one of the union letters sent to the Respondent. As alluded to above, on two occasions dur- ing the middle of April, Patton was interrogated about the Union, first by Everett Roberson and later, by Leon Young. About 5 a.m. on August 28, Patton left his work sta- tion and went to the restroom. After a short while he came out and went some 20 to 30 yards past his own machine and stopped and talked with employee Gary Keylon who was standing in the main alley at the end of his machine. After a short stay with Keylon, Patton headed back towards his work station and stopped again, about half of the way, where, before returning to his machine, he engaged employee Jerry Wilkey in a conver- sation. Thereafter, just before the 7 a.m. end of the shift, Ralph Mayes, head supervisor of the knitting department, approached him at his machine and told him that he wanted to see him in the office before he left. Pursuant to Mayes' request, at 7 a.m. Patton went by to see Mayes, during which conversation 26 Mayes allegedly com- menced by stating "I like the little talk we had about the Union the other day,"27 and, without interruption, con- tinued by saying that he had a complaint that he (Patton) had taken a 13- to 15-minute break. When Mayes asked Patton if he did not think that he was right on getting on his back about it, Patton replied that it was right, but that he had not taken a 13- to 15-minute break.28 Patton ad- mitted to Mayes, however, that he had gone to the restroom, and thereafter had gone by and talked with Keylon and with Wilkey. Patton testified that at this point "I told him that I wasn't the only one that took those- took a break, even if it was 13, 15 minutes, but I didn't say I took a 13, 15 minute break because I hadn't, but I said I wasn't the only one that took long breaks. He said well, tell me who else took long breaks like that, and I told him well, I'm not going to tell you who takes them. That's all I recall." On cross-examination, however, he did recall more, and freely admitted that Mayes then told him that he was going to have to let him go, to which Patton replied that he could knock hell out of him. At this point, Mayes asked him if he wanted to talk with Roberson, and upon receiving an affirmative reply, the two of them went to the latter's office. Mayes, before Patton entered, told Roberson that he wanted him to talk with Patton, that he was taking too long for specific breaks, and had threatened him with physical assault. When Patton en- tered the office, Roberson confronted him with having made one of his breaks that night a 15-minute break, which Patton admitted, and accused him of going to other employees' alleys, specifically those where Keylon and Wilkey worked, and talking with them. When Patton ad- mitted the fact, Roberson asked him if he had not been told to limit his breaks to 5 minutes and to not go into other alleys and talk to and bother employees. Patton ad- mitted that he had been told these things, but countered with "well, you didn't put these damn silly ass rules in there until the Union came." When Roberson queried him on this, Patton continued by stating that "these are just silly ass rules for anybody to go by. You don't have to worry about working out there. All you do is sit back behind the desk. You don't have to worry about your job. I have got to work out there and they are just silly ass rules to go by." At the close of Patton's discourse, Rober- son said, "Well, Ronnie, with an attitude like that, you don't leave me any source [sic] but to discharge you," which Roberson proceeded to do.29 The Respondent asserts that the discharge of Patton was based on his willful refusal to abide by the company rules coupled with a continued poor attitude on his part including the threat of physical assault on Mayes. Apart from the overall necessary allegation of discrimination, it remains slightly confusing as to the position taken by counsel for the General Counsel with respect to Patton. Based upon the testimony elicited by him from several witnesses, and particularly from Patton himself, it ap- pears on one hand that the General Counsel is asserting that the Company remained lax with respect to the en- forcement of its rules, particularly those pertaining to the taking of breaks and talking with other knitting room em- ployees at their work stations until the date of Patton's discharge on August 28, and that then, for the first time, said rules were discriminatorily applied to Patton. On the other hand, other testimony elicited by counsel for the General Counsel, some of which came from the same wit- nesses, would indicate that the change in such rules and/or the enforcement of them occurred at the time that the Union arrived on the scene, which was some 5 months earlier. I assume the former to reflect the correct position. In this regard, Patton testified on direct examination that up to the time of his discharge in the knitting machine area, you could go in anybody's alley (knitters worked in 21 Notwithstanding the lack of credence I place in Patton 's testimony, because Mayes was not called as a witness (until the record was reopened), the recitation of facts as to this conversation is taken from Pat- ton's unrefuted testimony, mostly on cross-examination 27 This reference appears to have been to the early August conversation testified to by Patton and alluded to earlier herein in connection with 8(a)(1) conduct, wherein, Mayes approached him at his machine and asked him how the Union was getting along, volunteered the fact that he had seen some of the union men downtown that day, and stated to him that "I don't care who joins the Umon or what the Umon does , all I want is a good 8 hours work out of somebody." 11 On cross-examination, however, Patton testified that he could not re- call whether or not he admitted to Mayes to having taken a 13- or 15- minute break. 29 The facts relating to this conversation are taken from the testimony of Roberson and of Patton on cross-examination. While the quoted material is that of Roberson , most all of the pertinent testimony was either specifically corroborated , or not denied, by Patton when questioned on cross-examination. The one exception is Patton's continued denial that he took as long as a 15-minute break on that particular night Patton, how- ever, as noted above, could not recall whether he had admitted this fact earlier to Mayes, and did not deny having taken 15-minute breaks at other times, testifying merely that "I didn't time myself." 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rows of knitting machines referred to as alleys), and could talk to anyone around his machine and nothing was said about it, that, in fact, during the whole year he worked there, three or four times a night Patton, James Calbaugh, and Wendell Anderson would sit around a little table and talk for 15 or 20 minutes at a time. Patton further testified that before the Union came in no supervisor had ever talked to him or scolded him about taking too much breaktime, but that, right after the advent of the Union, in May, Housley came around and told everybody not to take over 5 minutes for a bi eak and that, from that point on, they would not be allowed in any- body's alley. Patton testified that after these instructions by Housley were given, employees were not supposed to go in other people's alleys, and that "we tried not to take over 5 minute breaks." At another point in his testimony, however, Patton stated that employees, including himself, did not obey these instructions and, up until his discharge, no one complained to him about it. Patton admitted that, about I month before his discharge, Mayes told him that employees were allowed 5-minute breaks but not to take too many of them. Patton, who, on one occasion, violated a company rule prohibiting the use of profanity in the plant, admitted that he had been reprimanded a number of times by the Respondent and admonished to stay within the rules. Thus, the record bears out the Respondent's assertion with respect to this employee. Indeed, Patton's testimony alone reflects his past refusal to abide by the rules as well as his defiant attitude toward supervision generally.30 With respect to the latter, on one occasion in April, when his supervisor, Housley, talked to him concerning some bad work, which Patton testified that he "could not see," and Housley asked him if he wanted him to write an offi- cial reprimand, Patton replied that he did not care whether he did or not. His indifferent attitude toward company rules is exemplified by his testimonial admis- sion that he told Supervisor Mayes that company rules were set up to hurt people, that they were established in order to get at people, and that they were silly rules governing the conduct of employees. I find that, in taking more than 5 minutes for a break and by visiting other employees at their work stations and while they were operating their machines on the night of his discharge, Patton violated company rules,31 and that, in threatening physical assault upon Supervisor Mayes, coming as it did without provocation,32 Patton acted completely outside the bounds of propriety. Mindful of the fact that Mayes raised the subject of the 'Jnion with Patton some several weeks before the discharge incident, and that he made reference to it on the night in question, I am not prepared to infer from this that Mayes was discriminatorily motivated in deciding to discharge Patton. Although the brief, one-sided conversa- tion in early August commenced with Mayes unlawfully inquiring as to how the Union was getting along, it con- cluded by Mayes venturing his thought that he did not care who joined the Union or what the Union did as long as he received 8 hours of work "out of somebody." In view of a total lack of evidence of any other union state- ment having been made by Mayes to Patton at any other time, coupled with Patton's admission as to his practice of taking lengthy and numerous breaks and Mayes' earlier directive to him to limit his breaks to 5 minutes, I choose to hold that Mayes' statement was intended as an ad- monishment to Patton to put in 8 hours of work rather than as support for an inference of discriminatory motive. Under all of the circumstances, I find that the General Counsel has not proved by a preponderance of the credi- ble evidence that Ronald W. Patton was discharged in violation of Section 8(a)(3) of the Act. Moreover, even if I had found that the facts supported the 8(a)(3) allegation, I could not have recommended the usual reinstatement order with respect to Patton. During the sixth day of the hearing, prior to Patton's having testified herein, and just before reconvening following a 5-minute recess, counsel for the Respondent indicated to me that Patton had approached the counsel table, and, in his presence, threatened one of his witnesses who was sitting at the table with assault. Upon reconvening the hearing, I called Patton as my witness, and in reply to my question, Patton freely admitted having said to Clayton R. Strictland, "I will get you if it is the last thing I ever do."33 Apart from the seriousness of this conduct and the fact that it would appear to be violative of a Federal statute prohibiting intimidation of witnesses in a proceed- ing before a federal agency,34 an off-the-record admonish- ment by me did not seem to have any effect whatsoever on the boy Thus, were my basic finding otherwise, I could not in good conscience have required the Respond- ent to reinstate this employee. 13. Calvin Creekmore Calvin Creekmore was hired by the Respondent in Oc- tober 1963, and put to work as a packer on the first shift in the shipping department. He was discharged in April 1964, called back a week later, and thereafter continued his employment with the Respondent until his final separation on September 2, 1964. Creekmore had been active in support of the Union, having solicited signatures on union cards, visited employees in their homes, at- tended union meetings , and, in April, prior to his first discharge, having signed a union letter sent to the Respondent. According to the testimony of Creekmore, about 2:45 p.m. on September 1, his foreman, Oliver "Bud" Young, 3" Based upon my observation of this witness, it was readily apparent to me that he displayed the same attitude on the witness stand and in the courtroom that the Respondent asserts was a basis for his discharge See A J Sackett and Sons Co , 139 NLRB 1272, 1277 31 1 further find the earlier implementation of such rules to have been a necessary correction of existing evils (witness Patton 's admission of tak- ing three or four i 5- to 20-minute breaks every night during the year of his employment), and not motivated by union considerations 32 Contrary to the usual or certainly more common situation involving an employee threat to his supervisor or a company official , Patton's threat to Mayes , although occurring after Mayes told him that he was going to have to let him go , did not come about as a result of a heated argument Nor was it accompanied by flaring tempers or uttered in a fit of anger 11 The record contains considerable testimony concerning Stnctland and the part he played as an agent for the Mark Lipman Service, Inc , de- tective agency investigating theft in the plant According to counsel for the Respondent, however , Stnctland, became violently ill during the hearing, requiring extended hospitalization , and therefore was never called upon to testify " 18 U S C A Sec 1505, provides in part Whoever corruptly , or by threats or force, or by any threatening letter or communication, endeavors to influence , intimidate, or im- pede any witness in any proceeding pending before any department or agency of the United States Shall be fined not more than $5,000 or imprisoned not more than five years , or both See Ricev US, 356F2d709(CA 8) KAYSER-ROTH HOSIERY CO. 401 approached him and asked if he would work overtime, to which Creekmore replied that he had already made plans for that afternoon. Young asked him what they were, and Creekmore told him that he planned to go to a meeting. When Young asked what kind of meeting, and was told that it was a union meeting, Young said he did not know, that he was in no position to grant him permission to be off from overtime, that he would have to see Earl Barger, the finishing division superintendent. Young returned just before the shipping department shift ended at 3:30 p.m., and told Creekmore that Barger had refused to grant him permission to get off from overtime.35 With that, Creek- more left. The following morning, after having attended the meeting of the Union, Young met Creekmore at the back door, and handed him his separation notice, his check, and some petty cash. Young told Creekmore that he wanted him to know that, like the first time he was discharged, he (Young) had nothing to do with it. Employee Joe Pritchett, a witness for the General Counsel, testified that on the day in question, after Young came out and told him and another employee who was nearby, "Boys, we have to work over today," Young went over to Creekmore and told him the same thing. Ac- cording to Pritchett, Creekmore replied that, "I can't work over, because I have to go to a union meeting." When Young told him he would have to see Earl Barger, Creekmore answered, "You better get him out here then." Earl Barger, who in his short tenure with the Company as finishing division superintendent, admitted that this was the first time that he had ever directed an employee to work overtime and the employee had refused, and also the first time he had discharged an employee for refusing to work overtime, testified without contradiction that on the day in question he had apprised Young of the need for the shipping department to work overtime and that about 10 a.m. on that day Young told him that Creekmore had told him that he would not work over, that he was going to a union meeting. When Young asked Barger what he should do, Barger, who was new with the Company, said he did not know legally what to do, that he would let Young know. According to the unrefuted testimony of Carlysle Isley, vice president in charge of public and industrial relations, and headquartered in Burlington, North Carolina, Barger called him at his Burlington office around 10 a.m. and re- lated the Creekmore problem to him. Upon ascertaining from Young that he needed the whole department to work overtime,36 and in reply to Barger's inquiry as to what he could do, Isley told Barger that if Creekmore refused to work along with the other employees, he could be discharged. Isley told Barger to contact Creekmore and the others in the department to make sure that they un- derstood that they were to work overtime that day. That afternoon around 2 or 2:30 p.m., as testified to by Barger, he talked with Young again and told him that they needed Creekmore to work, and to advise him that if he refused to work over he would be discharged. Based upon the record as a whole, I find the facts sur- rounding Creekmore's refusal to work overtime and his subsequent discharge to be as testified to by Barger, Isley, and employee Pritchett,37 all of whom impressed me with their candor while testifying.38 While the record, particularly Barger's testimony, in- dicates that Creekmore's discharge was the first involving a refusal to work overtime, Pritchett, testifying for the General Counsel, testified that normal procedure for working overtime was for Young to come around during the day and inform the employees that they had to work overtime that day, that of the six or eight times that he had not worked overtime when such was scheduled, vir- tually all of them were because of illness in the family and he had been given express permission to be off from over- time, and that, at no time, he had ever taken off after hav- ing been told not to, nor had he heard of this ever happen- ing except in the case of Creekmore. Creekmore, himself, testified that, although there had been occasions when he had not worked overtime when there was overtime to be worked, he had never before September 1, refused an order to work overtime and that he had never refused to work over when his request not to do so had been turned down. Thus, it is readily apparent that the discharge of Creek- more falls squarely within the Board's holding in the Swift Company case,39 and that Creekmore's refusal to work overtime after having been denied permission to be off constituted an attempt to work on terms prescribed solely by himself, a valid ground for discharge 40 Pure and sim- ple, the above facts disclose that the Respondent had been working the shipping department overtime for at least a week and needed the whole department again on the day in question, that Creekmore, along with the other department employees, was told that he had to work over, that Creekmore made known his intention not to work over because of a union meeting'41 and that, when told that he was needed and could not be off, Creekmore dis- obeyed the directive and took off anyway. Under these circumstances,42 the fact that Creekmore had been one of the more active of the union adherents does not in any way override the Respondent's justifiable ground for the discharge. One's past activity on behalf of a union cannot immunize an employee from managerial control or 31 Initially Creekmore testified that when Young returned he told Creekmore that he could go ahead if he wanted to. On cross- examination, however, he admitted that he had testified as herein recited under oath be- fore a Tennessee Unemployment Commission shortly after the incident occurred, and that this was the fact. 36 The record amply demonstrates that the department had been work- ing overtime for quite a while and continued to do so for some time thereafter. In this regard, Pritchett testified that the department worked 4 days the week before and several days immediately thereafter. 37 Because of Creekmore's changing his testimony on a very crucial matter concerning his case, i.e., as to whether he had been given permis- sion to leave, I cannot and do not give it credence to the extent that it con- flicts with other credited testimony. 38 Although Pritchett did not indicate what time during the day it was that Young initially apprised them of the need to work over, in view of credited testimony of Barger and Isley as to this incident , I find it oc- curred during the morning and not just before the end of the shift as testified to by Creekmore. 39 John S. Swift Company, Inc, 124 NLRB 394 40 C. G Conn, Ltd. v. N.L.R B., 108 F.2d 390 (C.A 7); N.L.R.B. v. Mt Clemens Pottery Company, 147 F.2d 262 (C.A. 6); L. W. Scott dlbla Scott Paper Box Company, 81 NLRB 535, 546-548; Valley City Furni- ture Co, 110 NLRB 1589, 1592-96 41 There is no evidence that the Respondent had knowledge of a union meeting at any time prior to asking Creekmore and the others to work overtime. 42 Cf. Dow Chemical Company, 152 NLRB 1150, wherein the Board, in adhering to the general principle here controlling, distinguishes this situation from that involving a refusal to work overtime where the practice has been to have employees volunteer for overtime work. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD properly found disciplinary action."; I find that Calvin Creekmore was discharged on September 2, 1964, for cause and, as the General Counsel has failed to prove otherwise, shall recommend that the 8(a)(3) and (1) al- legations as they pertain to Calvin Creekmore be dismissed. 14. Mary Francis Bowen Mary Bowen was employed by the Respondent in April 1964, as an inspector of knee socks in the toe seam- ing and inspecting department under Floorlady Charlotte Dotson and Supervisor Parker Bean. She worked in this capacity until her discharge on September 22, allegedly for using profanity on the job in the presence of other women employees. A couple of months after Bowen started with the Respondent she signed a union card and "talked to other employees about signing a union card." According to the uncontradicted testimony of Bowen, she did not work on Monday, September 21, because she was ill, and when she went to work on Tuesday, Dotson approached her at her machine and told her that Bean wanted to see her in his office. Thereupon, Dotson and Bowen went to Bean's office, where Bean told her that he was turning her loose. In reply to Bowen's inquiry, Bean told her it was for using profane language. Bowen protested that she did not remember using any, and Bean told her that she had, that she had been a good worker and that he disliked turning her loose. When Bowen asked him for a separation slip, Bean refused, telling her that it would not help her any. Everett Roberson testified that on Friday, September 18, Parker Bean reported to him that Floorlady Dotson had had complaints from a number of girls who worked near Bowen to the effect that she was using very foul and profane language in their presence, to which they ob- jected. Based upon this report, Roberson instructed Bean to investigate and to talk with the girls about the matter. Bean, on the following Monday or Tuesday, reported back telling Roberson that he, along with Dotson, had in- vestigated and that Lena Rose Clark, Ilon Ward, Ruth King, and Nei Reed all accused Bowen of using foul and filthy language, some of which they related and others they would not, that they did not appreciate it, and that they wanted to be moved. Upon ascertaining from Bean that he was sure of his facts and that in his own opinion "she would continue to use" bad language, Roberson told Bean to talk to Bowen about it, and that if she admitted to using the language to discharge her, and if not, to repri- mand her. On Tuesday, after having talked with Bowen, Bean told Roberson that she had admitted it to him and to Dotson, and that he had discharged her Although neither Bean nor Dotson, the two company principals in this matter, testified in this proceeding'44 two of the inspectors working with Bowen did testify as to the incident. Thus, Lena Rose Clark, who sat side by side 43 The Wm H Block Company v N L R B, 367 F 2d 38 (C.A 7) See also Metals Engineering Corporation, 148 NLRB 88, 90, and A J Sackett and Sons Co. 139 NLRB 1272, 1277. for the Board's holding that an employee's union activity does not confer immunity from dis- ciplinary action for insubordination 44 Both were subsequently relieved of their supervisory functions, Bean on November 4, 1964, and Dotson on March 29, 1965 45 Clark would not repeat these on the stand, but she wrote them on a paper, and they were then transcribed into the record 46 As in the case of Clark, when examined on this. Ward wrote these with Bowen, testified that before Bowen's discharge she talked to Floorlady Dotson about the profane language that Bowen used. Shortly thereafter, Bean asked her if Bowen had used profane language and she told him that Bowen did. Bean asked her what words she had used and Clark told her two of them were "goddam" and "bitch."45 Clark testified that Bean did not ask and she did not reveal to him how often she heard Bowen use this sort of language. Clark admitted that she was peeved with Bowen because Bowen was picking out good work for herself and leaving bad work for others, and that she told Dotson this during her conversation with Dotson. Clark testified that Bowen used profanity all the time, but that she never complained to supervision about it before this, that anyone whom Bowen did not like she referred to as a "bitch," although not to their faces, but that she (Clark) had at no time asked to be moved away from her. The other inspector, Ilon Ward, who worked two chairs up from Bowen, testified that Dotson had asked her if she heard Bowen use bad language, and she replied that she had, that she heard Bowen refer to Clark and to Dulaney Elsea as "s.o.b.'s" (but not in abbreviated form), and that Bean later asked her if she heard anything about Bowen's using profane language, and she told Bean that she had, but did not tell him specifically what her lan- guage was. Ward testified that that was all she was asked by Bean or that she told him. Ward testified that she had heard Bowen use one other "pretty bad" and "vile" word, the word "damn,"46 but that, in using it , Bowen did not direct it at anyone in particular. Ward further testified that, although she did not like Bowen's using these words, and that she told Dotson and Bean so when they asked her, she never complained to a supervisor about Bowen's language. Later Ward testified that the use of the word"damn" did not bother her.47 A considerable amount of testimony was devoted to a note, more precisely, a torn scrap of paper with several legible words on it, allegedly written by Bowen to a girl- friend on the Friday before her discharge and found in a nearby wastepaper basket. At the time, I received this in evidence stating that I would rule upon its materiality in this Decision. Bowen denied that this was her doing. In view of Roberson's testimony that this note played no part in his decision to discharge Bowen, and that he at no time discussed it with Bean in connection with Bowen's discharge, I find it immaterial to the issue concerning the Respondent's motivation in discharging Bowen and therefore give it no weight.48 In view of my finding with respect to this document, I deem it unnecessary to com- ment further on the testimony pertaining thereto. In answer to the complaint allegation that Bowen was discriminatorily terminated from the Company's employ, the Respondent asserts that Bowen was discharged for using profanity on the job to which other women em- ployees had raised complaints. As in all cases involving allegations of discriminatory discharge, a necessary in- two quotes on a piece of paper, and they were later transcribed into the record 47 Ward, who did not corroborate Clark's accusation concerning Bowen's selecting the best work , testified in a most forthright manner I consider her a truthful witness. 48 The most that could be said for the scrap document is that, if, con- trary to Bowen's testimony, it were believed that she were the author, it would confirm the Respondent's assertion that Bowen was capable of using bad language. As hereinafter noted, I find this to be the case without reference to this document KAYSER-ROTH HOSIERY CO. 403 gredient is a finding of company knowledge as to the dis- criminatee's union activity. In this regard, the evidence discloses that Bowen signed a union card around June and that she solicited on behalf of the Union among her fellow employees. Nothwithstanding a contrary state- ment in her pretrial affidavit, however, it does not appear that Bowen signed a union letter. Nor is company knowledge established through her testimony to the ef- fect that in April, Floorlady Edith Crawley, not proven to be a supervisor, asked her if she had signed a union card, and upon receiving a "No" reply, advised Bowen not to sign because it would go against the mill. However, in a real effort to establish company knowledge of Bowen's union sentiments, Bowen testified that the first time she ever saw Earl Barger, the new divi- sion superintendent, was on Saturday morning before her discharge the following Tuesday, September 22. Her ver- sion of the incident is that at 7 a.m. on this morning, while the two of them were alone in the lobby of the Rhea County Hospital, she struck up a conversation with Barger, although not knowing who he was, by stating that it was awful early to be drinking a coke but that she was used to it, drinking one every morning before going to work. At this point, without conversation by Barger, Bowen continued by asking , "How is our union coming at the mill?," to which Barger replied that he did not know, but that he did not think it would go through. Bowen allegedly stated that "I think it will because it is good thing to have and I am all for it." At this, Barger al- legedly reiterated his opinion, and then asked Bowen her name, where she worked, who her floorlady was, and what position she had at the mill. Bowen allegedly replied with a counterquestion as to his name, and was told that he was Earl Barger and that he was taking Kelley's place at the mi1L49 Barger testified that he conversed with Bowen on this occasion, and that during the conversation, Bowen "won- dered what was going to happen up there" with the Union, but emphatically denied that Bowen in anyway expressed herself in favor of the Union or made it known to Barger how she felt about the Union. In answer to further questioning, Barger testified that he was at the hospital because of his father's serious illness, requiring surgery on the morning in question, that his father was not expected to live, and therefore he remained with his father at the hospital constantly through the weekend and until the following Monday or Tuesday, and that during this time he had no telephone conversation with Rober- son or the plant. According to Barger, sometime after returning to the mill, a day or two perhaps, he mentioned to Roberson that he had met one of his slitters at the hospital, and was told that she had been discharged for some reason that Barger could not specifically recall. Even without Everett Roberson's corrobative testimony as to this matter, I credit fully the testimony of Barger. Apart from the fact that Barger's employment with the Respondent had terminated 2 months before this hearing, thus placing himself in no way to gain by slanting his testimony in favor of the Company, Barger impresv'ed me as a very fair and unbiased witness whose demeanor on the stand left little to be desired. Barger answered questions forthrightly and without hesitation. I credit his testimony completely, including the above.59 Notwithstanding the fact, however, that the record contains no direct evidence of company knowledge as to Bowen, the record reflects that with time most of those who were for the Union, even over and above those who signed union letters to the Company, became known to the Respondent, or at least, were suspected as favoring the Union. The testimony of several of the Respondent's supervisors, at least by inference, bears this out. Ac- cordingly, I find that the sentiments of Bowen, who ap- pears to have been less than silent on the matter, became known to the Respondent sometime between June and the latter part of September.51 Turning now to the Respondent's defense, I find on the record that Bowen was perhaps gifted to the use of some profanity, that on the particular occasion, she was guilty of using profane language, and that it was reported by Clark to Dotson and in turn to Roberson. I do not credit Roberson's testimony, however, where, in reply to a question concerning earlier complaints against Bowen, he testified that "the inspectors, I think, have been com- plaining about it." There is no evidence supporting this. In fact, the two inspectors called by the Respondent to testify in support of its discharge of Bowen both testified that they had never before complained of Bowen's foul language. On the record, it does not appear to me that the entire matter was nearly as serious as the Respondent makes it out to have been. First, while in no way condon- ing the use of profane language on the part of ladies, the evidence does not reflect that Bowen was guilty of shout- ing it or calling others names to their faces. In fact, it would appear only that, to the extent to which Bowen used bad words, she did so in a conversational manner. Secondly, it appears that only Clark registered a com- plaint against Bowen, Ward testifying that she (Ward) did not, and with no testimony forthcoming from the other two named by the Respondent. And even Clark, by her own admission, had it in for Bowen and let it be known to Dotson. Thirdly, Clark had never before complained to management about Bowen's language and even Roberson admitted that this was the first time that he had had com- plaints against Bowen for using profanity. In this regard, notwithstanding a company rule prohibiting the use of profanity,52 Roberson testified that male employees were known to use profanity, and that he could not recall any previous discharge for using foul language. Finally, without attempting to substitute my judgment for, that of the Respondent, it would seem that, without an additional and an alternative motive, this having been the first such offense against Bowen, and, in my opinion a relatively 99 Barger had just the month before been hired to replace Freeman Looney as superintendent of the finishing division , not Elmer Kelley, who had been the plant general manager. so Not only do I discredit Bowen's testimony where it conflicts with that of Barger, because I found Bowen to be most evasive in her reply to questions and less than forthright while testifying , I do not credit her testimony to the extent that she denied ever using language of the type at- tributed to her by Clark and Ward, particularly the latter, or to the extent that it denies that she had heard of Clark 's having reported her to Dotson, as credibly testified to by Ward. si Had Bowen become a union adherent only recently or within a short time of her discharge, however, on these same facts I would not have drawn the inference of company knowledge. 12 This posted rule reads 3. CONDUCT- The use of profane, abusive or threatening lan- guage toward others or fighting or threatening bodily injury to anyone is prohibited. No running or horse play is permitted. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minor one, the Respondent could have at the most moved Bowen to another part of the area with an admonition to guard her tongue in the future. In any event, under all of the circumstances, I feel that the inference is warranted that the Respondent, in discharging Mary Francis Bowen on September 22, did so for reasons relating to union ac- tivity, and that, in so doing, violated Section 8(a)(3) and (1) of the Act. 15. Kenneth Toole53 Kenneth Toole was first employed by the Respondent in November 1959, and worked until the late summer of 1960, when he quit. He was reemployed on January 17, 1961, and worked as a machine fixer in the knitting de- partment until he was terminated on May 16, 1964. Dur- ing the union organizing campaign just prior to his May discharge, Toole had been active in the Union, having signed a union authorization card and one of the union let- ters notifying the Respondent of that fact, and having at- tended a number of union meetings and solicited union support while visiting employees in their homes. Pursuant to the terms of the August settlement agree- ment, Toole was reinstated on or about August 13, 1964, and worked on the second shift under Supervisor Troy Ward until his second discharge, and the one here in is- sue, by the Respondent on September 30, 1964. On this date, before reporting for work, Toole, who had just prior thereto received through the mail a check from the Respondent covering backpay under the settlement agreement, printed on the outside of the large sized en- velope the words "UNION MONEY-BACKPAY CHECK," and placed the envelope in his left-hand shirt pocket in such a manner as to leave some 4 or 5 inches showing on which the quoted words were clearly visible. Toole then went to work on the second-shift which started at 3 p.m. Sometime between 5 and 5:30 p.m., while on the job as machine fixer, which function required him to move throughout the knitting room, Toole al- legedly was observed by the superintendent of the knitting division, Everett Roberson, talking with other employees, one of whom had stopped his machine and was engaged in laughter. Roberson, who had earlier ob- served the envelope sticking out of Toole's pocket, went to Toole after the incident and asked him if it were neces- sary for him to have the envelope in his pocket. When Toole replied in the affirmative, Roberson, without further comment, left and talked with Troy Ward, Toole's supervisor who was at the other end of the room. Upon allegedly ascertaining from Ward that he, too, had noticed employees laughing and talking about the envelope, Roberson went back to Toole and asked him to either turn the envelope around or put it in his toolbox (to which only Toole had a key). Toole replied that he did not want to do either, and after a second order by Roberson to the same effect, Toole again said he was not going to do it. When Roberson asked Toole if he were refusing to turn it around or to put it in his toolbox, Toole replied that he was refusing, telling Roberson that he liked it right where it was. At this point, Roberson told Toole that if he did not do one of the two, he would have to discharge him, to which Toole reiterated his refusal to do either. Where- upon, Roberson suggested that they go and get Toole's toolbox and his pay. On the way, Toole said to Roberson "I'll tell you right now, that damn labor board is going to straighten your ass out this time." When Roberson asked Toole what he meant, the latter replied, "Well, you can't fire me like this." Roberson then told Toole that he still had three choices, to turn the envelope around, to put it in his toolbox, or to do neither and be discharged. Toole again refused Roberson's alternative directive and the two proceeded to the knitting department office where, after one more time refusing Roberson's request that he change his mind, Toole was discharged for insubordi- nation.54 In resolving the issue as to the legality of Toole's discharge on September 30, it first must be conceded that Toole's conduct in refusing to obey the instructions of Roberson consitituted insubordination, and that such conduct by itself, is or may be grounds for disciplinary ac- tion, including discharge. Accordingly, the question posed, as framed by Board law on the subject, concerns the right of the Respondent to require that Toole cease "wearing" the printed envelope in the manner above described, as against the right of Toole to engage in such conduct. If the Respondent possessed such a right, it could lawfully discipline Toole for his refusal to obey. If, however, Toole were engaged in an activity protected under the Act, the Respondent could not lawfully deprive him of his right to do so, and therefore, Toole's insubor- dinate refusal to comply with Respondent's mandate may not validly be asserted by the Respondent as a basis for effectuating his discharge. As the Board and the courts have long recognized the right of employees to wear and to display union insignia at work as a reasonable and legitimate form of union activity'55 and have adhered to the doctrine that, absent special circumstances relating to the maintenance of production and employee discipline, interference with such activity is presumptively invalid,56 the preliminary question arises as to whether the envelope containing the words "UNION MONEY- BACKPAY CHECK" constitutes union insignia within the meaning of the above rationale. While research has uncovered no case directly passing upon this matter, the Board, with court approval, has adhered to its rationale in many cases involving unusual buttons, emblems, and even articles of clothing.57 Thus, in the Murphy Diesel case, the Board, recognizing that the strike date signs worn by employees and placed by employees upon their toolboxes advertised an impend- ing strike , held that such signs in essence "were no dif- ferent from union insignia worn by employees to adver- 53 The findings of fact and the conclusions of law relating to this man's discharge are in no way predicated upon his testimony , for, based upon Toole's evasive manner in replying to questions , his conflicting and in many instances completely implausible testimony, and, in particular, my observation of his demeanor while testifying , I cannot and do not place credence in his testimony. 54 The above recitation of facts concerning the discharge conversation is taken from the credited testimony of Roberson Toole's version of the conversation, however, although more brief, is not consistent generally with that of Roberson. 55 Murphy Diesel Company , 120 NLRB 917 ; Republic Aviation Cor- poration v. N L.R.B., 324 U.S. 793 Ss Boeing Airplane Company, 103 NLRB 1025, enfd. in pertinent part in Boeing Airplane Company v. N.L.R B., 217 F.2d 369, 376 (C.A. 9); Mayrath Company, 132 NLRB 1628, enfd. 319 F.2d 424 (C.A. 7); Murphy Diesel Company, supra, Brewton Fashions Inc, a Division of Judy Bond, 145 NLRB 99. 59 For a resume of such cases, see Fabri-Tek Incorporated, 148 NLRB 1623 , footnote 10. KAYSER-ROTH HOSIERY CO. tise or promote other forms of union activity, particularly organization of employees." I find, without regard to Toole's purpose or motivation (as distinguished from his right) in "wearing" the subject envelope in the plant,58 that the envelope advertised to anyone interested the fact that through the efforts of the Union Toole had received his backpay check from the Respondent, and that the en- velope falls within the union insignia category. Having thus concluded, the remaining issue concerns itself with the question of whether the Respondent's directive to Toole was necessary in order to maintain production or employee discipline. In this regard, the Respondent does not appear to claim that Toole's action interfered with production. The evidence, in fact, reveals that Toole's job as machine fixer entailed no production quota, and that the Respondent did not check the produc- tion of any employee as a result of this incident.. With respect to the necessity of maintaining employee discipline, Roberson testified that the reason he directed Toole either to turn the envelope around or to put it in his toolbox was because he was causing a disturbance, and that employees were stopping work, and laughing and talking. However, when questioned on this, Roberson named but two employees who had stopped their work to talk with Toole. As to one, Roberson gave no particulars, and, as to the other, he testified it lasted for a few minutes. Roberson's bare testimonial assertion as to em- ployees laughing and talking stands uncorroborated by any credible record evidence. Toole's supervisor, Troy Ward, although appearing as a witness for the Respond- ent, was not questioned on this matter. This, coupled with the fact that it does not appear that any employee was reprimanded or even approached by the Respondent for talking and laughing with Toole, would indicate that such activity was minimal. In view of these circumstances, including the message conveyed on the envelope, which, upon analysis, I deem not to be inherently disruptive or "calculated to defame or insult other employees,59 I find totally lacking the type of evidence required to support a finding of special cir- cumstances which would permit the Respondent's inter- ference with Toole's right to engage in such protected activity.60 Therefore, I find that by carrying the envelope with the words "UNION MONEY- BACKPAY CHECK," in his pocket while at work, Kenneth Toole was engaging in a protected activity, that by ordering him to turn it around or to put it in his toolbox the Respondent unlawfully interfered with his right to engage in such ac- tivity in violation of Section 8(a)(1) of the Act, and that, in discharging him for refusing to obey the directive, the Respondent violated Section 8(a)(3) and (1) of the Act. 58 Tune after time Toole gave evasive and then conflicting reasons for writing the words on the envelope , for placing the envelope in his pocket, and finally, for not turning it around or removing it as requested by Rober- son. With respect to his purpose in putting the envelope, assertedly still containing the check, in his pocket, Toole, at various points of time, testified that he had no purpose , that he did not want to leave it at home, that he did not want to mess it up, and that he did not want to lose it Not- withstanding Toole's testimonial denial , however, and while not pertinent to the issue, I find that in carrying the envelope in his pocket while at work, Toole did, in fact, want his fellow employees to read the quoted words, that he did intend thereby to advertise his victory over the Com- pany, and that his action in this regard was in great measure at least prompted by a desire to laud it over the Company. 16. Peggy Wright 405 Peggy Wright was first employed by the Respondent in March 1963, and put to work in the sewing department where she worked on the second shift until April 1964, and then on the first shift under Supervisor Rhoda Housley until her discharge on October 5, 1964. Wright testified that in early September, upon returning from a 3- day sick leave, Supervisor Parker Bean attempted to per- suade her to take at least "a 30-day leave." After reiterat- ing his suggestion, Wright asked him if his suggestion was based upon the fact that she was active in the Union, giv- ing him an opportunity to not hire her back. According to Wright, Bean merely repeated his suggestion a number of times. When Wright asked to go to work, however, Bean told her to do so, but to think about it.61 According to Wright, from that point on, "just about everytime" she went to the restroom she was followed by Housley or her assistant, Ann Thurman, and that, for the first time, she started getting work back to do over. According to Wright's version, on Monday, October 5, following her appearance but not her testimony as a prospective witness for the Union at the courthouse in the representation proceeding the Friday before, along with a number of others, Wright was watched all day by Housley and, on and off during the day, she had a slight nosebleed as a result of a lingering cold, necessitating her visiting the ladies restroom.62 About 2:15 p.m., it oc- curred again, so Wright put a kleenex to her nose and went to the restroom. She subsequently returned to her worktable, found that she had no work, and walked over to the buggy and bent over to pick up some work. While so positioned, Wright testified that it seemed like her nose commenced to bleed again, so, in order to prevent messing up the work in the buggy, she grabbed an "extra" leotard leg that was on the side of the cart and placed it to her nose while she went to the water fountain to get it wet. At the fountain, having wet the leg, Wright held it to her nose "and sort of blowed a little bit on it ...." She noticed that her nose was not bleeding, and then took the leg back around her table and put it in the wastepaper can, proceeding then to go about her work. At this point, Floorlady Rhoda Housley came up and retrieved it from the trash can and took it into the office. Shortly thereafter, according to Wright, Housley came after her and told her she was wanted in the office. Upon entering the office, in the presence of Everett Roberson and Housley, and with the leotard leg laying on his desk, Supervisor Parker Bean asked Wright what she did that for, to which Wright protested that it was a mistake and could not have been helped. Wright explained that she ii Murphy Diesel Corp., supra. 6° See Fabri-Tek Incorporated, supra; cf. Standard Fittings Co., 133 NLRB 928. 61 Although Bean did not testify in this proceeding, Wright admitted to quite a lot of illness and to the fact that she had been forced to take a number of leaves of absence during her employment with the Respondent. Such would negate the inference otherwise in be drawn from Wright's testimony as to Bean's suggestion. 62 Wright testified that she had been to the restroom about five times because of this, but had not apprised her floorlady Housley of her problem Wright's testimony as to one such occasion is corroborated to the extent that Frances Hill testified that she found Wright in the restroom with a kleenex held to her nose. 308-926 0--70-27 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had used the extra leg in order to save the work that was in the buggy. Bean asked Wright if she made it a habit to throw things away, to which Wright replied that she would if she thought it necessary to keep from spreading germs, and that she did not want to slit the leg and send it on through to the other girls. When Bean asked her if there were any kleenex in the wastepaper can proving that her nose had been bleeding, Wright informed him that each time her nose had bled she had gone to the restroom, carrying the kleenex in her hand. Wright then apologized, stating that she had not intended to destroy company property. At this point according to Wright, Roberson spoke for the first time, asking Wright where she got the socks she was wearing. Wright, indignant over the implication, replied that she considered that her own personal business. Roberson then said, "Peggy, did you buy them in the commissary? Are you telling me it is not any of my business?" When Wright answered that she felt like it was her own business, Roberson told Housley to take Wright upstairs and to pay her off, that he had had enough. Housley then proceeded to take Wright upstairs, and, while Housley was in the office, Bean came by and told Wright that he was very sorry this had to happen, that he had nothing to do with it. Wright was then paid off. According to Wright, the following day she called to ask Roberson for a written reference for another job, which Roberson refused, but told Wright that he would give her a good reference if she had the prospective com- pany call him. When Roberson told Wright that he con- sidered her a good worker, causing her to ask why he fired her then, Roberson said "for other reasons." Wright asked if it were because of her union activities or because she appeared for the Union on Friday, to which Roberson said, "No, there were too many there to do that." Then Roberson allegedly said, "How do I know you don't have Benton or Rainey (union representatives) listening to this conversation on the telephone?"63 Factually, there is a dispute as to two matters, one con- cerning the leotard leg, and the other, with respect to the conversation in Roberson's office. As to the former, Housley, who denied watching Wright all during the day, testified that the work buggy was full and that Wright did not lean over into it, that Wright did not use an "extra" leg,64 but rather, pulled a first-quality leg from a dozen tied together on top of the buggy, and that when Wright walked over to the water fountain, she did not wet the leg. As to the conversation in Roberson's office, Housley testified that, having reported Wright's unusual conduct and showing the leg to Parker Bean who was in the office, Bean told her to summon Wright. When Wright and Housley entered, Roberson looked up momentarily and then continuea with work at his desk, and remained busy with the work until the end of the conversation among Wright, Bean, and Housley. According to Housley, when Bean asked Wright why she blew her nose on the leotard leg, Wright answered, because her nose was bleeding. When Housley told Wright that she could check the waste can at her desk to see if it contained tissues with blood on them, Wright allegedly changed her story, say- ing that her nose had bled only in the restroom. Wright told Bean that she had used the leg because she had run out of tissues at her table. Housley, who admittedly did not recall too much of the conversation, did testify that Wright could have apologized, as so testified by Wright, for having used the leg to blow her nose. I find that Wright did so. Roberson testified that on this occasion, while he worked on other matters at his desk, Bean and Housley talked with Wright for about 30 minutes concerning the incident. During this period he heard some of the argument, and that Wright changed her story on a couple of matters with respect to whether her nose had been bleeding at her work station and as to the number of times she had gone to the restroom. According to Roberson, when Wright replied to Bean that there were no tissues available, and Bean asked her why she picked a first quality leotard leg from within a dozen to blow her nose on, Wright an- swered that she had to have something. Roberson testified that Bean asked Wright why she had not re- ported her nosebleed and she replied that she did not think it was important. According to Roberson, finally, after 25 or 30 minutes of the talk among Wright, Bean, and Housley he was asked by Bean what he thought about the situation. At that Roberson turned to look at Wright and noticed that she was wearing a pair of greige socks.65 Assertedly because of theft reports at the plant, Roberson immediately asked Wright where she got the socks she was wearing, to which Wright at once replied, "Well, I don't consider that any of your business." Roberson retorted that "It might be some of my business because we don't sell those socks anywhere." Wright as- sertedly replied, "Well, I still don't consider it any of your business where I got these socks," at which point Rober- son instructed that Wright be paid off, that he was not going to listen to any more .61; A resolution of this conflict in testimony is not easy, for I feel all three of the principals to some degree colored their testimony to better support their case. Neither Wright's story nor Housley's version of the use of the leotard leg rings completely true. Notwithstanding Housley's testimony to the contrary, it is conceivable that Housley could have been mistaken as to what she saw. In any event, I find that Wright did have trouble on this date, that she thought her nose was about to bleed and for that reason she grabbed a leotard leg on top of the buggy, and that she used it at the water fountain for the purpose of blowing her nose. As to the conversation in Roberson's office, again I believe that the facts are not exactly as Wright, on one hand, and Housley and Roberson, on the other, testified, and herein lies the key to the crucial issue. Roberson, the sole principal in the decision to discharge Wright, testified, when called as a witness early in the hearing by counsel for the General Counsel, that Wright 63 Roberson was not questioned on this telephone call from Wright, and therefore Wright's testimony in this regard remains unrefuted. 64 Record testimony indicates that on occasion an "extra" is found in the buggy and is draped over the side , and also that occasionally "extras" have been used for throw-away purposes. 65 These are unfinished socks in the greige process, and are not sold on the market. 66 The only dispute here between the testimony of Wright and Rober- son is the phraseology of Wright's reply Wright testified that she con- sidered it her personal business, whereas Roberson, corroborated by Housley, testified that Wright said she did not consider it any of his busi- ness. KAYSER-ROTH HOSIERY CO. was terminated "for taking a first-quality leotard leg and blowing her nose on it." Later in the hearing, Roberson expanded on this, testifying that Wright was discharged "for poor attitude and willful destroying company proper- ty.,, As to the willful destruction of company property, if Roberson considered the charge of throwing one leotard leg, extra or not, into a trash can after this use of such magnitude as to warrant the termination of a good worker,67 it seems incongruous that for one-half hour dur- ing the discussion concerning Wright's use of the leotard leg, Roberson continued to work on other matters, said not one word to anyone, and in fact did not even look up from his desk until Bean, his subordinate, asked him what he thought about it.68 As to Wright's poor attitude, not- withstanding Roberson's attempt to show through his testimony that Wright had a bad record, the only credible evidence reveals that such was confined to a reprimand during the previous August for talking to another em- ployee away from her station. As to her immediate at- titude, that is, at the time of, and during, the conversation in question, again it seems strange, certainly contrary to probability, that, in spite of Roberson's testimony that Wright was talking in a "louder than normal" voice, that she was abrupt, and that "her face was blushed, red ..." when he finally looked at Wright, he had not one time, during the one-half hour conversation of which he took no part, concerned himself with Wright's "attitude." This leaves the 20-second colloquy between Wright and Roberson just before he discharged her. Whether one fords the form of Wright's reply to have been as testified to by Wright or by Roberson, I am certain that Wright displayed emotion and that her reply irritated Roberson and, under the circumstances, feel that he was entitled to a civil answer. Nevertheless, to find that such warranted a permanent dismissal from the Respondent would require a disregard for the total factual situation. Thus, Wright, along with her husband, was one of the earlier union adherents and one of those who signed a union letter in April apprising the Respondent of her union sen- timents. As heretofore noted under a discussion of 8(a)(1) activity, about the same time Wright was interrogated at length by Supervisor Bean and Roberson in the former's office. Notwithstanding the fact, as elicited by counsel for the Respondent, that Wright was but one of a very large number of plant employees attending the hearing at the courthouse the previous Friday concerning the forthcom- ing election, it properly can be inferred that her presence at such event was fresh in Roberson's mind at the conclu- sion of the discharge conversation on Monday, October 5. Under all of the circumstances, I am of opinion, and so find,'that leggy Wright was discharged by the Respond- ent on October 5, 1964, at least in part because of her union activity, and that the Respondent thereby violated Section 8(a)(3) and (1) of the Act 17. Betty Stout Betty Stout was hired on April 28, 1964, as a preboarder in the boarding room on the third shift under Supervisor Roy Stinnett. After commencing her em- 67 Wright's uncontroverted testimony reflects that on one occasion Bean, and on another, Roberson, told her that she was considered a good worker. 407 ployment with the Respondent, Stout signed a union card and attended one union meeting. Upon returning from a plantwide vacation on July 5, Stout was stung by a wasp and was absent from work for about a week. Later in July she hurt her back when she slipped and fell on the job, but without telling anyone she continued to work until August 17, when it hurt so much she was forced into taking sick leave. Stout returned from sick leave on September 24 or thereabouts, and worked until the night of Friday, October 2. On this night, according to the testimony of Stout, she hurt her finger changing boards on her machine and it became very painful. She went to her supervisor, Stin- nett, and told him, "I mashed my finger and I couldn't raise my arm because the pain was so bad in my back that I had to go home, that I was so nervous that I couldn't stay at work." Stinnett assertedly told her to rest a while and perhaps she would feel better. According to Stout she rested for a few minutes and then went back to her work, but found that she could not get her arms up to put the tights on over the boards. Stout then went back to Stin- nett and told him to make out her production tickets, which he did. Stout then asked for and received permis- sion to telephone her transportation, and, when it arrived, she left and went home. Stout testified that the following Sunday, both Saturday and Sunday being nonworkdays, Charlie Kelley, first- shift supervisor, called her and told her that Stinnett had messed her up, that he had reported that she had refused to operate a machine because it had eight boards on it, and that she would have to see Earl Barger, division su- perintendent, on Monday, before she could return to work. Kelley, who, according to the inference to be drawn from Stout's testimony, appears to have been a friend of Stout, told her that he wished she had told him her troubles so that-he could have straightened it out. On cross-examination, Stout admitted that she did not men- tion her hurt finger to Kelley until the very end of the telephone conversation. On Monday, according to Stout, she went to the recep- tionist's office, and told the receptionist that she wanted to see Earl Barger. Shortly Barger appeared, asked her if she were Betty Stout, and asked her what she wanted to see him about. Stout told Barger that she wanted to see him about getting changed to the second shift. At some point, Stout, having noted earlier that the receptionist had her pay, asked Barger why her money had been prepared, and Barger told her that Stinnett had turned in a slip on her, saying that she refused to operate the machine to which she was assigned. Stout denied this to be the case, telling Barger that she had hurt her finger and was sick. Barger told her that the machine had to be run, and Stout suggested that they give that machine to someone else, and put her on a different shift. Stout, at this, apprised Barger of several complaints she had against Stinnett. Barger told Stout that he thought that she had returned to work too soon after her illness and that she needed to stay out longer. Barger told Stout to leave it like that for the time being and he would call her and let her know what he could do. Stout admitted on cross-examination that Barger also told her that he would have to let her go for a while and that maybe he could help her later. Stout went 68 When questioned at length on this matter, Roberson contradicted his earlier testimony wherein he indicated that he had asked her one or two questions on this matter. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD home and rested for 2 weeks, and then called Barger, about October 19, and told him that she was ready to come back to work. Barger replied that he would just have to leave it like it was, but that he would call her the next afternoon at 3 p.m. Barger never did. Contrary to the testimony of Stout, set forth above, the combined testimony of Stinnett and Barger indicates that, on the night of October 2, Stout, who had a poor at- tendance record because of her illness, came into his of- fice and told him that she wanted him to put four more boards on her machine, raising the total number of boards from 8 to 12 on each end of the machine,69 thereby in- creasing the machines productivity. Stinnett told her that he could not do that, that the machine only required a total of 16, counting both ends, and that there was no floater, a third man for that particular machine. When Stout protested that, "she just couldn't pull them eight boards and that it just tore her to pieces on the inside and caused her to jerk the equipment," Stinnett told her that that was the only machine he had for her that night. Stout told him that she would come in Monday morning and talk with Barger to see if he had something else for her to do. At this point Stinnett told Stout that if she did not pull the tights on her machine that night , Barger would want to see her Monday morning. At that, about 1 o'clock Saturday morning, Stout said she could not pull them, that she was going home. Stinnett replied that if she felt that way, for her to go home. Stinnett emphatically denied that Stout had mentioned having hurt her finger, that he told her to rest a while , that Stout asked him to fix her production tickets that night , or that he gave her permis- sion to go home, but testified that he did permit her to use the telephone. The following morning, Stinnett told Barger about the incident, reporting that Stout had walked off the job because she did not want to pull the work that he had as- signed to her, the same work that other shifts had per- formed. Barger told him to discharge her. Supervisor Bill Ewing filled out a separation slip and Stinnett signed it, the slip indicating that Stout was terminated because she refused to operate her machine . The following Monday, according to the credited testimony of Barger , Stout went by his office and asked to talk with him about being discharged. When Barger told her why she was being discharged, Stout then told him about hurting her finger, and in answer to Barger's question, told him that she had not mentioned the finger to Stinnett. Stout then asked for another job and Barger told her that they did not have anything for her at that time. I credit Barger, who at the time of the hearing, was no longer employed in any capacity by the Respondent, and Stinnett, an impressive witness, over Stout who repu- diated a portion of her affidavit and was evasive, con- tradictory , and lacking in candor.70 Kelley was not questioned on this matter. The General Counsel asserts that Stout was discharged on the night in question because of her union activities. 69 Many of the other machines were set up to run 12 boards 70 Stout testified that she liked her supervisor , Stinnett, notwithstanding her admission that she had told Supervisor Charlie Kelley that Stinnett had falsely accused her of taking production tickets from someone else, that "lots of times" Stinnett walked by and twisted her work on purpose so that she could not straighten it out , and notwithstanding her testimony that she wanted to find someone who would overrule Stinnett and that she went to see Barger about getting off Stinnett's shift 71 Stout's unrefuted testimony on this point does not disclose the con- The Respondent contends that Stout refused to operate her machine and quit. I am of the opinion that union ac- tivity played no part in this person's discharge. Apart from her having signed a card and attended one meeting at some unspecified time, but presumably back in April or May after her hiring, the only credible evidence involving a supervisor's mention of the Union to her is the time on September 24, when Stinnett asked her while she was working whether she had been talking to the girls about the Union, and she had replied in the negative .71 Stout im- pressed me as being a very insecure and unstable person, as well as one who was not too well ,72 and I feel that her decision to walk off a job on October 2, was brought about mainly because of her many difficulties with her su- pervisor, Stinnett , and the fact, as she later admitted, that she did not like the machine or the shift. Although one of three doctor's certificates admitted into evidence in- dicates that Stout had reported to the doctor on October 3 that she had hurt her finger the night before and that it felt like an electrical shock, the certificate, although reflecting that the finger was "ok now," in no way in- dicates that the doctor treated the finger, or anything other than Stout's claim of injury. All in all, considering Stout's history and unimpressive record as an employee with the Company, on the credible evidence pertaining to the October 2 incident, an inference of discriminatory motivation based upon her union activity is hardly war- ranted. I find the General Counsel has failed to prove by a preponderance of the credible evidence that Betty Stout was discharged in violation of Section 8(a)(3) and (1) of the Act. 73 18. Garland Stinnett Garland Stinnett was hired by the Respondent' in March 1961 as a preboarder on the third shift under Foreman Charlie Kelley . He voluntarily terminated his employment during the spring of 1962, and returned again in August 1962, from which point he worked as a preboarder on the 3 to 11 p.m. second shift under Super- visor Robert Wilkey, and, just before his discharge on October 12 , 1964, Supervisor Verdman Wells . Stinnett was active in the union movement, having signed a union card, a union letter sent to the Respondent , and having at- tended meetings and solicited other employees to join the Union. Approximately at 4:30 p.m. on Monday, October 12, while working on No. 2 preboarder machine, Stinnett heard his name called for the telephone. Believing it to be a call pertaining to his baby who had been ill with in- testinal virus and under treatment with an out-of-town doctor, Stinnett picked up the telephone and found it to be a call from a friend who had one of Stinnett's bird dogs on trial which had become sick. Upon telling his friend that he would pick the dog up the following day, Stinnett hung up the telephone and returned to his machine. Su- pervisor Verdman Wells, who had been out of the room text of the remark, that is, whether or not the question had reference to talk while she was operating her machine. 72 Stout testified that there were many nights on the job when she was "just there in a daze," that on these occasions , upon reflection , she did not know how she had done her work, and that this occurred down to and in- cluding thenight of October 2. 73 A constructive discharge was not alleged, nor do I find record evidence in its support. KAYSER-ROTH HOSIERY CO. 409 when the telephone call came in but had returned while Stinnett was talking on the telephone , was waiting for him at his machine and told him, "You are fired." According to Stinnett, when he asked the reason, Wells said, for talk- ing on the telephone. Stinnett asked Wells , what if it had been an emergency , and Wells replied that that would have been all right. When Stinnett asked him how he knew that it was not an emergency , that Wells had not asked him, Wells merely directed Stinnett to come up to the office, telling him he would write up his time.74 In support of the Company's position that Stinnett was discharged for violation of company rules, culminating with his use of the supervisor's phone in violation of in- structions and rules, Wells testified that during the 2- week period that he supervised Stinnett before the latter's discharge it had been reported to him by an em- ployee designated to handle telephone calls in his absence that Stinnett used the company telephone in the boarding room several times while he was out to lunch . 75 Wells testified that on Monday , October 5, his first day on the job, Stinnett violated the smoking area rule, which allows but two employees in the break area at one time. On this occasion, two men were already in the smoking area ,when Stinnett walked in and lighted a cigarette. Wells, who was within a few feet of the area, witnessed this, and told Stinnett he was the third man, for him to return to his machine. Stinnett put out his cigarette and went back to his area. He received a written reprimand for this. On the following Wednesday , October 7, Stinnett was found over in the autoboard department talking with another employee. This incident, which resulted in another writ- ten reprimand, caused Wells to apprise Stinnett that he was not supposed to visit people at their work, that such was against the rules, and for him to return to his machine, which he did. The following night, October 8, Stinnett, in walking by, "smacked one of the pre-boar- ders," resulting in a loud racket, "attracting everybody's attention in the boarding room."76 Thus, on the afternoon of Monday , October 12, when he returned to the boarding room after having been out for a few minutes and saw Stinnett on the telephone, Wells waited for about 2 minutes at Stinnett's machine until Stinnett was off the telephone and then told him to get his belongings and to come to the office. In the office, Wells told Stinnett that he had gone about as far as he could go with him, adverting to the fact that Stinnett had broken the rules concerning the smoking room and bothering other people on the job. Because the office force had left for the day, Wells told Stinnett to come back in the morning and get his check. Around 7 p.m., Stinn called and said he would like to get his check that night. Wells, who had apprised Superintendent Earl Barger in the meantime of his action , told Stinnett he could arrange it and did. Stinnett stopped by a little later, received his pay, but would not accept a separation slip which stated that he had been discharged "for using the telephone without permission."77 According to Wells, this was the last conversation between Stinnett and Wells.711 As to pros and cons surrounding his action , Wells ad- mitted that he did not know whether Stinnett had initiated the telephone call or had been called to the phone, that he did not attempt to find out, either from Stinnett or from Leonard Bradey , the employee whom Wells had designated to answer the phone in his absence , that he did not know, nor did he inquire of Stinnett , whether the can had been of an emergency nature, and that he fired Stin- nett because he found him using the phone without his permission. Wells testified that he was a new supervisor, that he learned the rules as posted from the bulletin board and that he enforced them without exception. Wells further testified that employees were supposed to get per- mission to use the telephone anytime, whether to make a call or to receive an incoming call. Apparently , in addition to the requirement of receiving permission , such use of the telephone was limited to emergencies . In this regard, Wells admitted that, had he been in the room , he would have received the call, and had it been an emergency he would have given Stinnett permission to accept the call. Thus, the real crux of the matter appears to have been the lack of permission, the fact that Stinnett was on the phone, emergency or otherwise , without having Wells' permission. A perusal of the posted rule governing the use of company telephones mentions nothing concerning permission, merely stating that such phones are limited to company business and that incoming messages will be delivered.79 Thus, in honoring the unwritten exception to the rule as to emergency situations , it would appear that Wells established his own requirement that his permis- sion was necessary before the phone could be used. Whether or not Stinnett was aware of this, appears to be of no moment, for Stinnett admitted that he was aware of the rule that employees could not use the telephone un- less it were an emergency , that he had been apprised of it by his former supervisor , Wilkey, and that the rule had been in effect for 5 or 6 months. 80 Under all of the circumstances , however, particularly, the fact that Wells was not in the room at the moment that the call came in, and accordingly , could not have evalu- at.-d the nature of the call and then refused permission for Stinnett to receive it, it would seem that, before terminat- ing Stinnett for his unauthorized use of the phone, Wells at least would have asked Stinnett whether the call had been of an emergency nature . Additionally, Wells 74 Wells placed the latter part of this conversation at a later time. 75 Notwithstanding Wells' recollection that he supervised Stinnett for 2 weeks, company records indicate that Wells replaced Wilkey as second- shift supervisor on October 5, just 1 week before Stmnett 's discharge on October 12. 76 The preboarder here referred to is not an individual , but rather a machine used by boarding room employees. 49 According to Wells , it was during this conversation that Stinnett asked, "you didn't know but what that was an emergency , did you?" When Wells replied, "No, sir, I didn't," Stinnett said, "My mother could have been in the hospital." To this, Wells replied, "Yes , she could have. I didn't know that," 46 Stinnett denied or attempted to minimize the earlier rule infractions. I do not credit his testimony where it conflicts with that of Wells , or with any other credited testimony . Stinnett did not impress me -as being completely honest while testifying. In addition to repudiating portions of his pretrial affidavit, Stinnett was evasive time after time, obviously at- tempting to slant the facts of his case in his favor. 90 This rule reads as follows. 7 TELEPHONES -The use of the company telephone is limited to company business Incoming messages will be delivered. 80 Stinnett repudiated his pretrial affidavit in this regard, stating therein that no one had ever said anything to him up to the date of his discharge about using the telephone. Furthermore, the evidence reveals that the posted rule had been in effect for a number of years . In this regard, I do not credit the testimony of employee Woodrow Tumlin that the telephone was used by employees on an average of 2 or 3 dozen times a day. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that he had leaned over backwards to try to help Stinnett and to straighten him out, referring to his break- ing rules and horseplay, and that the use of the phone on this occasion without permission was the straw that broke the camel's back. Admitting, however, that he would not have discharged Stinnett had it not been for his use of the phone on this occasion, it strikes me as somewhat incon- gruous that Wells gave up his attempt to help straighten Stinnett out so suddenly without ascertaining whether the import of the rule had been broken. As opposed to an adverse inference to be drawn solely on the implausibility of Wells' handling of the telephone incident, however, other factors militate against such an inference. For, in the absence of any evidence that Wells in replacing Supervisor Wilkey on October 5, was out to get Stinnett from the beginning, it is difficult to impute to Wells a discriminatory motive behind his decision to discharge Stinnett I week later. Thus, Wells was new to the company, having been employed as a supervisor only 1 week before, and, it is unlikely that he would have been made aware of Stinnett's union sentiments in that short time, except perhaps, through one of his co-supervisors. Even in this event, that Stinnett was singled out as a union adherent is doubtful, for Stinnett does not appear to have been any more active than others in the boarding room.81 Apart from the question of knowledge as to Stin- nett's union activity, there is not a scintilla of evidence revealing union animus on the part of Wells. Neither the complaint nor the evidence charges him with any anti- union conduct or expressions. On the other hand, on the first 5 days of Wells' supervision, Stinnett engaged in rule infractions on at least four occasions, two of which resulted in written reprimands. Thus, keeping in mind two well-established principles relevant here. that a trier of fact may not substitute his judgment for that of the Com- pany as to the extent of the disciplinary action taken'82 and that an employer may discharge an employee for any reason or for no reason so long as it is not prompted by union considerations'83 I find, under all of these circum- stances, that the General Counsel has not proved by a preponderance of the credible evidence that Stinnett was discharged in violation of Section 8(a)(3) and (1) of the Act. 19 James W Suttles With the exception of a 6-month period in 1956, James Suttles worked for the Respondent in the long-fold rack department from April 1954 until his discharge on November 23, 1964, allegedly for carelessly ramming his cart into another employee. Suttles' Job as a service boy in putting finished goods into racks required, at least dur- ing the last 7 years, that he push a 4-wheel cart or buggy. Suttles was active in the Union, having signed a union card, attended union meetings , appeared but did not testi- fy as a witness at the October representation hearing, and assisted the Union in checking the payroll 2 days before the November 18 election. The facts reveal that on August 12, 1964, as employee Euna Everett was returning to her work station from the restroom and walking down the main aisle, Suttles, push- ing a buggy, came from a side aisle and made a turn toward her. Notwithstanding that Suttles saw Everett from as far away as 8 feet, he pushed his buggy into her, forcing the left side of her face against one of the racks separating the aisles 84 Everett told Suttles that he had hurt her, as, indeed he had, and received in return a non- commital "huh." The following morning her face became swollen. She apprised Supervisor Margie Thomas of the incident, and Thomas, in turn, called Division Superin- tendent Earl Barger to look at it. Barger instructed Everett to go to a doctor, which she did, where she received medical treatment As a result of this incident, Barger verbally admonished Suttles to be more careful and to respect the other employees, and caused a written reprimand to be placed in his file On Friday, November 20, employee Rose Crumpler, who works in the sample department but helps out in the racks, spilled some work from her buggy on the floor as she was leaving the main aisle. While in the process of stooping over and picking it up, brushing it off, and laying it back on her buggy, Suttles, who was entering the main aisle, ran his buggy into her.85 Crumpler, who was ir- ritated but not hurt, asked Suttles what he meant by hitting her, and then she kicked his buggy aside. Crumpler, who 2 or 3 weeks before, had been hit on the back of the head by a board atop of Suttles' buggy as she was backing out between racks with her buggy full of work, immediately reported this incident to her super- visor, Thomas, telling her as well about the earlier in- 86 cident and saying that it had better not happen again. Thomas' only reply appears to have been that perhaps Suttles was sick. On Saturday morning, Barger, who had been apprised of the Crumpler-Suttles incident by his production manager, together with his assistant, Bill Ewing, sought out Crumpler at the racks. Barger asked her if it were true that Suttles had bumped into her with his buggy and Crumpler said that it was Crumpler told them about the incident, and also about the earlier incident involving Sut- tles. In reply to Barger's question as to why she had not reported the first incident , Crumpler said that she did not want to cause Suttles any trouble, that she wanted to give him a chance as she did not think that he really meant to hit her the first time The following Monday, November 23, Barger sent for Supervisor Thomas and questioned her about the Crumpler incident of November 20 as well as the earlier one in August involving Euna Everett. At the conclusion "' In this regard , although there is no question but that t.,e Respondent was made aware of Stinnett's union activity the prior April , there is no evidence, indeed, Stinnett's testimony offered none , that any supervisor at any time during the intervening months made mention of the Union to him 12 See N L R B v Ace Comb Company, et tit, 342 F 2d 841 (C A 8) See also N L R B v Montgomery Ward Co , 157 F 2d 486.490 (C A 8), and Indiana Metal Products Corporation v N L R B, 202 F 2d 613 (CA 7), enfg 100 NLRB 1040 "' N L R B v Ace Comb Company et ul supra, N L R B v Condensor Corporation of America, 128 F 2d 67 (( A 3), Associated Press v N L R B, 301 U S 103 See also Gaynor News Company, Inc v NLRB,347US 17 14 Whether or not Suttles intentionally bumped Everett on this occa- sion, as she claimed , I deem it unnecessary to determine 15 Suttles had work stacked quite high on top of his buggy , but, accord- ing to Crumpler, could have seen her as she was at the side of her buggy, the latter parked in the middle of the narrow aisle 86 As to the earlier incident, nothing passed between Crumpler and Sut- ties at the time, and Crumpler did not report it KAYSER-ROTH HOSIERY CO. 411 of his conversation, Barger had Suttles report to his office where Suttles was told that he was discharged.87 Suttles' version of the Crumpler bumping incident is that the incident happened about 3 weeks before his discharge and that, as he approached the racks pushing a chin-high load, he looked on both sides, saw that his vi- sion was clear, and started in between the racks. As he started in, Crumpler stepped out on the side of the aisle and he "brushed along her dress with the buggy." Suttles asked if he had hurt her, and received a "No" reply. Sut- tles testified that he heard nothing of the incident until. Barger told him on Monday, November 23, that he was not going to put up with it any more, and discharged him. Suttles, who testified that he frequently ran into em- ployees accidentally with his buggy, denied that he had ever, at any time, been warned, reprimanded, or talked to about bumping into other employees. It is absolutely im- possible, however, to credit any of the testimony offered by Suttles. He repudiated a portion of his pretrial af- fidavit, evaded, time after time, straightforward questions, remembered very little except that which helped his case, and, in effect, refused to answer simple questions put to him on cross-examination. Even in reply to questions by the Trial Examiner, Suttles' answers were not clear. Whether Suttles was an outright, dishonest wit- ness or merely a thoroughly confused witness, it is im- posssible to even decipher a nonconflicting story from his testimony. Accordingly, except for matters pertaining to his employment and to his union activities, I refuse to credit his testimony in any respect and in no way do I rely upon it in making my findings of fact or conclusions of law. Contrary to the position asserted by the General Coun- sel, the Respondent contends that Suttles was discharged for carelessly bumping into Crumpler. The facts tending to support such a position are, in my opinion, weak in- deed. Thus, the decision to terminate Suttles was that of Barger. Barger, by his own admission, was aware of but two "bumping incidents" involving Suttles, the Everett incident on August 12, and the Crumpler incident on November 20, for which he was discharged.88 While the former resulted in serious consequences, undoubtedly warranting the reprimand, the Crumpler matter on November 20 appears to have been of a minor character. Crumpler was neither hurt nor knocked down, and, even based upon Crumpler's credited testimony, there remains some question as to the extent to which Stuttles might have avoided the collision. In any event, Supervisor Thomas did not consider it of such moment as to warrant her reporting it to her superiors. While there is some question as to the extent to which employees bumped into others with buggies,89 as Barger was forced to agree, it undoubtedly happened from time to time, with no evidence of disciplinary repercussion. Thus, under such circumstances, a summary discharge after 10 years of em- ployment hardly seems warranted. Although Barger was not employed by the Company during the height of the Union's campaign during the previous spring, he was division superintendent when Suttles requested permis- sion to be off work to attend the representation hearing on October 2, and, although Suttles did not testify, his presence was observed by Barger. Again on November 16, Barger was aware that Suttles had requested authority to be off in order that he might attend the courthouse proceeding at which the payroll was checked preparatory to holding the forthcoming election. Based upon the record as a whole, I am persuaded, and so find, that Suttles' union activities played a part in the Respondent's decision to terminate him on November 23, and that in effectuating his discharge, the Respondent violated Section 8(a)(3) and (1) of the Act. 20. Conway G. Ballard, Jr. Conway Ballard, known as Danny Ballard, was hired by the Respondent in July 1961, and worked in the board- ing room as a tights bagger on the first shift until his discharge on December 9, 1964. Ballard signed a union card, talked to other employees about signing, and at- tended one union meeting the previous spring. Commencing several months prior to Ballard's discharge, Bill Ewing, then assistant superintendent of the finishing division, received several reports from su- pervisors that Ballard, from time to time, upon working overtime, was found away from his work station and talk- ing with a second-shift employee, one Martha Fugate, an autoboarder. During this period, Verdman Wells, second- shift supervisor of the boarding ; room,, twice found it necessary to run Ballard out of the autoboarder alley, ad- monishing him for leaving his machine, for carrying away Fugate's work (which was not his responsibility), for talk- ing with her, and directing him to stay away from her. When, on the second occasion, which occurred im- mediately prior to Fugate's transfer to the third shift and about 5 weeks before Ballard's discharge, Ballard chal- lenged Wells' supervisory authority over him, Wells let Ballard know that any time that he worked over into the second shift, Ballard was under his supervision. On this occasion, Ballard went to Ewing and asked him to speak to Wells about a lack of authority over him, at which Ewing apprised Ballard that any time that he worked overtime and into the second shift, Wells was his super- visor. About this same time, on October 29, Division Su- perintendent Earl Barger, having received reports that Ballard had been found in the autoboard department, ver- bally reprimanded Ballard, telling him that he had no busi- ness being there talking and bothering other employees. Shortly thereafter, Fugate was transferred to the third shift, which shift ended at 7 a.m. just as the first shift commenced. Coinciding with this change, Ballard started requesting permission to report for work 30 minutes early, on the ground that he could leave 30 minutes early in the afternoon in order to take his pregnant wife to the doctor. On some six occasions before his discharge he asked for an was granted by Ewing or Barger permission to come in early. Apparently Ballard continued his habit, however, of conversing with Martha Fugate when report- ing in early, for Supervisor Leon Snead, who had replaced Charlie Kelley as first-shift supervisor on November 20, reported to Ewing that Ballard was using 87 The above factual findings are based upon the combined, credited testimony of Crumpler, Thomas, Everett, and Barger, all of whom testified in a most honest and forthright manner. 89 The record shows that a second reprimand, rather strongly worded, was issued by Barger, dated October 29, involving bumping by Suttles. However, the reprimand contains no names and Barger was unable to re- call any of the circumstances surrounding this reprimand. Barger did testi- fy, however, that he did not believe that he talked to Suttles on this occa- sion. 89 I do not credit Suttles' testimony that this happened most every day or the testimony of employee Danny Ballard to the effect that it happens "maybe once a week." 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the excuse of coming in early in order to talk with Fugate. Approximately a week or two before his discharge, Ewing told Ballard that he was not to report in early un- less specifically instructed to do so, that his clocking in early without permission could cause the Company trou- ble. Ewing further warned Ballard about doing his work and not wasting time on those occasions when he was al- lowed to report early. Early on the morning of December 9, about 6:25 a.m., Ballard called the mill and Ewing answered the telephone in the boarding room. Ballard asked Ewing if someone would open the door for him, that he was coming to work early. Ewing asked Ballard his reason for reporting early, to which Ballard laughed and said, "Well, I'm not in there yet," and hung up.90 About 6:30 a.m. Ballard arrived at the plant, found the door unlocked, and went in and punched his timeclock.91 A few minutes later, Ballard was observed by Snead talking with Fugate at her au- toboard machine. Ewing, however, did not see Ballard until about 7 a.m., at which time Snead reported to Ewing that Ballard had clocked in early, that again he was found away from his job and talking with Martha Fugate, and that he (Snead) had reported the matter to Earl Barger. Sometime thereafter, Barger in Ewing's office called in Snead and Bob Clapp,92 and the four discussed Ballard's behavior. Having felt that they had gone along with Bal- lard long enough, Barger and Ewing made the decision to discharge him. At the time of his discharge by Ewing, Bal- lard was told that he was being terminated for clocking in early without permission, for not working, and talking with Martha Fugate, violating company policy. Ballard's version of the December 9 reporting incident is that, Ewing, who was 25 or 30 feet away, saw him punch in, and that they both spoke as Ballard went to his work station. According to Ballard, the discharge conver- sation with his superiors took place about 11 a.m. that morning, that, on this occasion, Clapp asked him if he knew he was not supposed to report to work early, to which Ballard replied that he had called Ewing and that Ewing had unlocked the door for him. At this, Ewing spoke up, saying that he had not done so, to which Ballard replied that the door was unlocked when he got there. Clapp then said that Ballard had been caught the day be- fore stopping and talking to an autoboarder, which Bal- lard denied. Clapp then said because of these things, they were going to have to let him go. Ballard protested, saying that he had received permission from Ewing to go to work early, at least he thought he had permission. At that, Clapp and Ballard went upstairs and Ballard was paid off. Ballard was an unimpressive witness whose demeanor on the witness stand left much to be desired. At one point I was compelled to advise Ballard to refrain from evading the questions. I do not credit Ballard's testimony to the effect that Ewing gave him permission to report early on this date and agreed to open the door for him, or that Ewing saw and spoke to him early that morning. In this regard it is undisputed that when asked by Ewing on the telephone why he wanted to report early, Ballard replied only that he was not there yet. On direct examination, Ballard testified that when confronted by his superiors at the time of his discharge he told Ewing that he had come in early in order to take his wife to Chattanooga to the doctor. In view of the past practice of granting Ballard's request for this reason, I find it hard to believe that Bal- lard would not have made known his reason that morning on the telephone instead of answering as he did. I credit Ballard's testimony only to the extent that it is cor- roborated by other credited testimony. The General Counsel asserts that Ballard was discharged for his union activity, whereas, the Respond- ent contends that he was terminated for having reported to work early and for talking with Fugate away from his work, in violation' of company rules.93 I find weaknesses in the position asserted by both parties. The evidence shows that the rule against reporting in early had not been enforced prior to the previous August, that, at that time, based upon an incident involving Ballard, the Respondent called a meeting of all day employees and they were told not to come in early, that such was against the company rules. Ewing testified that thereafter he had received com- plaints that Ballard was coming in early, and that approxi- mately a week or so before Ballard's discharge incident Ewing had warned Ballard that his clocking in early without permission could cause the Company trouble. Yet, Ewing also testified that the only incident that he re- called of Ballard's reporting in early without permission, prior to December 9, was the one back in August. This in itself renders part of the Respondent's position suspect. On the other hand, Ballard does not appear to have been one of the more active union adherents, the evidence indicating that he had signed a union card, talked with other employees, and attended, one union meeting the previous spring.94 Moreover, it would seem that, had the Respondent desired to get rid of Ballard for his spring union activity, it had valid justification to do so long before December 9. On September 9, for instance, Superintendent Barger, accompanying a visitor through the plant, came upon Ballard as he had another employee lifted off the floor and was in the process of stuffing him into a leotard buggy. Barger, obviously irritated over the matter, told Ballard that he could not tolerate this type of thing and warned him that it better not happen again. This incident, plus the reprimand by Barger on October 29 for talking with other employees away from his work station, if not warranting discipline, certainly placed Ballard on notice as to the necessity of guarding his conduct. Not- 9° Ballard's testimony as to this telephone conversation is almost identi- cal to that of Ewing, from which the quotation is taken The one dif- ference, albeit a big one, is that , according to Ballard, Ewing agreed to open the door for him . I do not credit Ballard on this. 9' Although the shift starts at 7 a in., the plant doors are normally locked until 6.45 a.m 92 Clapp, who no longer is with the Company, was, at the time, a management or supervisory trainee, not shown to have been a supervisor within the meaning of the Act 93 Pertinent posted plant rules provide: 1. WORKING TIME-Everyone is expected to report promptly for work at the scheduled shift time Do not arrive more than 15 minutes before starting time and remain at work until the stopping time except for brief necessary absences. Please do not remain in the plant more than 15 minutes after the end of the shift. 4. VISITING DEPARTMENTS -No one is to visit departments in the plant other than those in which employed except on com- pany business, unless given permission to do so by the super- visor. 94 As related in the discussion of 8(a)(1) conduct, Ballard, like many others, was unlawfully interrogated concerning the Union during the early part of May. None of the three management officials then involved was in any way connected with Ballard's December discharge . In fact, two of the three were no longer associated with management at the time of Ballard's discharge. KAYSER-ROTH HOSIERY CO. 413 withstanding such admonitions, however, the facts reveal that off and on for some time Ballard continued to violate the company rule prohibiting employees from visiting other departments, that after a number of verbal repri- mands about talking with Martha Fugate, Ballard con- tinued to ignore his supervisor's warnings, and that on the morning in question, on top of violating the rule preclud- ing employees from reporting early, Ballard again was found in the autoboard department talking with Fugate. In this regard, it is well settled that past union activity cannot immunize an employee from managerial control or properly founded disciplinary action. The Wm. H. Block Company v. N.L.R.B., 367 F.2d 38 (C.A. 7); N.L.R.B. v. Florida Steel Corp., 308 F.2d 931 (C.A. 5). Under all of the circumstances, I am not persuaded that the General Counsel has proved by a preponderance of the credible evidence that the Respondent discharged Conway Ballard for discriminatory reasons.95 I find that in terminating his employment on December 9, 1964, the Respondent did not violate Section 8(a)(3) and (1) of the Act. 21. Euel RobertTate Euel Tate was hired in January 1962 as a knitter in the knitting department, and worked in this capacity, on the second shift and later on the first shift until his discharge on February 1, 1965, allegedly for turning in a high per- centage of poor quality work. Tate joined the Union in March 1964, attended union meetings , wore the union pin inside and outside the mill, and signed a union letter sent to the Respondent the latter part of April. According to the testimony of Tate, within a day or so after signing the union letter, his second-shift supervisor, Troy Ward, approached him at his machine and said, "I see you signed a union card." When Tate re- torted that he had a right to sign anything he wanted, Ward said, "Don't you care anything about your job?" and asked why he signed the card. When Tate replied that he thought it would be a good thing for Dayton, Ward asked him when did he start worrying about Dayton.96 A month or so after this conversation with Ward , Tate, who admitted that he disliked Ward and did not get along with him, asked Everett Roberson for a fixer's job on the first shift, and, because there was nothing open for a fixer, a job in which Tate had had no prior experience , Roberson offered Tate a job as a knitter working on crawfords. Although a more difficult machine to operate, func- tionally it performed the same kind of work as did the type on which Tate had been experienced on the second shift. Tate accepted Roberson's offer. Record evidence, much of it Tate's own testimony, reveals that over a considerable length of time prior to his discharge, Tate had been getting a high degree of bad work back and that he had received a number of warnings concerning his work. As far back as May 26, 1964, his supervisor, Ward, issued him a written reprimand and ad- monished him to stay on the job and inspect his work more closely. Thereafter, according to Tate, faulty work was brought back to him "about once a week or once every two weeks." Mayes, his first-shift supervisor, in bringing work back to Tate, warned him on four or five occasions that "My work was going to have to get better... .. On or about January 15, 1965, Roberson, having scanned the high percentage report reflecting bad quality work among the knitters, talked to his supervisor, Mayes, concerning several knitters whose percentages were con- stantly running high. Roberson told Mayes that they were going to have to take whatever steps were necessary to bring this percentage down. As a result three knitters were called in and told by Mayes that they had 2 weeks to improve the quality of their work or they would be discharged. At the end of the 2-week period, on February 1, one of the knitters, Kenneth Hughes, a known union adherent, had brought his bad work percentage down, and he remained in the Respondent's employ. The other two, Tate and one Robbie Dennis, did not improve substan- tially, and they were called in and discharged for poor quality work. On the record it is most difficult to agree with the General Counsel's position that Tate was discharged because of his union activities. His signing of a union card and a union letter dates back to April 1964. While Com- pany awareness of his union sentiments also dates back to that time, there is no evidence that the Union at any time thereafter through the remainder of his employment was mentioned to him in conversations with supervisors. By his own admission, his request for transfer to the first shift was granted in the spring of 1964 after the Respond- ent had knowledge of his union sentiments. It would seem that, had the Company singled Tate out for a pre- textual discharge, considering the number of warnings on his work during the year, it had ample opportunity long before February 1, 1965. The record reveals that on some occasions bad work is returned to the wrong knitter, i.e., work that is not his. Evidence of any sort is lacking, however, that would warrant a finding that the bad work of others was purposely returned to Tate to pro- vide an excuse for discharge at this time or at any earlier time, or, in fact, that the work of other knitters was returned to Tate at all during the period.97 Thus, on the record as a whole, including Tate's failure to improve upon his high rate of poor quality work during the 2-week period of his admission that his work was "pretty bad," I find that Tate was discharged for cause, that the Respond- 95 About 2 weeks after Ballard's discharge, when he went back to the plant to inquire about receiving Christmas bonuses , Ballard became in- volved in an argument with Superintendent Earl Barger. According to Bal- lard's own testimony, when Barger told him to leave, Ballard challenged Barger to put him out The two walked outside the plant where Ballard called Barger a "dirty bastard" and threatened "if he ever come off those premises there would be a lot of us waiting for him." In view of my finding of no discrimination with respect to Ballard's discharge, I deem it un- necessary to decide what effect this physical threat to Barger might have had on the Respondent's obligation to offer Ballard reinstatement sc As noted heretofore in the discussion of 8(a)(1) conduct, Ward was not questioned as to this conversation, therefore it stands unrefuted and is credited However, I find this to be one of many examples of a dis- criminatee witness attempting to slant the facts to best establish his case. Tate's initial testimony as to this matter, placed it 3 or 4 months prior to his discharge, then placed it within a month of the November 18 election, and finally, confronted on cross-examination with his pretrial affidavit, Tate established the correct time as above recited , 9 months prior to his discharge. Although on most crucial matters, the testimony of Tate and Roberson was mutually corroborative, to the extent that it is not, I must credit Roberson over Tate, for the latter, apart from evading questions, continually reversed himself on cross-examination. 97 In this regard, the record is clear that inspectors, who are employees and not connected with management, are responsible for detecting bad work, and that it is but infrequently that an inspector returns bad work to the wrong knitter. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's decision to terminate his employment was in no way motivated by his prior union activity, and that, as to Euel Tate, the Respondent did not violate Section 8(a)(3) and (1) of the Act. 22. Robert Allen Smith Robert Smith was hired by the Respondent in February 1960 as a preboarder in the boarding room, and was so employed on the first shift under Supervisor Charlie Kel- ley on October 19, 1964, when he was discharged al- legedly for abusing break privileges and quitting work be- fore the end of the shift in violation of instructions. One of the prime responsibilities thrown upon Earl Barger when he took over the Respondent's finishing division in August was that of improving the efficiency of his division and enforcing what theretofore had been an almost complete abdication of plant rules and discipline among employees. As testified by Supervisor Wendell Borne, the old management, including General Manager Elmer Kelley, General Superintendent Leon Young, and Finishing Division Superintendent Freeman Looney, did not back up supervision in the enforcement of company rules and it was not until Barger came in that the rules in the finishing division were enforced. The record is replete with evidence reflecting the laxity on the part of manage- ment, much of which went back several years. Without attempting to set forth example after example, to reveal the extraordinary extent to which employees were per- mitted freedom, and therefore the need for rule enforce- ment, the testimony of Guyman Hill, witness for the General Counsel, will suffice. Hill testified that prior to the period in question, i.e , in January, February, and March, before the April advent of the Union, employees could and did do just about anything they wanted. They could go swimming, which Hill did on a number of occa- sions, staying as long as they wanted, or "could work only about 3 or 4 hours and go home if you wanted," that em- ployees did as they pleased in the boarding room. Although, according to Hill and other employees, management had tightened up a little bit during the winter prior to the Union, until Barger came employees in the boarding room could take a 10-minute break every hour, depending on how much production an employee wanted to make. Discriminatee Robert Smith testified that earlier employees could take breaks anytime they wanted to and did take six or eight 5- or 10-minute breaks a day. So much for the condition of the boarding room, as well as the remainder of the finishing division, prior to Barger's taking over as superintendent. Barger, about 1 week before Smith's discharge in Oc- tober, called separate shift meetings of all employees in the boarding room In each instance he raised two major topics with the employees. First, he told them that the break privileges were being abused, that the employees were taking too many breaks and too long breaks, that the employees were entitled to three 5-minute breaks and a 20-minute break for lunch during the day, and that such was company policy and that he intended to enforce it. Second, a practice by many of the boarding room em- ployees had been to quit working their machines some 30 minutes before the end of the shift, at that time to make out their work tickets for the day, and to do little or nothing the rest of the shift. Barger, at this meeting, in no uncertain terms, let it be known that such practice was to be stopped, that, from that point on, they were to con- tinue working their machines at least until 5 minutes be- fore quitting time, and that those who refused to adhere to this policy would be discharged. Contrary to the testimony of Barger, and in accordance with the testimony of first-shift employees Finley Fugate and Mayford Daniels, both of whom worked with Smith, I find that Barger told the employees that they could con- tinue to take the minute or two necessary to total up their tickets at 2.30 p.m., but that they were to get back to their machines and run them until 2:55 p.m.98 A few days after this meeting, on Friday, October 16, Barger directed Jerry Jones, an industrial engineer em- ployed by the Company, to make a timestudy of the 1 1 boarding room employees for the purpose of checking on break violations. Thus, on this date, Jones, with the aid of his timestudy board containing four stopwatches, recorded the number and length of breaks taken by the first-shift boarding room employees during the day. At the close of the shift day, having completed his study, Jones submitted a copy of the sheet to Barger The time- study sheet showed that Smith had taken six breaks, plus his lunch break, totaling 43 minutes. Penciled in was a notation by Jones that Smith did not work from 2:30 p.m. until the close of the shift at 3 p.m. The following Mon- day, October 19, upon reporting to work at 7 a.m., Smith was discharged by Barger. The General Counsel contends that Smith was discharged because of his union activity." The Respond- ent asserts that Smith was discharged for disobeying in- structions as to break privileges and quitting his work be- fore the end of the shift The record contains a volu- minous amount of conflicting testimony pertaining to the work functions and procedures of preboarders, and of Smith in particular, of matters concerning production tickets, breaks, and the timestudy, and of Smith's actions between 2:30 and 3 p.m. on the day in question. In resolving the discrimination issue at hand, I deem it un- necessary to further burden the lengthy decision herein by detailing such matters. The credible evidence reveals that Smith, by his own admission,' had been warned every week or two not to take over 5 minutes on breaks, that Barger, just a few days earlier, had warned the preboarders as a group not to take over three 5-minute breaks, and also to continue working their machines until 5 minutes before the end of the shift. Notwithstanding such warnings, which for the most part were heeded by the other preboarders including some at least who were known union adherents, Smith did not change his break practice2 and thus took six breaks, plus his lunch break, three of which were longer than the 5-minute rule. Thus, 98 That Barger instructed the employees that they were expected to get back to their machines and to run them until 5 minutes before the end of the shift is made clear by the testimony of both Fugate and Daniels Both testified that Barger told them that they knew about how many dozen they could pull the last half hour and therefore they could estimate the addi- tional production in totaling their tickets at 2 30 p m 99 Smith testified that he attended union meetings, and distributed leaflets, and that the prior spring, he signed a union card and a union letter sent to the Respondent ' Generally, I do not give credence to the testimony of Smith As exem- plified by his testimony, referred to earlier, concerning surveillance, Smith vacillated, had a poor memory, and became evasive on crucial points Ac- cordingly, I do not credit his testimony where it conflicts with other credited testimony, and, particularly, I do not credit that portion pertain- ing to matters on October 16 2 Smith admitted that he followed the same break pattern on October 16 as he had every day for months. KAYSER-ROTH HOSIERY CO. 415 not only did Smith break the rule on the number of breaks, exactly double the amount allowed, but also the rule on the length of breaks, three breaks lasting longer than 5 minutes. It would appear that Smith continued to flout management by taking as many breaks as he desired and staying as long as he wished. As to the other rule in- fraction, Jones, who made the timestudy, testified that Smith did nothing from 2:30 to the end of the shift at 3 p.m. Assistant Finishing Superintendent Bill Ewing cor- roborated Jones' testimony to the extent that he saw Smith sitting with his head cupped in his hand for 10 minutes during this time, and, further testified that, ex- cept for filling his two troughs, he saw Smith doing nothing during this entire period. Smith testified that between 2:30 and 3 p.m. he made out the production tickets, which on credible record testimony I find would not take more than a few minutes, and "I fooled around the pre-board and maybe filled up the trough," which I find would take but a minute or so.3 Accordingly, even Smith admitted that upon stopping his machine at 2:30 to tally production tickets, he never again operated his machine through the remainder of the shift, violating the directive and warning of Barger of only a few days earlier. In discharging Smith immediately upon being apprised of his having failed to heed his instructions, I am not prepared to attribute to Barger a discriminatory motive based upon Smith's union activity of the prior spring.4 I find under all the circumstances that the General Counsel has failed to prove by a preponderance of the credible evidence that the Respondent, in discharging Robert Smith on October 19, 1964, did so in violation of Section 8(a)(3) and (1) of the Act. 23. Hubert Donald Keith Hubert Keith, better known as Donald Keith, was hired by the Respondent on November 10, 1963, and worked as a preboarder until his discharge on the third shift on December 11, 1964. On this date, pursuant to Superintendent Earl Barger's directive, Leon Snead, first- shift supervisor of the boarding room, ran a timestudy on breaks among the 12 preboarders on the third shift.5 Upon completing his timestudy at the end of the shift, Snead turned the study sheet over to Assistant Superin- tendent Bill Ewing. This document, which I find substan- tially accurate in reflecting the true fact, reveals that Keith, counting his lunch break, took 10 breaks during the night, totaling 49 minutes. Of these, four were taken for purpose of drinking a coke or getting a drink of water.6 According to the testimony of Keith, toward the end of his shift on December 11,7 while he was taping boxes, Snead came by, noticed that Keith was not operating his machine, and asked him why. Keith replied that he was taping boxes and writing tickets. Within a matter of seconds after Snead left, Bob Clapp, who was a manage- ment trainee, and who I found not to be a supervisor within the meaning of the Act, approached Keith and stated that if he were not going to run his machine, why did he not quit, to which Keith replied that he was not going to quit, that he intended to run his machine. At this point, Clapp asked Keith, who had just received some 160 dozen faulty preboards back, whether he thought that he was getting preboards back because he was in the Union. When Keith replied "Yes," Clapp answered that that was not true.8 Either then or shortly thereafter Clapp told Keith that he wanted to see him in the office. Once there, Clapp asked Keith if he had taken 10 breaks during the night. After a brief discussion as to what constitutes a break, Clapp told Keith that they were going to let him go, and the two of them proceeded to Barger's office. Be- fore Barger arrived, Assistant Superintendent Bill Ewing came in, and Clapp and Ewing engaged in a short discus- sion, following which, Ewing discharged Keith. Ewing, who alone was responsible for the decision to terminate Keith on December 11, testified that in arriving at his decision, he considered several factors, namely, the report from Snead and Clapp that Keith, on the day in question, had taken nine breaks totaling 49 minutes of breaktime, that he had stopped his machine and did not run it between 6:35 and the 7 a.m. end of the shift, and that in the past Keith had been reprimanded for jumping the cycle on his preboarding machine.9 As to the taking of breaks and the timestudy upon which Ewing principally relied, Keith admitted that Divi- sion Superintendent Barger's predecessor, Freeman Loon- ey, had called the boarding room employees together in a meeting, and had apprised them that they were enti- tled to take three 5-minute breaks plus a 20-minute lunch period, Keith, on cross-examination, finally admitted that Barger, at an employee meeting held on October 20, reiterated this rule. Accordingly, there is no question but that Keith was aware of the company policy in this re- gard. There does exist a dispute, however, as to whether Keith was aware that going after a coke, getting a drink of 3 Smith's reference here is to placing leotard tights in a trough next to the preboard machine to be used by the next shift in the preboard process. 4 There is no indication when or where Smith engaged in the distribu- tion of leaflets. Accordingly, there is no evidence that the Respondent was aware of any union activity on the part of Smith subsequent to his signing the union letter the previous April or the implied threat by Charlie Kelley at the same time- The threat incident is discussed under the 8(a)(1) head- ing. s Not a timestudy specialist as was Jerry Jones, Snead used a single stopwatch and timed employees from the time they reached the break area to the time they left He also noted on his sheet, where appropriate, the ap- parent purpose for an employee's taking a break; i.e , to get a coke or drink of water 6 Except for Keith's friend Quay McKenzie who took four breaks plus lunch totaling 38 minutes (for which he subsequently received a written reprimand), and one other whose four breaks totaled 30 minutes, none of the remaining boarding room employees took more than three breaks plus their lunch or totaled more than 34 minutes 4 Keith slated it was December 9, but the facts show that he meant December 11, the day of his discharge. 8 Neither this statement by Clapp, nor an earlier statement by Super- visor Roy Stinnett to Keith the previous September to the effect that "he didn't believe the Union was any count . " was alleged or offered as evidence of 8(a)(1) conduct, but rather was offered to establish company knowledge of Keith's union activity or sentiments. In this regard, how- ever, as Keith was one who signed a union letter the prior April (signing as Donald Keith), the Respondent was aware of his union activity long be- fore these two conversations took place. 9 Supervisor Stinnett testified that an additional factor, putting out bad work, was also a reason for Keith's discharge, and that Clapp did the fir- ing. In view of the fact that it was Assistant Superintendent Ewing who discharged Keith and that he, alone, was responsible for the decision to discharge him, coupled with Stinnett's admission that he (Stinnett) had nothing to do with the actual discharge, I find that Stinnett's testimony in this regard to be in error Further, as faulty work or poor production on the part of Keith was not a factor in Ewing's decision to effectuate Keith's discharge, I deem it unnecessary to attempt an evaluation of the tremen- dous amount of conflicting testimony pertaining thereto, testimony which I now find irrelevant to the issue 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD water, or going to the restroom, were considered as breaks. Keith asserted that these trips were not subject to the break rule. Based in part, however, upon the fact that, with one exception, all of the third-shift boarding em- ployees on the night in question observed the break rule by taking the proper number of breaks, including their trips for a coke and drinks of water, and more heavily upon certain testimony of Quay McKenzie, I find that Keith was perfectly aware of what constituted a break and what did not.10 McKenzie, on direct examination, testified that, ever since General Superintendent Leon Young spoke to the employees about limiting their breaks several months before Keith's discharge, "If I got thirsty, I stayed at the machine myself," and that, if he had to go to the restroom, he did not go, but rather, waited until his break. McKenzie's practice in this regard is not con- sistent with his denial that nothing had been said concern- ing the makeup of breaks. I find that both McKenzie and Keith were aware that trips for the purposes under discussion were considered as breaks As to the number of breaks taken by Keith on the night before his discharge, even McKenzie admitted that, in addition to lunch and the breaks that they took together, Keith also went to the water fountain several times, taking "2-1/2, 3 minutes" each time. Keith, who was aware that Snead was observing the breaks of the boarding room em- ployees, admitted that on one occasion during the night he went to get a coke, and that he went to the water foun- tain whenever he became thirsty. Thus, this testimony corroborates that upon which Ewing relied in deciding to terminate Keith, mainly, the timestudy conducted by Snead On this set of facts and without attempting to pass upon the propriety of the Respondent's rule as to what con- stitutes breaks, it appears that Keith, unlike his fellow boarding room employees, including his friend and known union advocate McKenzie, refused to abide by the rules, even when he was aware that he was being checked on, displaying generally an "I don't care" attitude." Although there was little testimony concerning Keith's failure to operate his machine during the last half hour of the shift, the second factor considered by Ewing, as to the third, Keith admitted having been caught by his super- visor, Stinnett, about 2 weeks earlier, jumping the cycle on his machine 12 Notwithstanding that Keith was one of those who signed a union card and union letter the prior spring and who attended union meetings, I am of opinion and so find that, under all of these circumstances, the General Counsel has failed to prove by a preponderance of the credible evidence that in discharging Hubert Keith on December 11, 1964, it did so in violation of Section 8(a)(3) and (1) of the Act 24. Employees Stewart E. Calbaugh, James Buck Reel, Vaughn Hensley , and William Pelfrey These four alleged discriminatees are being together for purposes of discussion for hereinafter apparent, primarily, however, because they were all discharged on August 27, allegedly for stealing hose With respect to this matter, the credible record evidence discloses that, as head of Mark Lipman Service, a company engaged in making industrial security in- vestigations specializing in determining theft of merchan- dise and embezzlements, Mark Lipman was employed by Kayser-Roth in the fall of 1963 and early 1964 to make an investigation at its Burlington , North Carolina, plant. Having finished its investigation in Burlington , resulting in the uncovering of theft and the discharge of those em- ployees responsible, in June 1964 the Company, utilizing Lipman's services, commenced an investigation of theft in its Dayton, Tennessee, plant. This decision, and the formalities connected with it, was made in Burlington and was known only to Mr. Byrd, the executive vice president of the hosiery division, and Glenn Coble, the general manager of the seamless hosiery division. No company official in Dayton was aware that this investigation was taking place, nor did any Dayton official become aware of the matter until August 27, the day of the interroga- tion. For the purpose of the investigation, two detective agents, Clayton Strickland and Robert Benderman, were put to work in the Dayton plant as employees, Strickland in the boarding room and Benderman in the shipping de- partment. Thest two agents made daily reports concern- ing their investigation of thefts to Lipman, which reports in turn were mailed to Byrd in Burlington. As a result of these efforts, sometime late in August, Lipman suggested to Byrd that those employees men- tioned in the reports as stealing hose should be inter- rogated. This was postponed only briefly because one of those involved in the alleged thefts, employee James Buck Reel, had been discharged on August 21 for drunk- eness. Through Lipman's efforts, and with the reason therefore totally unknown to the Dayton management, it was arranged through Coble in Burlington to have Reel put back to work again for the purpose of completing the investigation. With all arrangements completed on the evening of August 27, the interrogation of those suspected of thievery commenced. Starting at approximately 7 p.m. on this date, Lipman followed a procedure whereby each employee who was suspected fo stealing hose was called into the office, was asked his name, age, education, and other pertinent facts. Lipman then informed the person that he had information that he had been stealing hose According to the credited testimony of Lipman, in most cases, within a few minutes, the employee admitted that he had. If an admission were made, Lipman made notes with respect thereto, and then called into the room his secretary-office manager, Mrs. Betty Richenback. At that point, in the presence of Co- ble, Lipman dictated from his notes the statement which Richenback took down. Richenback then left the room and typed the statement while Lipman interrogated the grouped next employee suspect. When Richenback returned with reasons the typed statement, the employee whose statement it 10 McKenzie, a witness called by the General Counsel, and a friend of Keith who operated a machine next to him on the third shift and with whom he took his breaks, was, in my opinion, a biased witness, one who was attempting to assist Keith in his case I find McKenzie, generally, like Keith, an unreliable witness, one who changed his testimony on several occasions and who continually evaded questions Keith whose demeanor on the witness stand was unimpressive, admitted that on one occasion he lied under oath before the Tennessee Unemployment ( ommission con- cerning this matter I do not credit his testimony other than as specifically set forth, or where it is corroborated by other credited testimony " Exemplificative of this is his testimonial reply to a question propounded on cross-examination when asked " . there is nothing to require you to go on running materials through there and making seconds or thirds, is there" Upon answering, "Yes" to this, and in turn being asked for an explanation for his answer, Keith replied, "Well, you have to make a living " 1' As testified to by McKenzie, by jumping the cycle, the operator is able to pull more tights, and therefore, to make more money KAYSER-ROTH HOSIERY CO. 417 was, was called back into the conference room. There, in the presence of Coble and Richenback, Lipman read the statement to him, asking as he went along, if it were cor- rect. At the conclusion, the employee was again asked if it were true, and, upon ascertaining from the individual that it was, Lipman asked him to sign his affidavit. In each case, after the employee signed his affidavit, it was then witnessed by Richenback, Coble, and Lipman. According to the credited testimony of Lipman and Richenback 13 every individual had his statement read to him and no one was denied the privilege of reading his statement. In each case, either the employee followed along with Lipman as he read the affidavit, both of them looking at the paper at the same time, or the employee followed on a copy of the affidavit. Lipman emphatically denied that any pressure was used on the suspected employees to sign statements, or that any threat was made based upon their refusal to sign statements. The longest time that any one was in the room was perhaps 20 minutes. Lipman's testimony in this regard is corroborated by the credited testimony of Richenback , a most impressive witness. The record reveals that only those who admitted to stealing were then discharged by Earl Barger, and that no action was taken against any employee who, although accused, did not admit to theft. 14 Among those who signed statements admitting the theft of hose were Stewart Calbaugh, James Buck Reel, Vaughn Hensley, and William Pelfrey.15 Briefly as to each, the record shows that Stewart Calbaugh was hired around May 11, 1964, and worked as a laborer, finishing floors and building racks. A month and a half later he was transferred to the boarding room where he worked on the third shift for, 2 months, and then on the second shift under Supervisor Robert Wilkey for a short while before his August 27 discharge. Calbaugh joined the Union in April, and, by union letter dated April 23 and received by the Respondent on April 27, the Respondent was ap- prised of this fact, 2 weeks before Calbaugh was hired. On one occasion about 2 weeks before his discharge, and on several occasions afterwards, Calbaugh distributed leaflets at the rear plant gate. James Buck Reel was hired in August 1963, and worked in the dye house on the second shift under Supervisor Wendell Borne until his discharge on August 27. At some point in his employ- ment, Reel joined the Union and attended two union meetings. Vaughn Hensley was hired by the Respondent on February 12, 1964, as a boarder in the boarding room. He was so employed on the second shift under Super- visor Robert Wilkey at the time of his discharge on Au- gust 27. During his employment, Hensley joined the Union, attending meetings, solicited three or four em- ployees to sign cards, and handed out leaflets at the mill. As noted heretofore under a discussion of 8(a)(1) con- duct, Hensley was questioned about the Union on one oc- casion during the last of June by Supervisor Charlie Kel- ley, during which conversation, Hensley told Kelley that he had joined the Union. William Pelfrey, known as Jimmy Pelfrey, was hired by the Respondent on February 1, 1964, as a preboarder in the boarding room, and was employed on the third shift under Supervisor Roy Stin- nett at the time of his discharge on August 27. At some point after the Union started its drive in April, Pelfrey joined the Union and talked to others about joining. Ac- cording to Pelfrey's testimony, about 6 weeks before his discharge, and again about 4 weeks before his discharge, he volunteered to Detective Strickland that he had signed a union card. With respect to their admissions, Calbaugh, in his af- fidavit, stated that "shortly after I came to work here I noticed other employees stealing socks and I started doing the same thing. I would take 12 to 15 pair of socks out at a time for my own personal use and would do so two or three times a week. I would estimate in the past 3 months that I have taken about 500 pair of socks out." Reel admitted in his statement that "about 6 or 7 months ago I started stealing hose out of the plant by taking these hose out of the plant. I would usually put these hose in a black sack and walk out. I have taken out as much as 6 dozen at a time. I would estimate that I have taken 10 dozen per week for the past 6 months or about 250 dozen hose." Hensley stated in his that "I have stolen about 12 pair of hose from Kayser-Roth in the past 4 months. Some weeks I do not take any and some weeks I take two pair a week." Pelfrey stated in his affidavit that "I have been stealing hose from Kayser-Roth for my own per- sonal use and benefit for the past 14 months and I take hose out of here nearly every day, possibly three or four pair a day or about 2 dozen per week and I would esti- mate that since I have been working here I have stolen about 500 pairs of hose," and that "I have picked up some money in selling some of this hose [sic] possibly $5 to $10 per week." Each of the four employees com- menced his affidavit by stating that "I . ................ after having been informed that I do not have to make a state- ment make the following statement of my own free will," and concluded by stating that the statement is true and correct to the best of my knowledge and belief. The facts as above found are, with one crucial excep- tion, substantially uncontested. The exception concerns the interrogation of the four alleged discriminatees by Lipman. The testimony of all four, if believed, would in- dicate that their admissions were obtained under extreme duress and threats of going to jail or the penitentiary, and that, once taken they were forced to sign under threat of arrest, and, with one exception, not permitted to read their statements.16 I find their testimony, all of it, to be completely lacking in credence. Apart from the fact that both Lipman and Richenback impressed me with their candor, and forthright unbiased demeanor while testifying and that I credit without reservation their testimony on this matter, I frankly do not remember when I, as an Ex- aminer, have felt so strongly in discrediting a witness as I do with respect to these four. I do not intend to set forth a list comprised of example after example as to the basis for disbelieving these employees, for the transcript of this proceeding will, in that regard, speak for itself. And, although I hesitate to make reference to four employees in the same manner in discussing their credibility, in this case I have no reluctance. Apart from the fact that all four, when testifying concerning the interrogation by Lip- 13 Coble did not appear as a witness in this hearing. 14 In fact, Donovan Wilkey, a General Counsel witness and well-known leader and official of the Union who was active in all leaflet distributions, was one of those accused When he flatly and emphatically denied the ac- cusation of having stolen any hose and refused to sign an admission, he was told to go back to work. i3 The record reveals that, in addition to these, employees Tommy Thurman, Albert Calbaugh, Paul Hickman, and Clyde Ray Suttles, none of whom is here involved, signed statements and were discharged. 16 None asserted, however, that he was physically threatened or that he was physically prevented from leaving All four testified to the authentici- ty of their respective statements and admitted that they had signed them 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man testified in a manner strikingly similar, almost word for word,17 based upon my observation of their demeanor while on the stand I am firmly convinced that each was bent upon proving his case without regard to the truth. Generally, they evaded questions on cross-examination and on questioning by me. Hensley, whose testimony at times was implausible, reversed himself on a number of occasions. Calbaugh, for example, when asked how many employees worked with him in the boarding room, replied that he had no idea, that he did not know whether it was 10 or 500. After having been admonished by me to answer the question, Calbaugh admitted that there were about 10 employees working with him. At one point Cal- baugh's testimony was, in my opinion, reduced to an ab- surdity when he testified that he signed the admission because he, Calbaugh, who is 6 feet 3 inches, was scared of Lipman, who is 5 feet 4 inches, that Lipman was "big enough" and that he (Calbaugh) was "not big enough to tangle with him." Pelfrey, at one point, on cross-examina- tion, was in the process of testifying contrary to his board pretrial affidavit. When counsel for the Respondent started to question him with respect to his affidavit, an af- fidavit taken by the Board field examiner, Alexander Resin, in which Pelfrey swore that he read the affidavit, Pelfrey testified, and reiterated his testimony, that he had not read it, testifying that the board agent would not per- mit him to read it, that he asked to read it and was told that he could not. Thus, apart from the implausibility of this testimony in this regard, if one were to believe his testimony, which I do not, Pelfrey lied in his affidavit when he swore that he read it. Thus, Pelfrey perjured himself. I did not believe the man while he was testifying, and I do not believe him now. An unbelievable amount of Reel's testimony, lengthy as it was, is absolutely incre- dible."' Thus, I do not credit the testimony of Stewart Calbaugh, James Buck Reel, Vaughn Hensley, or William Pelfrey, except where it is corroborated by other specifi- cally credited testimony. Thus, assuming as I do, the accuracy and veracity of the statements of these four individuals, I find that all four had engaged in stealing from the Company and that, when suddenly and without warning they were confronted with it, they admitted their conduct. True, as contended by counsel for the General Counsel and for the Charging Party, the evidence, in abundance, reveals that for years, hose, in one stage or another of manufacture, had been removed from the plant for personal use in varying amounts with and without the consent of some supervi- sion. Nevertheless, in my opinion, such does not render it any less a crime.19 More important here, however, is the absence of credible evidence tending to show that the Respondent either initiated the investigation for the pur- pose of getting at union advocates or, once under way, selected the particular employees here involved because they were union people.20 In this regard, the evidence fails to show that any of these four could be considered one of the union leaders. In fact, with respect to Reel, I seriously question that at the time of these incidents he had even joined the Union. According to the credited testimony of Supervisor Wendell Borne, sometime prior to Reel's discharge for drinking (August 21) Reel volun- teered to Borne that he would not join the Union because he had promised his close, and long-time personal friend and company official, Leon Young, that "as long as he was there that he wouldn't have anything to do with the Union. `21 Leon Young remained as general superintend- ent of the plant until his release on September 25. In view of this, coupled with the fact that the evidence does not reveal when Reel changed his mind and signed with the Union or when he attended the two union meetings,22 I am inclined to feel that Reel did not, in fact, join the Union until after his discharge when he felt that it was decidedly to his advantage. I am persuaded, and find, that the General Counsel has failed to prove company knowledge of Reel's union affiliation at any time prior to either of Reel's August discharges. Under all of the circumstances, I find that the General Counsel has failed to sustain his burden of proving by a preponderance of the credible evidence that the Respond- ent discharged Stewart Calbaugh, James Buck Reel, Vaughn Hensley, or William Pelfrey, because of their union activities in violation of Section 8(a)(3) and (1) of the Act. F. Alleged violations of Section 8(a)(4)23 1. Shirley Fugate Shirley Fugate commenced her employment with the Respondent in February 1962, as a first sewer under Su- 17, Clyde Ray Suttles, one of those discharged for stealing, but not an al- leged discriminatee herein, testified on behalf of the Respondent. His testimony , if believed , would indicate that no pressure or threats of any kind were placed on the employees by Lipman, and that all of the "theft" employees got together and had agreed to tell the same fictitious story of signing because of threats under duress and implying that the union representative, Rainey, was aware of it Suttles further testified that Rainey also told him not to admit in his labor board affidavit to stealing, which alleged advice he followed. However , as I have no more reason to believe Suttles than I do the other four, I do not place any credence in his testimony. 18 Robert Benderman , one of the two detective agents placed in the plant and who testified as to theft matters on the part of Reel, credibly testified that on the morning before he testified, which was June 8, the next to last day of the hearing, while the hearing was in session, he saw Reel outside the courtroom window, that Reel, in a threatening fashion, shook his fist at him, at the same time, shaking his head from side to side in a negative manner. As Reel was not placed on the stand for rebuttle purposes, Benderman's testimony in this regard remains unrefuted I con- sider this a threat to Benderman not to testify adverse to the interest of Reel. 18 This, in my opinion, is so, apart from the existence of the posted rule prohibiting the removal of company property. 20 Thus, I find without ment the position asserted principally by coun- sel for the Charging Party that the theft investigation was a part of a com- pany plan to break the Union and was devised as apretext for discharging union adherents. As for his additional theory, there is no credible evidence disclosing that the admissions of theft contained in the statements of these four employees were in any way predicated upon entrapment 21 As set forth under the 8(a)(1) discussion, I do not credit Reel's testimony as to an alleged August 18 conversation with Borne , wherein Reel assertedly told Borne that he had joined the Union. 22 Reel testified that Borne was not present at either meeting He further testified that Detective Strickland talked to him once or twice about the Union and meetings, but his testimony does not indicate that he told Strickland that he had joined or that he actually attended any meetings. Strickland, who became ill during the hearing and was hospital- ized, did not testify herein. 23 Sec. 8(a)(4) of the Act reads as follows: Sec. 8 It shall be an unfair labor practice for an employer- (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act. KAYSER-ROTH HOSIERY CO. 419 pervisor Rhoda Housley. She was granted a 6-month maternity leave starting in March 1963, and a 6-week leave of absence starting February 1, 1965, because of an ear infection. On Monday, March 8, 1965, a week before her leave was to be up on March 15, Fugate went by the plant where she talked with Rhoda Housely. Fugate told her that she was ready to come back to work the next Monday. Housely told Fugate that she did not have anything available right then, and for her to come back the following Friday to see if she had a machine open then. Fugate followed her suggestion and returned that Friday and was again told by Housley that she still did not have a machine available, and that if Fugate would come back on Monday, her leave terminal date, she would have her separation slip ready for her and she could draw unemployment compensation. Fugate went by the plant the following Monday and picked up her separation notice, which indicated that she had been laid off for lack of work. Fugate thereafter drew unemploy- ment compensation. Housely's version of Fugate's visit to the plant on Friday, March 12, is about the same as Fugate's except that Housely credibly testified that when Fugate came by and found that nothing was available and that she would have to take a layoff slip, she told Housely that her mother was sick, that she did not have anyone to take care of the children, and that it wculd be better for her anyway if she could be off and draw unemployment compensation. On July 13, 1965, after having testified on June 1 on behalf of the General Counsel during the earlier part of this hearing'24 she returned to the plant with Frances Hill and spoke to General Manager Everett Roberson in the office, asking him if he had any work available as a first sewers Roberson replied that he really did not know, that he would have to check into it. Frances Hill asked him whether he had any second sewing open, to which he did not reply. Fugate asked him about a boarding room job that she said she would like to try. Roberson asked her about the third shift, and Fugate replied that she would take any shift he would give her. When Hill asked Rober- son whether they should contact him, he said that he did not think there would be any use, that he knew they were available, and that if he needed them he would give them a call Roberson corroborated generally this conversation as testified to by Fugate. However, he testified that in reply to their requests for second sewer as well as preboard work, said he would have to check on both, yet, before checking, he told them that "there won't by any need for you to call back because I don't know of anything any way near in the future that we will have open." Fugate was not thereafter called back by the Respond- ent, nor does it appear that she again attempted to secure employment at the plant. My conclusionary findings with respect to Shirley Fugate are set forth hereinafter in connection with Frances Hill's case. 2. Frances Hill Frances Hill first worked for the Respondent in 1961 as a first sewer under Supervisor Rhoda Housley, and continued to do so until she was granted a maternity leave commencing December 17, 1964. By letter dated December 18, 1964, Hill was officially apprised of her leave approval and told that she would be expected to return to work on June 17, 1965, or 3 months after the birth of her child. The letter further advised her that if she should be unable to return on this date for her to contact Rhoda Housely and discuss the matter. While on leave, Hill testified on June 2, 1965, on behalf of the General Counsel during the earlier part of this hearing.25 Thereafter, according to Hill, she called the plant on June 16, and told Housley that her leave would be up the next day and that she wanted to come back to work. Housely asked her if she were able to return, and upon Hill's assuring her that she was, Housley replied that she did not have any first sewing machine for her, and that she would be able to draw unemployment com- pensation. Hill asked Housely when she could come in and pick up her separation slip, to which Housely replied just anytime at her convenience. The following day, June 17, Hill, accompanied by Shirley Fugate, went by the plant and picked up her separation slip from receptionist Peggy Austin, which reflected that she had been laid off for lack of work.26 Thereafter, Hill went with Shirley Fugate to the plant on July 13, and talked with Roberson. Hill's version of the ensuing conversation is substantially corroborative of Fugate's, as recited in the treatment of Fugate's case, ex- cept that, according to Hill, in addition to asking about a second sewing job, she too asked for a boarding room position and Roberson paid little or no attention to her. Hill and Fugate then left, and Hill, like Fugate, was never thereafter called back, nor did she again seek work with the Respondent. Credible testimony on the part of employee Jewell Toole, a first sewer who had been so employed for 4 years, discloses that 10 new employees were hired as first sewers in the sewing department between July 8 and Sep- tember 10, 1965, 4 of them within 9 days of the July 13 conversation when both Fugate and Hill applied to Roberson for work and were told that he did not know of any openings in the near future. Roberson admitted that in mid-July and into August the Respondent was con- fronted with an unexpected overflow of work from one of its other plants, necessitating the hiring of a number of first sewers. He also admitted that he learned of this after the plant vacation ended, which was July 5, more than a 24 Fugate's earlier testimony was confined to the one occasion in April 1964, alluded to above under a discussion of 8(a)(1) conduct, where in answer to her question she was assured by Supervisor Parker Bean in Everett Roberson's presence that she was not going to be fired because of the Union, and also informed that the Union cutild not help the employees and the Company was going to fight it. 25 Hill had testified (1) to the April 1964 incident in Supervisor Parker Bean's office where, in the presence of Everett Roberson, Bean assured her, as he did several others, that there was nothing to the rumor going around that those who had attended the recent Wolf Creek union meeting were going to be fired, and where Bean also stated that "he knew he couldn't fire me over a union, but ... that he could get me messed up"; (2) to a surveillance incident involving Ann Thurman at the Wolf Creek union meeting on April 10, 1964; and (3) to matters pertaining to the discharge of employee Peggy Wright. 21 Housley's version of the telephone conversation with Hill is that, after telling Hill that she did not have a new machine for her (the type Hill had worked on), Housley indicated that she could have a black machine (an older type model), fixed up which she could use. According to Housley, Hill -questioned that she could make production on a black machine and, therefore , indicated that she would rather not have it and would prefer to be off and draw unemployment compensation . Although I found both Rhoda Housley and Frances Hill generally to be most forthright and credible witnesses while appearing on the witness stand, I must credit Hill's denial that on this occasion Housley offered her or even discussed a black machine. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week in advance of his conversation with Hill and Fu- gate. Notwithstanding Roberson's unrefuted testimony that these new first sewers were hired at the door, and the fact that Hill and Fugate applied to Roberson rather than to Housley or the receptionist, under all of the circum- stances, and on the record as a whole, I find that first sewer jobs were available at the time that both Hill and Fugate were applying to Roberson on July 13.27 and that they were refused reemployment at that time because of their having rendered testimony adverse to the interests of the Respondent some few weeks before in this proceeding. I find that in so doing, the Respondent vio- lated Section 8(a)(3) and (4) of the Act 3. Kenneth Lee Hughes Kenneth Hughes, the third discriminatee whose ter- minatior is allegedly based upon his having rendered testimony in this proceeding adverse to the Respondent, was employed by the Respondent as a knitter for 9 years prior to his discharge on June 14, 1965. At the time of his separation, Hughes worked on the first shift under Super- visor Ralph Mayes. As one of the knitters in the knitting department, Hughes was paid by the number of dozen socks turned in. Approximately 10 o'clock on the morning of June 14, 1965, 2 weeks after testifying in this proceeding, Mayes approached Hughes at work, telling him that he wanted to see him in his office Once in the office, Mayes, point- ing to several bundles of socks, instructed Hughes to count them. According to Hughes, he did so, and, upon reaching the fifth dozen, noticed that "there was two socks gone out of it." At this, Mayes told Hughes that Roberson had told him to tell him (Hughes) that he was fired, and to pay him off. When Hughes asked Mayes if he were firing him, Mayes said, that if it were up to him he would put Hughes back to work, and that he suggested that they both go upstairs and talk with Roberson about his job. This they did, and, upon meeting Roberson, went into the latter's office where Hughes queried "Everett, what are you firing me for9" Roberson replied, "You know what I am firing you for." When Hughes mentioned that Mayes had indicated to him that he (Roberson) had counted his dozens over the weekend and found that they were short, Roberson stated that they were short, and that "you are done fired." At this, according to Hughes' testimony, Hughes asked Roberson to hire him back, say- ing, "Everett, will you give me one chance?" to which Roberson replied that he would riot At this point, Mayes left the office and Roberson, ascertaining from Hughes that he had not been paid as yet, suggested that they go to the manager's office Before arriving. Roberson noticed that Hughes was wearing a pair of Kayser-Roth socks, and so stated, to which Hughes agreed that they were Roberson asked when and how he got them and Hughes replied that Mayes had given them to him, that "he gives me socks all along," to which Roberson allegedly replied, "Oh, there ain't nothing wrong with that." Upon arriving at the manager's office, Roberson told Jerry Ward, the office manager, that he wanted to get 31 Even if not actually open, I find that on this date Roberson knew that they would be open in 2 or 3 days and that he purposely withheld this in- formation from the girls Hughes paid "and get him out of here." Hughes told Roberson that he had done him dirty, which Roberson de- nied. Hughes then accused Roberson of taking the missing socks out of the bundle himself, which Roberson denied, and then accused Roberson "If you didn't take them out, you know who took them out," which, again, Roberson denied. Hughes then accused Roberson of lying in his testimony at the hearing because "You told them down there that you never had mentioned Union to none of the employees,. . and I know that's one you told because. you come to me and ask me how I felt about the Union." Again, according to Hughes, Roberson de- nied the accusation. Hughes then asked for his separation slip, and Roberson left and returned shortly with it, in- dicating that Hughes had been discharged for dishonesty. Hughes protested, because he would not be able to draw unemployment compensation with this reason on his separation notice, asking Roberson if he could not put some other reason on it. Roberson allegedly replied that he could, but that he (Hughes) would "run to Mr. Benton or the Labor Board." At this, Hughes agreed that he in- tended to "run to them," and then Hughes threatened that "you are going to have to face me in court over this." Hughes then accepted his separation notice as written and his pay and left the plant. With respect to this matter, Ralph Mayes testified that, on the Thursday before, it was reported to him by inspec- tors that some of Hughes' dozens were short. On Friday, after the shift was over, Mayes counted the dozens and found that approximately 10 dozens had one or two socks missing in each. Mayes also had two employee fixers dou- ble check and verify his count. Mayes locked the work in his office over the weekend, and on Monday confronted Hughes with the dozens. After Hughes had counted the socks and found some short, Mayes, who had been told sometime earlier by Roberson that Hughes had had a prior warning on this same thing, told him that he had been warned by Roberson before for this, and that he would have to let him go. When Hughes denied having been warned, and said he would like to see Roberson, they went to the latter's office. There, confronted with Roberson's statement concerning a prior warning, Hughes admitted it, and Roberson directed that he be paid off. Roberson's version, corroborative of Mayes and a sub- stantial portion of Hughes, is that he was not aware of Hughes' shortages on this occasion until Mayes brought Hughes to his office, and that only then did Mayes ap- prise him that Hughes was short. Roberson confronted Hughes with his earlier shortage and warning,28 and Hughes admitted it but asked to have another chance. Upon ascertaining from Mayes that others had checked his count, Roberson told Hughes that they could not keep giving him chances, that they were going to have to let him go. It was at this point that Hughes got mad and started raising his voice. Roberson's account of the remainder of the conversation is similar to that of Hughes, including the latter's accusation that Roberson "cooked this whole thing up to get rid of me." The Respondent's position with respect to Hughes is that Hughes shorted his sock count, that he did so after 21 Roberson testified that about a year earlier inspectors had reported that Hughes' work was coming up short, that he personally counted the dozens, then had Hughes count them himself, and then told Hughes that if he shorted his dozens again he would fire him KAYSER-ROTH HOSIERY CO. 421 having had an earlier reprimand for the same thing, and that he denied doing it, accusing Roberson of concocting a case against him. More so than in most cases, it would appear that the resolution of the immediate question here depends upon a credibility determination. In short, Roberson and Mayes maintained that Hughes was dis- honest, that he was cheating the Company by shorting his dozens, whereas Hughes asserts that he had not done so , and that Roberson had deliberately concocted the case against him. A number of factors militate against lending credence to Hughes' testimony and to his assertion . Hughes ap- peared to be bent on building a strong case against the Respondent. In the earlier part of this proceeding, Hughes testified at some length in support of the General Counsel's case concerning Euel Tate, testifying as to his experiences of having bad work returned to him (Hughes) over a perioci of a year. At the reopened hearing while tes- tifying on his own behalf, Hughes accused Roberson in their discharge conversation on June 14 of falsifying his earlier testimony by not telling about his having inter- rogated him concerning how he felt about the Union. Had Hughes in fact been interrogated by Roberson , as he now indicates, it is strange indeed that he did not apprise the General Counsel of it earlier and that he did not testify to it in the earlier part of this proceeding. In fact , Hughes did not testify to any union conversations with Respondent's supervisors. Because of this, and not because I do not think Roberson otherwise inclined, I do not believe it oc- curred. Hughes was quick to accuse the Respondent of things other than the instant matter. His earlier testimony in- dicates that during the 12-month period after the Union came in, he got back bad work about every day, and on many occasions the work was not his.29 In his latter testimony on cross-examination Hughes testified that most of the time that bad work came back it was some- body else's work and not his, and admitted that on all of these occasions he openly accused the Company of the same thing he is doing now, of concocting a false case against him. As noted in part at least in the discussion of Tate's discharge , bad work as well as short dozens is caught by inspectors, approximately one inspector for 15 knitters, who are employees and not members of manage- ment. Hughes, in denying that he had ever been reprimanded by Roberson before being short on his sock count, was not convincing. His reply to the question on direct ex- amination was "not that I ever knowed [sic] of," and to Respondent's counsel on cross-examination as to whether Roberson had made him recount socks and threaten to fire him if he ever did it again, his reply was "I don't remember it if he did." I believe any man caught at cheating his employer and threatened with discharge for dishonesty, particularly within a year, would remember it, and, if it did not happen, that his answer on the witness stand would be much more persuasively negative than was the reply of Hughes here. Apart from this, Hughes, while testifying, did not impress me as a truthful witness. He was continuously evasive under cross-examination and repudiated a part of his pretrial affidavit , albeit a minor one. Accordingly, as against Mayes, who testified in a most forthright manner , and Roberson, whose testimony as to this matter appears credible, I do not credit the testimony of Hughes where it is not cor- roborated by other credited testimony. As to Hughes' assertion that Roberson concocted a false case against him because of his testifying herein, I find no direct evidence to support such a claim . There is no evidence to counteract the testimony of Mayes that employee inspectors were the ones to find the short count on Hughes' work.30 Furthermore , Hughes, by his own ad- mission, had been active in the Union since early 1964, a fact he had not hidden , and a fact known to the Respond- ent. Had the Respondent wished to get rid of him, based upon his own admission , as well as on company records, as to his poor quality work during the year, it did not in my opinion, need to build a false case against him.31 Finally, in my opinion, one who is not guilty of a charge and honestly feels that a false case has been made against him, does not ask for another chance as did Hughes, when, by his own admission on direct examination, he said, "Everett, will you give me one chance." On these facts , and for the reasons enunciated, I do not believe that the Respondent "cooked up" a false case against Hughes anymore than it did , as Hughes charged, throughout the year with respect to deliberately returning bad work of others to him. I find that the discharge of Kenneth Hughes on June 14, 1965 , was for cause, and in no way motivated by union considerations . Accordingly, I find that the Respondent's action in this regard did not violate Section 8(a)(3) and (4) 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 operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirm- ative action which is necessary to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged Bobby Ray Cox, Mary Francis Bowen, Ken- neth Toole, Peggy Wright, and James W. Suttles, and refused to reemploy James W. McMillian , in violation of Section 8(a)(3) and (1) of the Act, and refused to reem- ploy Shirely Fugate and Francis Hill, in violation of Sec- tion 8(a)(3) and (4) of the Act, it is recommended that the Respondent offer the above-named individuals reemploy- ment to their former or substantially equivalent positions, 21 The receipt of bad work by a knitter, regardless of whose it is, does not require a reworking or any further action on his part 30 Hughes' testimony that he counted his socks on the Friday before and found none missing is of no moment in view of Mayes' testimony that the short count was reported to him by the inspectors on the Thursday be- fore 31 Hughes had been one of the three , along with Tate and another knitter named Robbie Dennis , who had an unusually high percentage of bad work which was unacceptable and, in January 1965 , was given 2 weeks to improve his work. Hughes did so and was retained. Whereas Tate, also a union advocate , and Dennis did not, and were dismissed. 308-926 0-70-28 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, by making payment to them of the sums of money equal to the amount that they would have earned from the date of the discrimination to the date of the offer of reem- ployment, less net earnings during said period to be com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In this regard, it is further recommended that the Respond- ent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records and re- ports, timecards , and all other records necessary to com- pute the amount of backpay. In view of the fact that the unfair labor practices com- mitted are of a nature which strikes at the root of em- ployee rights safeguarded by the Act, it is further recom- mended that the Respondent cease and desist from in- fringing in any manner upon the rights guaranteed in Sec- tion 7 of the Act. 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. Kayser-Roth Hosiery Co., Inc., is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Bobby Ray Cox, Mary Francis Bowen, Kenneth Toole , Peggy Wright, James W. Suttles, and James W. McMillian , thereby discouraging membership in and activities on behalf of the above-named labor or- ganization, the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Shirley Fugate and Frances Hill, thereby discouraging membership in and activities on behalf of the above-named labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (4) of the Act. 5. By interfering with , restraining, and coercing its em- ployees in the exercise of the rights guaranteed by Sec- tion 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The Respondent did not violate the Act by dis- criminating with respect to the hire and tenure of employ- ment of Earl Calbaugh , Eugene Yates , Charles Wayne Porter, Jean Ella Potter, Doris Smith , Erma June Keylon, Noreen Nash, Shirley Shaver Wilkey, Bobbie Sue Dunn, Ronald W. Patton , Calvin Creekmore , Betty Stout, Gar- land Stinnett, Conway G. Ballard, Jr., Euel Robert Tate, Robert Allen Smith , Hubert Donald Keith . Stewart E. Calbaugh , James Buck Reel, Vaughn Hensley, William C. Pelfrey, and Kenneth Lee Hughes 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Kayser-Roth Hosiery Co., Inc., its officers , agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discharging or refusing to reemploy, or otherwise discriminating against employees in order to discourage membership in or support of the Textile Workers Union of America, AFL-CIO, or any other labor organization, or infringing in any manner upon the rights guaranteed in Section 7 of the Act. (b) Discharging , refusing to reemploy, or otherwise discriminating against employees for giving testimony under the Act. (c) Spying upon and keeping under surveillance union meetings and union activities of its employees. (d) Threatening its employees that it would engage in surveillance of union meetings. (e) Threatening its employees , in a notice to its em- ployees posted at its plant and mailed to its employees, that they would suffer serious harm if they joined the Union or engaged in union activities. (f) Discouraging an employee from honoring a sub- pena of the Board which had been duly served. (g) Creating an impression of surveillance of em- ployees' union activities by telling an employee that the employer had information concerning the employee's wife influencing people to attend union meetings. (h) Attempting to prevail upon employees to secure withdrawal from the Union. (i) Interrogating its employees concerning their union membership , activities , and desires , and the union mem- bership and activities of other employees. (j) Threatening its employees that it would close or move its plant if the Union were successful. (k) Threatening its employees with discharge or other reprisals if they joined the Union or engaged in activities on behalf of the Union. (1) Threatening its employees with the withdrawal of existing privileges if the Union came in. (m) Coercing employees by telling them that their en- gaging in union activities would hurt their chances of ad- vancing with the Company. (n) Preventing an employee from engaging in a pro- tected activity by ordering him to remove from his pocket an envelope publicizing the Union. (o) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, Join, or assist the Textile Work- ers Union of America, AFL-CIO, or any other labor or- ganization, to bargain collectively through representa- tives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or mutual aid or protection , or to refrain from any or all such activity. 2. Take the following affirmative action, which will ef- fectuate the policies of the Act: (a) Offer to the employees , whose names appear in at- tached Appendix A, reinstatement to their former posi- tions or to substantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed , and make each such employee whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him , in the manner KAYSER-ROTH HOSIERY CO. 423 and according to the method set forth in the section enti- tled "The Remedy." (b) Notify those employees named in Appendix A if presently serving in the Armed Forces of the United States of their right to full reemployment upon application in accordance with the Selective Service Act and Univeral Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records and re- ports, timecards, and all other records necessary to com- pute the amount of backpay due under the terms of this Recommended Order. (d) Post, at its Dayton, Tennessee, plant, copies of the attached notice marked "Appendix A."32 Copies of said notice, to be furnished by the Regional Director for Re- gion 10, upon being duly signed by the Respondent's representative, shall be posted by it, immediately upon receipt thereof, and be maintained for at least 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.33 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges that the Respondent vio- lated the Act by discriminating concerning hire and tenure of employment of Earl Calbaugh, Eugene Yates, Charles Wayne Porter, Jean Ella Potter, Doris Smith, Erma June Keylon, Noreen Nash, Shirley Shaver Wil- key, Bobbie Sue Dunn, Ronald W. Patton, Calvin Creek- more, Betty, Stout, Garland Stinnett, Conway G. Ballard, Jr., Euel Robert Tate, Robert Allen Smith, Hubert Donald Keith, Stewart E. Calbaugh, James Buck Reel, Vaughn Hensley, William C. Pelfrey, and Kenneth Lee Hughes. IT IS FURTHER RECOMMENDED that paragraphs 9, 11, 15, 18, 19, 20, and 21, of the complaint dated March 26, 1965, and paragraph 6 of the complaint dated April 29, 1965, be dismissed. IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges that the Respond- ent engaged in any unlawful conduct other than as found above. 32 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 33 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 Respond- ent has taken to comply herewith " APPENDIX A order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT spy upon and keep under surveil- lance union meetings and union activities of our em- ployees. WE WILL NOT threaten our employees that we will engage in surveillance of union meetings. WE WILL NOT threaten our employees with serious harm if they join the Union or engage in union activi- ties. WE WILL NOT discourage our employees from honoring subpenas of the Board. WE WILL NOT create an impression of surveillance of employees' union activities by telling our em- ployees that we have information that their relatives are influencing people to attend union meetings. WE WILL NOT attempt to prevail upon employees to secure withdrawals from the Union. WE WILL NOT interrogate our employees concern- ing their union membership, activities, and desires, or the union membership and activities of other em- ployees. WE WILL NOT threaten our employees with the closing or moving of the plant if the Union is success- ful. WE WILL NOT threaten our employees with discharge or other reprisals if they join the Union or engage in activities on behalf of the Union. WE WILL NOT threaten our employees with the withdrawal of existing privileges if the Union comes in. WE WILL NOT coerce our employees by telling them that their engaging in union activities will hurt their chances of advancement with the Company. WE WILL NOT prevent our employees from engag- ing in protective activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the Textile Workers Union of America, AFL-CIO, or any other labor organization, to bargain collective- ly through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or mutual aid or protec- tion, or to refrain from any or all such activities. WE WILL NOT discharge or refuse to reemploy, or otherwise discriminate against employees in order to discourage membership in or support of Textile Workers Union of America, AFL-CIO, or any other labor organization, or infringe in any manner upon the rights guaranteed in Section 7 of the Act. WE WILL NOT discharge, refuse to reemploy, or otherwise discriminate against employees for giving testimony under the Act. WE WILL offer to the employees, whose names ap- pear below, reinstatement to their former positions or to substantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed, and make each such employee whole for any loss of pay he may have suf- fered by reason of our discrimination against him. NOTICE TO ALL EMPLOYEES Bobby Ray Cox Pursuant to the Recommended Order of a Trial Ex- Mary Francis Bowen aminer of the National Labor Relations Board , and in Kenneth Toole 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peggy Wright James W. Suttles James W. McMillian Shirley Fugate Francis Hill All our employees are free to become, remain, or to refrain from becoming or remaining, members of Textile Workers Union of America, AFL-CIO, or any other labor organization. KAYSER- ROTH HOSIERY Co., INC. (Employer) Dated By (Representative) (Title) NOTE: We will notify the above-named individuals if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordanance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of 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, 730 Peachtree Street , NE., Room 701, Atlanta, Georgia 30308, Telephone 526-5760. APPENDIX B PLANT RULES All personnel are responsible for complying with plant rules governing conduct in the plant . The Company reserves the right to amend or add to these rules as condi- tions and/or circumstances necessitate changes. 1. WORKING TIME- Everyone is expected to re- port promptly for work at the scheduled shift time. Do not arrive more than 15 minutes before starting time and remain at work until the stopping time ex- cept for brief necessary absences. Please do not remain in the plant more than 15 minutes after the end of the shift. 2. ABSENCE FROM WORK-Anyone who is unable to report for work because of sickness or ex- treme emergency should notify his supervisor at once. Dropping from payroll may result from unex- cused absence. 3. CONDUCT-The use of profane. abusive or threatening language toward others or fighting or threatening bodily injury to anyone is prohibited. No running or horseplay is permitted. 4. VISITING DEPARTMENTS-No one is to visit departments in the plant other than those in which employed except on Company business, un- less given permission to do so by the supervisor 5. SMOKING-No smoking is permitted in he plant other than in smoking areas. 6. DRINKING-The possession or consumption of intoxicating liquors, wines, or beer on Company property, or reporting for work under the influence of or with the odor of same on breath is not per- mitted. 7. TELEPHONE-The use of Company telephones is limited to Company business. Incom- ing messages will be delivered. 8. SAFETY-Every injury should be reported to the First Aid attendant or supervisor immediately. First Aid will be administered promptly and medical services will be provided if necessary No injury shall be neglected, regardless of how small . Safety rules should be observed at all times. 9. PROPERTY -Wilfully damaging buildings, machinery, supplies, materials, or other Company property in any way or removing such property is strictly prohibited. Damaging or removing other per sons' property is forbidden. 10. TRESPASS-No one is allowed in the plant at any time other than when reporting for work or when at work, except by permission of the management. Loitering or remaining on Company property after work day or shift is ended, except when waiting for transportation, is not permitted 11. SOLICITATIONS- No solicitation will be permitted except United Fund or approved similar agencies. 12. ASSIGNMENTS-Unless provided by law, the Company will not accept wage orders or assign- ments for the payment of delinquent taxes or debts to third persons . Repeated wage assignments may cause dismissal. 13. CHANGE OF ADDRESS-The supervisor or the Personnel Director should be notified promptly of any change in address. APPENDIX C To ALL EMPLOYEES Since the Union is putting on a campaign to try to get in here, a good many questions have arisen with regard to the following matters. We believe that we should answer these questions as clearly as we can for everybody alike. It seems to us, furthermore, that you are entitled to know definitely what the Company's position is on these sub- jects: (1) This matter is , of course, one of concern to the Company. It is also, however, a matter of serious concern to you and our sincere belief is that if this Union were to get in here , it would not work to your benefit but, in the long run, would itself operate to your serious harm. KAYSER-ROTH HOSIERY CO. (2) It is our positive intention to oppose this Union and by every proper means to prevent it from coming inhere. (3) We would like to make it clear that it is not necessary, and it is not ever going to be necessary, for anybody to belong to the Hosiery Workers AFL-CIO Union, or any other Union, in order to work for this Company. The law of Tennessee guarantees this to you. (4) Those who might join or sign up with this Union are not going to get any advantages or any preferred treatment of any sort over those who do not join or belong to any Union. 425 (5) If anybody causes you any trouble at your work or puts you under any sort of pressure to join the Union, you should let the Company know, and we will undertake to see that this is stopped. (6) No person will be allowed to carry on Union organizing activities on the job . Anybody who does so and who thereby neglects his own work or inter- feres with the work of others will be subject to discharge. Anybody who tells you anything contrary to what is stated above is not telling you the truth. DAYTON DIVISION KAYSER-ROTH HOSIERY COMPANY