Marlene Industries Corp.

MARLENE INDUSTRIES CORPORATION 703 Marlene Industries Corporation ; Decaturville Sport- swear Co., Inc. ; Trousdale Manufacturing Co., Inc.; Westmoreland Manufacturing Corporation; Frisco Sportswear Co., Inc .; Aynor Manufacturing Company, Inc.; Loris Manufacturing Company, Inc.; Charles Meltzer, Individually and as Pre- sident of Marlene Industries Corporation ; Samuel Meltzer, Individually and as Treasurer of Marlene Industries Corporation; Abraham Dansky, In- dividually and as Vice President of Marlene Indus- tries Corporation ; Ray Rindone ; Daniel Beitsch; L. E. Broyles; C. M. Jones; Victor Martin; Lloyd Ep- persimons ; W. J. Schwartz and Aynor Develop- ment Corporation and International Ladies' Gar- ment Workers' Union, AFL-CIO. Cases 26-CA-2158, 2216, 2216-2, and 2276 July 3, 1967 DECISION AND ORDER On September 23, 1966, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceedings, finding that the Respondent' had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Trial Ex- aminer's Decision. The Trial Examiner also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recom- mended dismissal of those allegations. Thereafter, the Respondent and the Charging Party filed excep- tions to the Decision and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.2 The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings,3 conclusions,4 and recommendations of the Trial Examiner, with the following modifications: John Disher, a known union adherent, was pur- portedly discharged from the Loris No. 2 plant for soliciting for the Union on working time without Respondent's prior approval, in violation of a posted rule prohibiting solicitation for membership in any organization "on company time and on com- pany property," although allowing solicitation for other causes during similar periods if previously authorized by management. The Trial Examiner found that Respondent's discharge of Disher was discriminatory and violated Section 8(a)(3). We adopt his finding because, as he found, there is As did the Trial Examiner, we will herein refer to the corporations and individuals named above collectively as the "Respondent." At certain places in his Decision, the Trial Examiner incorrectly referred both to the corporate Respondent Decaturville and the town in which it is located as "Decatursville," We hereby correct this inadvertent error. 2 We find totally without merit Respondent's allegations of bias and prejudice on the part of the Trial Examiner We have fully considered the entire record and the Trial Examiner's Decision and we perceive no evidence that the Trial Examiner prejudged this case, made prejudicial rulings, or demonstrated a bias against Respondent in his analysis or discussion of the evidence. Specifically, we conclude that the Trial Ex- aminer's credibility findings are not contrary to the clear preponderance of all the relevant evidence and therefore find no basis for disturbing them, Standaid Drv Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C.A 3) Moreover, the errors in his analysis of testimony, noted infra in fn 4, are clearly insufficient to establish bias Gopher Aviation, Inc , 160 NLRB 698. Among the numerous 8(a)(l) violations which the Trial Examiner found had occurred at the Aynor plant was Supervisor Floriano's inter- rogation of Linda Collins However, the Trial Examiner inadvertently omitted discussion of Collins' uncontroverted testimony, which he obvi- ously credited and upon which his finding was based Collins testified that Floriano first asked her if she was going to the union meeting at Christine Sellers' house, and, following the day of the meeting, inquired if she had in fact attended The Trial Examiner found an 8(a)(1) violation in Respondent's posting, at the Aynor, Frisco City, and Loris plants, copies of an antiunion adver- tisement entitled "WHO DO YOU BELIEVE7" which appeared in the local Aynor paper and was sponsored by the Aynor Development Cor- poration. Since the record reveals that this advertisement was posted only at the Frisco City plant and not, as the Trial Examiner found, at all three plants, we affirm the 8(a)(I) finding only as to the Frisco City plant. We hereby correct certain statements in the Trial Examiner's Deci- sion to conform with the record, noting that these corrections in no way affect our agreement with the Trial Examiner's ultimate findings herein (I) With respect to the discharge of Mary Roberts,Jordan admitted only that other employees had been given an option of declining work offered them in lieu of a layoff While she did not testify, as the Trial Examiner states, that these employees had been recalled to work, such a conclusion is implicit in her testimony (2) With respect to the discharge of Geneva Allen, the production records show that Allen had $ 63 makeup her next to last workweek, not her last week, as the Trial Examiner states Her final week's makeup was $4 21. (3) With respect to the discharge of Letha Tyler, the General Counsel asked Adkins to identify the June 16 termina- tion ship of Letha Tyler before, not after, the J my 13 slip (4) With respect to the discharge of Pauline Strickland, the Trial Examiner incorrectly referred to the cross-examination of Strickland instead of Jordan, and, in the same sentence, referred to Edna Gerrald when he should have referred to Mary Roberts. Later, the Trial Examiner referred to Mary Roberts as an employee who was recalled to work after having quit, when he should have referred to Edna Gerrald With respect to fn 26 of the Trial Examiner's Decision, Jordan testified that she told Squires the names of employees attending the union meeting, and not, as the Trial Ex- aminer states, that Squires told her (5) With respect to the discharge of Christine Sellers, the record shows that when Sellers refused to move, Hucks went to get Adkins and it was Adkins, not Hucks, whom Sellers asked for a layoff, also that Hucks was not asked if Shelby Dix sewed on Sellers' machine, but only if Sellers had sewed on Dix's machine (6) There is no evidence that Supervisor Grainger admitted to employee King that Plant Manager Schwartz instigated the inking incident outside the Loris No I plant. But King did testify that Grainger warned her that if she didn't join the inking party, the Company would fire her or the plant would close. (7) With respect to fn 46 of the Trial Examiner's Decision, Medlin testified that she reported to Eppersimons Disher's solicitation of her and not, as the Trial Examiner states, that she reported Disher's sol- icitation of Mincey (8) Concerning the events preceding his discharge, Eugene Skipper testified that he complained to Foreman Roscoe about the excessive repairs he was receiving from the bundle boy He did not testify, as the Trial Examiner says, that he complained to the bundle boy, who replied that Roscoe had ordered him to do it. (9) With respect to Respondent Marlene's participation, Dansky spoke to employees of all plants except Frisco (10) With respect to the Trial Examiner's discussion in the section entitled "The Remedy," there were unruly mobs of em- ployees involved in assaults upon union organizers instigated or approved by management and supervisory employees at Loris, Decaturville, and Hartsville, but not at Aynor. 166 NLRB No. 58 704 DECISIONS OF NATIONAL ample evidence in the record that Respondent's su- pervisors trapped Disher into soliciting for the Union during working hours in order to establish a pretext for firing him. We do not adopt the Trial Examiner's reliance upon the Supreme Court's decision in N.L.R.B. v. United Steel Workers of America (Nutone, Inc.), 357 U.S. 357, in finding the rule discriminatorily applied and the discharge therefore unlawful, since the Court there held that an employer who engages in antiunion solicitation in a manner forbidden to his employees by a valid no-solicitation t ule does not without more commit an unfair laboi practice in en- forcing the rule against prounion solicitation by em- ployees. However, we do find that the rule, which may be read to prohibit union solicitation on com- pany property even during an individual employee's nonworking time, was "at best ambiguous and the risk of ambiguity must be held against the promul- gator of the rule rather than against the employees who are supposed to abide by it This ambiguity, coupled with the discriminatory treatment accorded union solicitation both on the face of the rule and in its applications would undoubtedl\ inhibit em- ployees from exercising their right to solicit for the Union on nonworking time any" het e on company property For these reasons, we find the no-solicita- tion rule, as promulgated, maintained, and applied in Loris No. 2,7 violated Section K(a)(i ) of the Act Consequently, even if Dishcl were actually discharged for violating this rule-winch we have found was not the reason for his discharge-the discharge would still violate Section 8(a)(3) and (i).8 THE REMEDY The Trial Examiner concluded that the conven- tional reinstatement, backpay, and posting of notice remedies for Respondent's violations of Section 8(a)(3) and (1) of the Act were inadequate to ameliorate the chilling effect of Respondent's mas- ' N L R B v Millet d/hla Mihe-( hide, ,t ( ii 41 f 2d 870 874 (C A 2), enfg 148 NLRB 1579 ° This conclusion is based on the plant manager s testimony, noted by the Trial Examiner, that he had in effect excused violations of the rule by employees who engaged in other types of solicitation on working time without permission, but discharged Disher for union solicitation under the same circumstances We also affirm the Trial Examiner's finding that the no-sohutation, no-distribution rule admittedly "maintained" by Respondent at all plants was invalid on its face and violated Section 8(,1)(1) toi the reasons which he sets forth However, we do not adopt his finding ( I XD fn 43) that it was "posted " at Respondent's plants contraiv to the I nal Examiner's finding, the complaint did not allege and Respondent did not admit that such was the case, and the record does not establish it Member Zagona agrees that the no-solicitation aspect of the separate rule at the Leris No 2 plant is sufficiently ambiguous in its phrasing so that employees are deprived of their right to engage in union solicitation on nonwork time He finds this a violation of Section 8)a)i I) of the Act However, he would not find granting of peimission by the Respondent to solicit for other causes as removing its right to prohibit union solicitation on worktime As the no-solicitation aspect of the rule maintained by LABOR RELATIONS BOARD sive and deliberate unfair labor practices. The Trial Examiner correctly found that Respondent's unfair labor practices were directed in substantial part towards the prevention of any direct communica- tion and contact between its employees and the Union, while at the same time Respondent and its agents carried on an extensive unlawful antiunion campaign. Hence, he ordered Respondent, in addi- tion to the usual remedies, to (1) mail a copy of the notice to all employees; (2) grant the Union and its representatives, upon request, reasonable access for a 1-year period to its bulletin hoards and other places where notices to employees are customarily posted; (3) make available to the Union, upon request, at a mutually agreeable time within 3 months, suitable facilities for a I-hour meeting with employees on company time; (4) publish the "Notice to All Employees" at its expense once a week for 3 consecutive weeks in a newspaper of general circulation in each community where it had a plant, (5) permit employees to have access to union organizers during nonworking time on plant approaches and parking lots,9 and (6) address and mail prestamped union literature to all employees on three occasions, and thereafter whenever the Respondent or its agents should employ the mails to disseminate antiunion literature We agree with the Trial Examiner that extraordi- nary as well as conventional remedial provisions are both essential and appropriate in this case. In our opinion, however, certain modifications of th° Trial Examiner's recommended remedies are desirable. The Trial Examiner was requested by the Charg- ing Party to order Respondent to furnish it with a list of names and addresses of Respondent's em- ployees The Trial Examiner refused to do so in order to safeguard what he considered the right of privacy of those employees to whom a home visit by the Union would be unwelcome. However, not- ing that under the circumstances of the present case "any attempt to talk with employees or distribute Respondent at all its plants proscribes only such employee solicitation as interferes with production, he would also hold that the granting of permis- sion to solicit for other causes does not invalidate this otherwise lawful no- solicitation rule N In Miller-Charles, supra, the Board found that employee Vega was discrimmatonly discharged for distributing union leaflets in violation of an invalid no-distribution rule In granting enforcement of a reinstatement and backpay order , the Court of Appeals for the Second Circuit said, "The Respondent apparently did not adequately distinguish between pro- tected and nonprotected distributions, and in the absence of a rule making a valid distinction that would be clear to employees, Vega's discharge had the effect of interfering with piotected, oiganizational rights " 141 F 2d at 874 Although Vega, unlike Disher, was engaged in union activities on nonwork time, we find the principle expressed by the court applicable herein under the circumstances detailed above See also Story Old,,nobile, nt , 140 NLRB 1049 1058 We do not adopt the Trial Examiner's recommendation that Respond- ent he order to "cease and desist" from interfering with the access of employees to union organizers on company property since we make no finding that Respondent violated the Act by denying such access in the past MARLENE INDUSTRIES CORPORATION 705 literature at or near plant property might well be meaningless," he recommended that Respondent be required to address and mail prestamped union literature to all employees on three occasions and thereafter whenever Respondent or its agents sent antiunion literature through the mails, We find merit in the Charging Party's exception to the Trial Ex- aminer's refusal to grant the remedy it requested. We believe that one of the best ways to insure the right of Respondent's employees, which Respond- ent so flagrantly violated, to be informed of their Section 7 right to organize is to give the Union herein the opportunity which we recently afforded the Union in J. P. Stevens and Co., Inc., 163 NLRB 217, to "make known its views in an at- mosphere relatively free of restraint and coercion." Any resultant intrusion into the right of privacy of employees will be minimal since such employees are free to refuse home visits or telephone calls by union organizers. Moreover, we cannot now as- sume that those who chose this course will there- fore encounter harassment or coercion by the Union. Accordingly, "[a]s the Respondent was responsible for the unfair labor practices in the plants and for the attendant lack of organizational opportunities, and as all the employees' names and addresses are not available from sources other than the Respondent,"10 we shall require Respondent, upon request of the Union made within 1 year of the issuance date of this Decision, to give to the Union a list of names and addresses of all employees at its Tennessee, Alabama, and South Carolina plants. Another remedy which we, like the Trial Ex- aminer, find essential in order to effectuate fully the policies of the Act is to permit employees to have access to union organizers on plant parking lots and plant approaches during nonworking time. We limit such access on company property, however, to the 6-month period following the issuance of this Deci- sion. Although, as the Trial Examiner fears, Respondent's history of violent hostility to unionization may well make union organizing at or near the plants meaningless for some time to come, we think that the possibility that some employees will avail themselves of the opportunity for commu- nication with organizers provided for by this remedy amply justifies its inclusion. Babcock & Wilcox'1 is not, in our opinion, authority to the con- trary. There, the issue of access by union organizers to company property arose in the context of an un- fair labor practice allegation against the employer for refusing such access. The Supreme Court, in dismissing that allegation, held that an employer has a right to bar nonemployee organizers from coming on its property provided that the Union has other means of communicating with employees and the employer "does not discriminate against the union by allowing other distribution." The Court specifi- cally noted, however, that "when the inaccessibility of employees makes ineffective the reasonable at- tempts by nonemployees to communicate with them through the usual channels, the right to ex- clude from property has been required to yield to the extent needed to permit communication or in- formation on the right to organize."12 In the instant case, we are concerned with the issue of access by nonemployee organizers in a remedial context. Furthermore, unlike the respondent in Babcock & Wilcox, this Respondent committed massive unfair labor practices which were, in substantial part, of a kind deliberately calculated to thwart the Union's attempts to communicate with employees through the usual channels. For these reasons, we believe that the limited intrusion into Respondent's "right to exclude from property" which we are by our Order allowing is not inconsistent with the Court's decision. We come now to the related remedial provisions, listed above as (1), (2), (3), and (4), which the Trial Examiner recommended. Although these remedies may be individually justifiable, we find that (3) and (4) are cumulative in remedial purpose in light of the two remedies, listed above as (5) and (6), which we have previously found appropriate. We have there- fore decided to adopt only (1) and (2), requiring Respondent to mail a copy of the notice to each em- ployee, and to grant the Union, upon request, reasonable access to employee bulletin boards and other places where notices to employees are customarily posted for a 1-year period from the is- suance date of this Decision. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ents, Marlene Industries Corporation, New York, New York; Decaturville Sportswear Co., Inc., Decaturville, Tennessee; Trousdale Manufacturing Co., Inc., Hartsville, Tennessee; Westmoreland Manufacturing Corporation, Westmoreland, Ten- nessee; Frisco Sprotswear Co., Inc., Frisco City, Alabama; Aynor Manufacturing Company, Inc., Aynor, South Carolina; and Loris Manufacturing Company, Inc., Loris, South Carolina; their of- ficers, agents, successors, and assigns, including but not limited to Charles Meltzer, Samuel Meltzer, Abraham Dansky, Ray Rindone, Daniel Beitsch, L. E. Broyles, C. M. Jones, Victor Martin, Lloyd Ep- persimons, W. J. Schwartz, and Aynor Develop- ment Corporation, shall: 10 J.P. Stevens and Co., Inc , supra, under the section entitled "The Remedy" and cases therein cited at fn. 23 11 N.L.R B. v. Babcock & Wilcox Company, 351 U.S. 105 12 We do not adopt the Trial Examiner's reference to the Court's deci- sion in Babcock & Wilcox, in the section entitled "The Remedy," since we find it misleading 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from. (a) Discharging, laying off, forcing termination of, or otherwise discriminating against employees in order to discourage membership in or support of International Ladies' Garment Workers' Union, AFL-CIO, or any other labor orgamzation, or en- couraging or permitting employees to engage in an- tiunion activity while prohibiting employees from engaging in activity on behalf of the Union (b) At any time instigating, encouraging. or caus- ing employees or other person, to engage in as- saults or threats of violence directed at persons en- gaged in activities on behalf of International Ladies' Garment Workers' Union, AFl -CIO, or any other labor organization, or permitting employees or other persons on company property to engage in such conduct. (c) Banging on , spraying ink on, or damaging au- tomobiles and other property of persons lawfully engaged in activities on behalf of the above-named labor organization or any other labor organization. (d) Promising or granting to employees benefits, such as paid holidays, insurance, or vacation or bonus pay, when the purpose thereof is to interfere with the self-organizational efforts of employees or to induce employees to reject or refrain from activi- ties in support of International Ladles' Garment Workers' Union. AFL-CIO, of any other labor organization. i 3 (e) Engaging in surveillance of employees' ac- tivities with respect to union organization (f) Engaging in surveillance by photographing employees engaged in union organizational activi- ties. (g) Creating an impression of surveillance of em- ployees' union activities by telling employees that the Employer has lists of employees who engaged in union activities. (h) Threatening employees with discharge or other reprisals if they become or remain members of the Union or give assistance or support to it. (i) Encouraging and assisting employees in withdrawing from the Union. 0) Interrogating employees concerning their or other employees ' union organizational activities or their opinions regarding union organization (k) Instructing employees to watch for union ac- tivities and listen for opinions regarding union or- ganization of other employees and report findings to us. (1) Promulgating , maintaining, or enforcing no- solicitation rules prohibiting employees during nonworking time from soliciting for the Union on Respondent's property. (m) Promulgating , maintaining . or enforcing no- distribution rules prohibiting employees during nonworking time from distributing materials on be- half of the Union in nonworking areas of Respond- ent's property. (n) Enforcing rules prohibiting solicitation dur- ing worktime in a manner which discriminates against solicitation on behalf of the Union. (o) Threatening employees with closing or mov- ing the plant should they engage in activities on be- half of the Union or select the Union as their collec- tive-bargaining agent. (p) Coercing employees by telling them that other employees had been discharged or would not be recalled because of their union activities. (q) Warning employees that they would not be able to get a job in any plant in the State if they were known to favor the Union. (r) Warning employees not to accept or read union literature , and to destroy any such literature that they received (s) Altering working conditions when the pur- pose thereof is to interfere with the self-organiza- tional efforts of employees or with their right tojoin or assist International Ladies' Garment Workers' Union , AFL-C IO, or any other labor organization. (t) In any other manner interfering with, restraining , or coercing employees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist International Ladies' Garment Workers ' Union , AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, and to refrain from any or all such activities. 2 Take the following affirmative action to effec- tuate the policies of the Act: (a) Offer to the employees whose names appear in the Appendix attached hereto reinstatement to their former positions or to substantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed, and make eacn such employee whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him, in the manner described in "The Remedy" section of the Trial Examiner's Decision. (b) Notify those employees set forth above, if presently serving in the Armed Forces of the United States of their right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents , for examination or copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the "the Trial Examiner inadvertently omwul this iumedial provision from his Recommended Order and Notice to All Finplovees MARLENE INDUSTRIES CORPORATION amounts of backpay due and the rights of employ- ment under the terms of this Order. (d) Mail a copy of the attached notice marked "Appendix"14 to each employee, and post copies at their plants located in South Carolina, Alabama, and Tennessee. Copies of said notice, on forms pro- vided by the Regional Director for Region 26, shall be signed by a managing representative of Respond- ent, Marlene Industries Corporation. Thereafter, a copy shall be mailed by the Companies to each of their employees working in their South Carolina, Alabama, and Tennessee plants, and additional signed copies shall be posted by them and be main- tained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Companies to insure that said notices are not altered, defaced, or covered by any other matierial. (e) Upon request of the Union, immediately grant the Union and its representatives reasonable access, for a 1-year period, to plant bulletin boards and all p aces where notices to employees are customarily posted. (f) Instruct employees, supervisors, and mem- bers of management that physical assaults or threats thereof directed at union organizers or em- ployees engaged in union activities will not be tolerated on plant premises at any time, and take reasonable, effective steps to enforce such rule and to protect employees and union organizers lawfully on its premises. (g) Upon request of the Union, made within 1 year of the issuance date of this Decision, im- mediately give to the Union a list of the names and addresses of all employees in their plants in Tennes- see, Alabama, and South Carolina. (h) Permit employees to have unrestricted ac- cess to union organizers during nonworking time on plant approaches and parking lots for a period of 6 months from the issuance date of this Decision, subject only to such reasonable and nondiscrimina- tory regulations as Respondent may find it neces- sary to impose in the interest of plant efficiency and discipline, provided, however, that said regulations do not serve to thwart the employees in the exercise of the right guaranteed them herein. (i) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be. and it hereby is, dismissed insofar as it al- leges violations of the Act not found herein. APPENDIX NOTICE TO ALL EMPLOYEES 707 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge, lay off, force ter- mination of. or otherwise discriminate against employees in order to discourage membership in or support of International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, or encourage or permit em- ployees to engage in antiunion activity while prohibiting employees from engaging in activi- ty on behalf of the Union. WE WILL NOT at any time instigate, en- courage, or cause employees or other persons to engage in assaults or threats of violence directed at persons engaged in activities on be- half of International Ladies' Garment Work- ers' Union, AFL-CIO, or any other labor or- ganization , or permit employees or other per- sons on company property to engage in such conduct. WE WILL NOT bang on, spray ink on, or damage automobiles and other property of per- sons lawfully engaged in activities on behalf of the above-named labor organization or any other labor organization. WE WILL NOT promise or grant benefits such as paid holidays, insurance , or vacation or bonus pay where the purpose thereof is to in- terfere with employees' self-organizational ef- forts or to induce employees to reject or refrain from activities in support of International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT engage in surveillance of em- ployees' activities with respect to union or- ganization. WE WILL NOT engage in surveillance by photographing employees engaged in union or- ganizational activities. WE WILL NOT create an impression of sur- veillance of employees' union activities by telling employees that the employer has lists of employees who engaged in union activities. WE WILL NOT threaten our employees with discharge or other reprisals if they become or remain members of the Union or give assistance or support to it. " In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words `a Decree of the United States Court of Appeals En- forcing an Order " 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE Wit I NOt encourage of assn employees in withdrawing from the Union WE WILL NOT interrogate our employees concerning their or other employe( s' union or- ganizational activities or then opin^ons regard- ing union organvatron WE Wu I NOT instruct employees to watch for union activities and listen for opinions re- garding union oigamzation of other employees and report findings to us WE WILT NO-1 promulgate maintain, or en- force no-solicitation rules prohibiting solicita- tion on behalf of the Union during nonworking time on our property. WE WILT NOT promulgate, maintain, or en- force no-distribution rules piohihiting the dis- tribution of materials on behalf of the Union during nonworking time in nonworking areas of our property WE Wlu NOi by dischaigmg or otherwise disciplining employees enforce rules prohibit- ing solicitation during worktime in a manner which discriminates against ,oliciii,ttion on be- half of the Union WE WII I NOI threaten employees with clos- ing or moving the plant should they engage in activities on behalf of the I-nion or select the Union as their collective-haigamuig agent. WE Wit I NOt coerce employees by telling them that other employ ees had been discharged or would not he iecalled because of their union activities WE Wii I Not warn employees that they would not be able to get a joh in any plant in the State if they were known to his or the I. nion WE Wit I NOi warn employees not to accept or read union literature or to desiroy any such literature that they receive WE wit L NOT alter working conoitions when the purpose thereof is to interfere v, ith the self- organizational efforts of ow employees or with their right to join or assist International Ladies' Garment Woi kers' I mots. XFL L-C 1 or any other labor organization WE WILL NOT in any othei manner interfere with, restrain, or coerce our employees in the exercise of their right to sell-organiTltion to form labor organizations. to loin or.Issist Inter- national Ladies' Garment Workeis' Union, AFL-CIO, or any other lahoi organization. to bargain collectively through iepresentatives of their own choosing, and to engage i i other con- certed activities for the purpose o t' collective bargaining or other mutual ,id or protection. and to retrain from any or all such activities WE Wit I offer to the employees whose names appear helov< reinstatenunt to their former positions or to substantiall, equivalent positions without prejudice to th, rr seniority and other rights and privileges pri vrously en- ,toyed, and make each surh employee whole for any loss of pay he may have suffered by reason of our discrimination against him, with interest. Stanford Roberts Joe Doyle,J;. Mary Roberts Edna Alford Gerrald Geneva Allen Barbara Smith Margaret Dell Jordan Pauline Strickland Harry T. Rabon Nannie Martin Minnie Bourne Lane Cnristine Sellers Letha Tyler Drunella Lewis Ruth Gerrald John B. Disher Eugene D Skipper WE WILL, upon request of the Union, im- mediately grant the Union and its representa- tives reasonable access, for a I-year period, to our bulletin boards and all places where notices to employees are customarily posted. WE WILL permit employees to have un- restricted access to union organizers during nonworking time on plant approaches and parking lots for a period of 6 months, subject only to such reasonable and nondiscriminatory regulations as may be necessary in the interest of plant efficiency and discipline WE WiIi instruct our employees, super- visors, and members of management that physical assaults or threats thereof directed at union organizers or employees engaged in union activities will not be tolerated on plant premises at any time, and take reasonable, ef- fective steps to enforce such rule and to protect employees and union organizers lawfully on its premises. MARLENE INDUSTRIES CORPORATION, DECATURVILLE SPORT- SWEAR CO , INC.' 1TROUSDALE MANUFAC- TURING CO , INC , WEST- MOREI AND MANUFAC- 1 UR1NG CORPORATION'. FRISCO SPORTSWEAR CO., INC., AYNOR MANUFACTURING COM- PANY, INC , LORIS MANUFACTURING COM- PANY, INC (Employer) Dated By (Representative) (Title) NOTE. We will notify any of the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment, upon application, in accordance with the Selective Service Act and the Universal Military MARLENE INDUSTRIES CORPORATION 709 Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive 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, 746 Federal Office Building , 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E WEIL, Trial Examiner: Upon charges and amended charges filed during a period between July 22 and December 9, 1965, by International Ladies' Gar- ment Workers' Union, AFL-CIO, herein called the Union, the Regional Director for Region 26 of the Na- tional Labor Relations Board (Memphis, Tennessee), herein called the Board , issued complaints against Mar- lene Industries Corporation; Decaturville Sportswear Co., Inc.; Trousdale Manufacturing Co., Inc.; Westmore- land Manufacturing Corporation; Frisco Sportswear, Inc.; Aynor Manufacturing Company, Inc.; Loris Manu- facturing Company, Inc.; Charles Meltzer, indi- vidually and as president of Marlene Industries Cor- poration; Samuel Meltzer, individually and as treasurer of Marlene Industries Corporation; Abraham Dansky, in- dividually and as vice president of Marlene Industries Corporation; Ray Rindone; Daniel Beitsch; L. E. Broyles; T. M. Jones; Victor Martin; Lloyd Epper- simons; W. J. Schwartz; and Aynor Development Cor- poration, herein collectively called Respondent and separately called Marlene, Decaturville, Trousdale, Westmoreland, Frisco, Aynor, Loris, Charles Meltzer, Samuel Meltzer, Dansky, Rindone, Beitsch, Broyles, Jones, Martin, Eppersimons, Schwartz, and Develop- ment. Subsequently on November 26, 1965, and January 5, 1966, the Regional Director issued his order, on behalf of the General Counsel, consolidating the above cases for the purposes of hearing. The consolidated complaint, amended prior to and at the hearing, alleged in substance that Respondent at the plant locations of the subsidiary companies engaged in a massive campaign to defeat or- ganization by the Charging Party during the course of which it threatened employees with discharge and with plant closings, engaged in surveillance of their union ac- tivities, induced and encouraged employees to withdraw from union activities, changed the working conditions of employees, promulgated and enforced rules against sol- icitation, established no-solicitation and no-trespassing rules and posted armed and other guards for the purpose of enforcing such rules , engaged in , and instigated, sol- icited, and condoned employees engaging in, violence directed toward union organizers and supporters , ordered and instructed employees not to take or read union litera ture and circulars or engage in union activity, and laid off 1 employee and discharged 16 employees because of their union activity all in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act . Respond- ent filed an answer denying that it had engaged in any unfair labor practices. Pursuant to notice I conducted a hearing at Hartsville and Decaturville , Tennessee , and at Myrtle Beach, South Carolina, on various dates from February 14, 1966, to March 1, 1966 , at which all parties with the exception of Aynor Development Corporation were represented by counsel and participated in the proceedings . At the con- clusion of the hearing , the parties waived oral argument. Subsequently briefs were filed by the General Counsel and by Respondent and a memorandum was filed by the Union adopting the General Counsel's brief and arguing for additional and extraordinary remedies in the event I find violations as alleged. Upon the entire record' in the case and from my obser- vation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Marlene, a New York corporation, is engaged, through wholly owned subsidiaries, in the manufacture and dis- tribution of women's clothing. Its principal offices are located in New York City. In the course and operation of its business Marlene annually sells and ships products valued in excess of $50,000 directly across State lines to various States of the United States. Marlene is and at all times relevant hereto has been an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. Trousdale, Westmoreland, and Decaturville are Ten- nessee corporations and wholly owned manufacturing subsidiaries of Marlene and are engaged in the manufac- ture of women's clothing at plants located respectively in Hartsville, Tennessee, Westmoreland, Tennessee, and Decaturville, Tennessee. During the past 12 months, Trousdale, Westmoreland, and Decaturville in the course and operation of their business each purchased and received materials valued in excess of $50,000 directly from points located outside the State of Tennessee and each manufactured, sold, and shipped their products valued in excess of $50,000 to points located outside the State of Tennessee. Frisco is an Alabama corporation and a manufacturing subsidiary of Marlene and is engaged in the manufacture of women's clothing at its plant in Frisco City, Alabama. i Because of the length of the record and the nature of the hearing and in order to expedite delivery of the transcript the official reporter was forced to assign estimated pagination to the portions of the transcript as it was completed and delivered This resulted in overlapping and lapses of page numbers . Overlapping was readily cured by the device of adding a letter sequence to the last assigned number and presents no problem. However, to assist reviewing authorities, I herewith list page numbers for which there are no pages: 293, 622 thru 649, inclusive; 1049, 2752 thru 2767, inclusive. 3002 thru 3065, inclusive, and 3400 thru 3999, inclusive. After the hearing the parties moved and stipulated that the record be corrected in various particulars It appearing proper, the motion is granted and the record is corrected as prayed therein. The parties by stipulation moved to reopen the record to receive the transcript of the record in a related injunction proceeding, tried after the close of the hearing, and that I consider the testimony therein as though the witnesses had appeared before me and so testified The motion is granted, and the transcript is received, designated Joint Exh. 1. I have duly considered the contents of the exhibit and my findings and conclu- sions herein are based to some extent thereon 308-926 0-70-46 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the past 12 months, Frisco in the course and operation of its business purchased and received at its Frisco City, Alabama, location materials and supplies valued in excess of $50,000 directly from points located outside the State of Alabama and manufactured, sold, and shipped women's clothing valued in excess of $50,000 from its location directly to points located outside the State of Alabama. Aynor and Loris are South Carolina corporations and manufacturing subsidiaries of Marlene engaged in the manufacture of women's clothing at Aynor and Loris, South Carolina. During the past 12 months, Aynor and Loris in the course and conduct of their business each purchased and received materials and supplies valued in excess of $50,000 directly from points located outside the State of South Carolina and during the same period each manufactured, sold, and shipped women's clothing valued in excess of $50,000 from their plants directly to points located outside the State of South Carolina. Trousdale, Westmoreland, Decaturville, Frisco, Aynor, and Loris are each now and have been at all times material herein employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondents Charles Meltzer, Samuel Meltzer, and Abraham Dansky are and at all times material have been officers and agents of Marlene and its subsidiary manu- facturing corporations and are employers within the meaning of Section 2(2) of the Act. Mount Hope Finish- ing Company, 106 NLRB 480, 498. Respondents Rindone, Beitsch, Broyles, Jones, Mar- tin, Eppersimons, and Schwartz are persons employed as the managers of the plants operated by the subsidiary manufacturing corporations and are agents of the em- ployers and accordingly are themselves employers within the meaning of Section 2(2) of the Act. Respondent Development is a South Carolina corpora- tion which, as found below, acted as an agent of Marlene and Aynor and accordingly is an employer within the meaning of Section 2(2) of the Act. See Mount Hope Finishing Company, supra. II THE LABOR ORGANIZATION INVOLVED It is conceded and I find that International Ladies' Garment Workers' Union, AFL-CIO, is and at all times relevant hereto had been a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Background In May 1965 the Union commenced overt organization at the seven plants operated by Marlene in Tennessee, Alabama, and South Carolina. The first step in the Union's campaign was the distribution of leaflets at each plant by union representatives. Dansky, Marlene's coordinator of manufacturing ac- tivities, first was informed by telephone of the campaign while on a business trip to Denver. Within 4 or 5 days he was informed by each of the plant managers that an or- ganizing campaign had begun at their separate plants. Dansky immediately commenced a countercampaign consisting of the delivery of speeches at the various plants, starting at the Aynor plant, granting wage in- creases and other benefits to the employees and giving them steady work. The Union's campaign continued with distribution of leaflets, meetings, and organizational calls on the em- ployees. Opposition, sometimes of a violent nature, by employees, townspeople, and supervisory and managerial personnel of the Respondent, set forth below, gave rise to the charges herein. Integration of Employers General Counsel contends that Marlene and its various subsidiaries, Trousdale, Westmoreland, Decaturville, Frisco, Aynor, and Loris, comprise a single employer so that the parent and subsidiary companies are jointly liable for the unfair labor practices allegedly committed by each. Respondent denies that the various corporations are so integrated as to result in joint liability and contends particularly that the General Counsel has failed to show functional integration between the various subsidiaries and a common labor relations policy. The record reveals and Respondent admits that the subsidiary corporations are wholly owned by the parent corporation, Marlene, and have common officers. Mar- lene, together with its subsidiaries, is engaged in the manufacture and distribution of women's clothing. Ap- proximately 80 percent of the products sold by Marlene are manufactured in the plants of its subsidiaries, all of whose production is distributed by Marlene It is clear from the record that the various plants of Marlene's sub- sidiaries manufacture their product in accordance with orders from Marlene both as to style, nature of the product, and quantity. For instance, plants have been required by Marlene to switch from the manufacture of blouses to that of pants and from the manufacture of one type of pants to another. Even the layout and cutting operation is controlled by Marlene by the distribution-to the plants that have cutting rooms of patterned sheets for the guidance of the cutters in the subsidiary plants. Plant engineering, including timestudies upon which are based quotas of production employees, is done either by en- gineers supplied by Marlene or by resident plant en- gineers. At the time of the hearing Engineer Dan Miller was apparently stationed at Trousdale but appears to have performed his engineering functions at other plants including the Aynor plant. Marlene Vice President Dan- sky was also production coordinator for Marlene. All plant managers appear to have been directly responsible to Dansky in this capacity.2 The extent of Dansky's powers are revealed by the fact that in the case of Plant Manager Martin of the Aynor plant as well as Plant Manager Jones of the Frisco plant permission from Dan- sky to disburse funds was required before the plant manager could do so. It appears that the payroll at the Aynor Plant, at least, was made up in New York. The plant managers and the higher echelon supervisors in the various plants are paid on a confidential payroll by Mar- lene from the New York office. Personnel is interchanged at all levels. The plant manager from Westmoreland was trained and formerly employed at the Trousdale plant. Manager Jones who managed the Frisco City plant at the 2 Dansky has, since the occurrences detailed herein, been replaced as production coordinator by Robert Cole MARLENE INDUSTRIES CORPORATION time of the alleged unfair labor practices there was the manager of the Aynor plant at the time of the hearing. Various employees including Stanford Roberts, Eugene Skipper, and John Disher worked in one plant and were transferred to other plants. Loris Personnel Manager Median testified that she was personnel manager for both Loris plants and that until June 1965 she was required to send all termination slips for the plants with which she was concerned to the New York office. At the Aynor plant, Martin, the plant manager, was apparently not per- mitted to sign checks, and Marlene Vice President Dan- sky signed the payroll checks. Respondent contends there is no lateral integration between the subsidiary corporations. Since the integra- tion of the production of the subsidiary corporations with the Marlene enterprise is so complete, lateral integration is relatively unimportant. However, it unquestionably ex- ists. For instance, it is clear that the cutting room at Loris No. 2 does all the cutting for the Aynor plant. Similarly the cutting room at Trousdale does all the cutting for the Westmoreland plant and the warehousing facilities of Trousdale are used for the Westmoreland plant which it- self maintains no inventory. As to the centralized control of labor relations the record is very clear. At each of the plants the plant managers, with the commencement of union organization, informed the employees and supervision of the labor rela- tions policies of Marlene. To combat organization, Dan- sky, in some cases accompanied by the Meltzers, the owners of the Company, made speeches to the employees of all of the subsidiaries except Frisco in which Dansky pointed out the policy of Marlene with regard to the Union. Each plant manager immediately contacted Dan- sky to inform him of the commencement of union or- ganization; Dansky admittedly informed each of them that they were to fight the Union in every way possible and, as this report will show hereafter, each did. The record reveals clearly that the day-to-day earnings of the employees were centrally controlled by Marlene by the imposition of work standards and rates; that a common policy with regard to vacations, holidays, and insurance exists was made clear by Dansky's speeches to the em- ployees after the union organization commenced in each plant in which he announced the bonuses, holidays, and insurance would be given the employees of the various enterprises.'; In short, I find that Marlene and its manufacturing sub- sidiaries, each a respondent herein, are integrated in every respect as a single enterprise and as such each is responsible for the unfair labor practices of the other. They are in fact a single employer although they bear various names and operate under various corporate char- ters. See, Miller Industries, Incorporated, 152 NLRB 810; Winn-Dixie Stores, 147 NLRB 788; Darlington Manufacturing Company, 139 NLRB 241, and cases there cited. B. Aynor Plant Two of the South Carolina plants of Marlene are located in the town of Loris and the third in the town of ` Plant Manager Martin's testimony that he unilaterally determined to give the same benefits to his employees that Dansky announced to all the 711 Aynor. Loris, Aynor, and Conway, South Carolina, are situated to form an almost equilateral triangle with sides of about 20 miles. Union leaflets were distributed at the Aynor plant in the first week in May. When the second distribution took place about May 15 and on each of several subsequent distributions Plant Manager Martin and his assistant, Ad- kins, stationed themselves outside the plant where they could see employees who accepted the leaflets. On May 16 Supervisor Mildred Hardwick, according to Drunella Lewis' credited testimony, asked Lewis if she did not stop with the girls to take a leaflet. When Lewis admitted that she had, Hardwick said, "Well don't you know that a $1.25 hour is better than nothing." On the same day Su- pervisor Hardwick asked employee Nannie Martin if she had taken a paper from the union people. When Martin admitted it Hardwick told her that she had "better not be messing with that thing because things were getting seri- ous and a lot of people would be out of their jobs." The entry to the Aynor plant intersects State Highway 501. On occasions when the union organizers were dis- tributing leaflets at the plant, State highway patrolmen blocked off the traffic on Highway 501 so that the plant employees could come out in a steady stream without stopping. There is no evidence that the Employer had anything to do with this fact; however, there were no highway patrolmen there at times when the union or- ganizers were not there. On May 27 the employees were called together at the Aynor plant where they were addressed by Marlene Vice President Dansky on company time. On this occasion Dansky made a speech in which he informed the em- ployees that the Company did not want a union in the plant and intended to fight it. He made the following statements: You didn't get your job here from any Union and this Union is not going to get you a job anywhere else, if you lose yours here .... They are just after your money-nothing else-and that's the simple truth .... The Union can't make us sign a contract or pay higher wages or keep an undesirable em- ployee-it can't make us do anything we think is bad for the Company's business ... about all the Union can really guarantee to get for the money they take from you is trouble, real trouble, like shutting down this plant with a strike .... Now if they deny that they are thinking of calling a strike you just ask them how they figure to try to make us do anything unless they pull a strike and throw you out of work .... We know how Unions can destroy a company's plant with their strikes and other troubles. This means that if you let yourself get mixed up in this thing, the Union will be standing around without risking their jobs or their paychecks, watching you and the Company in a fight. The Union can't lose anything by telling you to fight us but we can lose this plant and you can lose everything you've got here . . . . If you are asked to sign a union card don't do it ... if you have signed a card don't let it worry you . just be sure to let the union people know you have changed your mind and be sure to let the other em- other employees is discredited i All dates hereinafter are in 1965 except where otherwise stated.- 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees know that you have changed your mind . . .. Don't let these union people pester you. You have the right to tell them, in plain language, that you want to be left alone. You have the right to walk away from them and to keep them out of your house .... Come tell us what they are promising you, to try to bait and hook you into signing up with them. When we know what they say then we can set you straight on the facts .... Many of you have the best jobs you ever had, you have a good future here and we should be able to do even more for you as we improve our business and capacity. I am sure you will agree that we will all serve better if we work together. By help- ing each other, in every possible way, we will insure greater benefits and happier livelihood for all . . . . After reading the speech, Dansky went on and in- formed the employees that they were being granted addi- tional benefits including a bonus of 2 percent of their an- nual wages, paid holidays, and an insurance program.5 I find that the speech was redundant in both threats of economic consequences and promises of benefits in viola- tion of the Act. It is clear that Respondent implied, in fact it said in so many words, that if the Union succeeded in organizing the plant the Employer would give nothing without a strike and a strike means that "we can lose this plant and you can lose everything you've got." Dansky stated that all the Union can really guarantee is a strike, which would shut the plant down, and possibly destroy the plant. The Board has heretofore found that remarks, which standing by themselves may be protected by Sec- tion 8(c), are unlawful when delivered in a context of coercion and restraint created by an employer's unfair labor practices.6 In the face of the Employer's unalterable resistance to union organization, the employees could not resist the inference from Dansky's speech that union or- ganization necessarily leads to strike, otherwise it would be ineffective, and that strikes in their turn lead to per- sonal loss by the employees and ultimately to the closing of the plant. Further, Dansky's speech clearly implies that the Employer, the donor of the employee benefits, could be expected to give the employees more benefits in the future without the intervention of a union and Dansky emphasized the force of the argument by announcing ad- ditional benefits to the employees at that time. In the context of the Employer's antiunion conduct, I find the speech by Dansky coercive both in the promise of benefits and the implications of financial harm should the employees select a Union. See Bernardin, Inc., 153 NLRB 939. Unquestionably, the grant of benefits con- tained in the same speech, admittedly part of Respond- ent's antiunion campaign, constitutes a violation of Sec- tion 8(a)(1) of the Act, N.L.R B. v. Exchange Parts Co., 375 U.S 405. Sometime between May 27 and June 4, the employees were again assembled in the plant this time to hear an an- nouncement by Hugh Parker, a local businessman and member of Development, that the employees were all in- vited to a chicken dinner to be given at the Aynor High School on the evening of June 4. After the announce- ment, supervisors came to the employees to list those who expected to attend the chicken dinner. Apparently most employees attended. ' I discredit Dansky's denial of the latter promises I credit the testimony of Chnstme Sellers who attended the meeting but did not attend the subsequent dinner at which Dansky admits having made the promises which are included in the text of a second speech, which allegedly was not According to Vice President Dansky the dinner was sponsored by the Aynor Fire Department for the benefit of the whole town. The record reveals no evidence that the Aynor Fire Department was ever mentioned or that any of the speakers represented the Aynor Fire Depart- ment at this meeting. The public address system was sup- plied by the Aynor plant and apparently operated by Plant Manager Martin and his assistant, Adkins. Speakers at the dinner included Vice President Dansky, the two Meltzer brothers, Robert Floyd, a local business- man and president of Development, James Stevens, a State senator, and Bill Davis, a local businessman. The various reports concerning what was said by the speakers are to some extent conflicting. This is probably attributa- ble, in part, to the fact that the public address system was at no time operating perfectly and apparently deteriorated throughout the evening. Dansky contends he used the second of his two written speeches, discussed below. Harry Rabon, an employee, testified that one of the Meltzers said "they just couldn't operate under a Union .. the plant would close down and go back to New York where it would be just a matter of a few minutes that they could drive and be to their main office." Neither Meltzer was called to testify. In view of the other statements made at the meeting I think that Rabon was confused as to the speaker and I can not find from his testimony that the speech he was reporting could be specifically at- tributed to either Meltzer brother. In view of the other speeches at this meeting, I find it unnecessary to make findings concerning the Meltzer speech. Rob Floyd was a more outspoken speaker. It is clear that he threatened that the plant would close if the Union succeeded in organizing the employees. He stated that the Meltzers would not operate under a union and they would close down the plant before they would do so. Floyd pointed out that the city needed the payroll and it was up to the city to keep the Union away. Floyd stated that the contract between the Aynor Development Cor- poration and Marlene contained a clause that the Com- pany could shut down the plant and leave if the Union came in. He warned the employees that they would be fired if they did not withdraw from the Union and pointed out that if they wanted to withdraw from the Union they could seek the assistance of the members of Develop- ment. Senator Stevens and Bill Davis also spoke but no clear report of anything they said was adduced. It is clear that no attempt was made by Dansky, either of the Meltzers, or Plant Manager Martin or his assistant, Paul Adkins, to disavow any of the statements made by Floyd. In my opinion, Floyd's statements reinforced the effect of- Dansky's speech. Floyd's statement and Dan- sky's speech, considered together in context, amount to a clear threat to the employees that union organization would result in discharge and plant closing and a loss to all of them of their jobs, a clear violation of Section 8(a)(1). On June 22, Development held a special stockholders meeting The invitation, signed by President Robert M. Floyd, stated "urgent that you attend in person as your investment in Aynor Development Corporation is at stake. Aynor is in danger of losing plant payroll and your written at the time the May 27 speech was delivered " Mc Cornnc k Longmeadow Stone Co , 155 N LRB 577, Savoy Leather Mfg Corp., 139 N LRE 425. MARLENE INDUSTRIES CORPORATION help is needed to retain it. The purpose of the meeting will be to advise you how you can help prevent the loss of the plant, to elect directors and to transact any other business brought before the meeting." About 40 of the 100 to 200 stockholders were present. Floyd addressed the meeting, stating that it looked like the Union was coming into Mar- lene and that if the members wanted to keep the payroll they would have to stop the Union. He suggested talking to the employees to keep them from voting for the Union and advising them to write the Union to withdraw thereform if they had already joined. A new board of directors was elected and a grievance board was elected to handle employee complaints against Marlene. The next day Plant Manager Martin called the employees together at the front of the plant7 and told them that if the em- ployees joined the Union they would not have their jobs. He pointed out that his house was on wheels (he lived in a trailer) and that he would not suffer if the plant moved. Then Martin informed the employees of the election of the new Development board officials and said if the em- ployees had any questions they could go to the Develop- ment board with them. On or about July 26, Development mailed to all the employees of the Aynor plant a handbill entitled "WHO DO YOU BELIEVE?" The handbill, briefly stated, points out that Marlene in 1964 closed a plant leaving 3,500 union employees jobless; that much of Martin Luther King's Civil Rights drive in the South has been paid for from union investments and union funds; that if the Marlene plant were to be organized the plant may well be gone; and that the employees could expect that if they were known union members, no plant in the area would hire them. The handbill closes with the following state- ment. If you have been misled in signing a card, we urge you for the sake of industrial growth in our county, and for your own security, to sign and mail the en- closed letter today withdrawing your name from Membership. The handbill is signed by W. E. Hucks, Jr., president of Development, the purported sponsor of the handbill. About the same time, the handbill was printed as an ad- vertisement in the local Aynor paper, but without the paragraph referring to withdrawing union authorization. Enclosed with the handbill was a form letter addressed to the Union stating: . the union card I recently signed pertaining to an Election with the Marlene Industries plant at Aynor, S. C. was not truly represented to me in purpose or intent. I wish to withdraw this card by having it returned to me and my name in no manner be used in this Union Organization Drive. The record reveals that both the Aynor and the Loris plants as well as the Frisco City plant posted copies of the advertisement headed "WHO DO YOU BELIEVE?" on their employee bulletin boards. The responsibility of an employer for the conduct of an outsider is established only when the contractual relation- 713 ship known as agency arises, deriving from the mutual consent of principal and agent that the agent shall act for the principal. The principal's consent may be manifested by conduct, sometimes even by passive acquiescence, as well as by words. Authority in an agent will be implied whenever the conduct of the principal is such as to show that he actually intended to confer that authority, or, given knowledge that an agent has acted without such authority, that he ratifies such action either expressly or impliedly and enjoys the benefits thereof. Here there is no showing that the Employer expressly, before the fact, authorized the Development Corporation to act in its behalf. With the inception of the union or- ganization Development's president, Floyd, commenced acting to keep the Union out of the Aynor plant. His ac- tions set forth below with respect to Standford Roberts and with respect to the three girls, Baxley, Alford (Floyd's sister-in-law), and Jordan warning them to stay away from the Union; his action in calling together a meeting of the membership of the Development Corpora- tion and advising the members that the plant would move if it were organized by the Union; and his speech at the dinner at the Aynor High School are not shown to have been authorized beforehand by Respondent. However, Respondent was certainly aware of Floyd's action. Respondent's highest officers were present at the dinner at Aynor High School and did nothing to disassociate themselves or Respondent from the actions of Floyd and the Development Corporation. On the contrary, Dan- sky's speeches at the dinner and at the plant, Martin's speeches at the plant, and the actions of various super- visors dealt with elsewhere in this report all are consistent with the statements made by Floyd. Further, at least to the employees, the dinner at the high school was to some extent sponsored by Respondent. It was announced at Respondent's plant over Respondent's loudspeaker system during working hours and Respondent's super- visors made up the list of the employees who would at- tend. The record does not disclose who paid for the dinner or the use of the high school if there was any charge, but it does disclose that the public address system was furnished by the Respondent and that Respondent's owners, the Meltzers, and Vice President Dansky spoke at the meeting while Manager Martin and his assistant, Adkins, manipulated (although not too successfully) the public address system. Accordingly, I find that by its silence to its employees under the circumstances above detailed, Respondent ratified by implication and certainly acquiesced in the activity and statements of the Develop- ment Corporation and its members. See Lake Butler Ap- parel Company, etc., 158 NLRB 863, Byrds Manufactur- ing Corp., 140 NLRB 147, enfd. 324 F.2d 329 (C.A. 8, 1963), and the cases cited therein. It is well established that an employer violates the Act if it or its agent threatens to close the plant or to discharge employees if they join the union or if the union is success- ful in its organizing campaign. It is no less violative for an employer or its agent to solicit employees to withdraw their union authorization cards or assist them in so doing. See Heights Funeral Home, Inc., 159 NLRB 723; Yale Mfg. Co., 150 NLRB 1102, enfd. 356 F.2d 69 (C.A. 1, 1966); S. H. Kress & Co., 137 NLRB 1244. I find there- fore by the actions of Development and its President I ioyd, Development and the Respondent herein violated Section 8(a)(1) of the Act. 7 Martin's denial of the threat of plant closure is not credited 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find further that by posting at the Aynor, Frisco City, and Loris plants copies of the advertisement headed "WHO DO YOU BELIEVE?" on the employee bulletin board, Respondent not only ratified the action of Development but itself independently violated Section 8(a)(1) of the Act. The Discharges at Aynor Stanford Roberts Stanford Roberts was employed at Aynor from the first part of December 1963 until May 17, 1965. He worked as a maintenance man, maintaining the pressing machines, boilers, steam boilers, generators, and air con- ditioning, did electrical work, both installation and main- tenance, and apparently whatever other type of main- tenance work came up. While employed at the Aynor plant he was sent on occasion to the Loris plants, both No. 1 and No. 2, where he installed pressing machines and electrical wiring. On at least one such occasion he was ordered to the Loris plant by Vice President Dansky. During his employment he was never criticized for his work and was given two raises. About 3 months before his discharge, Dansky informed Roberts that Manager Martin had asked for a 25-cent raise for him but that Dan- sky had authorized a 15-cent raise which would be given to him, backdated 1 week. Stanford Roberts creditably testified that the em- ployees had been discussing organizing the plant for a period of several months prior to the actual commence- ment of the Union's organization campaign. On the first occasion when Union Agent Boan was passing out hand- bills enclosed in rain caps Roberts accepted a rain cap and engaged in a conversation with Boan concerning union organization. On May 14 Roberts was one of the few employees who stopped and accepted a leaflet. Dorthy Jordan, finishing department supervisor, asked him if he was going to vote for the Union and he told her that he would do so. The next day, Roberts was in the drugstore in town talking with a group of townspeople, one of whom asked him whether he was going to vote for the Union, and he said, "well I'm going to tell you, I'm looking for a paid vacation and a raise in pay. I'm going to vote for it if I ever get a chance to vote for it." Rob Floyd, an officer of Development, said, "you just don't know what you're doing. There won't be no plant if the Union comes. It is in the lease on the plant, in the agreement, that if the Union comes the plant can move and will and then they will just raise rats in the plant." Plant Manager Martin called Roberts into his office at the close of the next workday and gave Roberts a choice, quit or get fired. Roberts asked why and received no reply except "you got an idea." Roberts declined to quit and Martin told the office girl to bring him the check for that week. The check was in the wrong amount and Martin told her to refigure it and bring a check for the right amount. When the girl returned she pointed out that Mar- tin could not give him a check because the office manager, Johnnie May Offord, was not there.8 The next day, when Roberts went back to the plant to get his check, he asked Martin for a slip showing the real reason he was fired. Martin turned to Office Manager Of- ford and said, "Johnny May, give him a slip showing him that his duties is absorbed to another department." The day after his discharge, Roberts called Vice Pres- ident Dansky at his office in New York. He asked Dan- sky why he was terminated and Dansky told him that he had been told that Roberts would be active in organizing a union and asked him if he had been active. Roberts de- nied organizing, but admitted that he would vote for the Union. Dansky said he was coming to Aynor and would straighten the matter out; and he said he would call back that afternoon. In the course of the conversation, accord- ing to Roberts, Dansky said that the Company was not going to tolerate a union; that they had moved to Japan at one time on account of a union; and that they would move again. Dansky said that he had told the people in Horry County that Marlene had taken the people off of welfare, off the street, and put them to work; and if they wanted to go back there, to vote for the Union, because in that event the Employer would not be there; they would move. The next morning, Dansky told Roberts by telephone that he would straighten things out when he came to Aynor. In this conversation he again expressed himself that the Employer was not going to tolerate a union, and again asked Roberts if he had been active in organizing. Roberts told him that all he had ever done was stop and pick up a pamphlet and talk to the union man at the gate; that he had not organized anything, but that he would vote for the Union. Dansky told him "Don't mess with the Union." Roberts met Dansky at Rob Floyd's office in Aynor some days later. Dansky told Roberts that he had to go to Tennessee, but that he would come back in a week and would see him then. Roberts had no communication from Dansky thereafter. Prior to Roberts' discharge, Tom Mahoney, the indus- trial engineer, an admitted supervisor at Aynor Manufac- turing Company, was present during a discussion in which Roberts stated that he would vote for the Union. After his discharge, Roberts saw Mahoney at the home of Lamar Squires, another supervisor and Roberts' brother- in-law, at which time Mahoney said that he hoped Roberts was not connected with the Union; that he had heard Roberts say that he would vote for the Union, but he hoped he would not be active in helping the organi- zation.9 I find that Roberts was discharged because of his union adherence and in order to discourage union activity among the employees, in violation of Section 8(a)(3) and (1) of the Act. Although Roberts was obviously a versatile and valua- ble employee, Respondent contends that his job was eliminated. The record reveals this contention to be wholly specious-in fact it appears Respondent encoun- tered difficulty thereafter in filling the job either by as- signment of one or more employees to do it, or by con- tracting out some of the tasks. On one such occasion the contractor had to call on Roberts to be shown how the job could be done It is clear that Respondent's chief concern regarding Roberts had to do with his union activity. As the various supervisors and agents of Respondent so freely predicted, a lot of people would be out of their jobs as a result of the Union. Stanford Roberts was the first. Offord had custody ofa stamp bearing Dansky's signature Mahoney did not testify MARLENE INDUSTRIES CORPORATION 715 Mary Roberts Mary Roberts was employed at Aynor when the plant first opened in 1961. She started sewing and was then switched to servicing at which she worked for about 2 years. She was laid off on two occasions from July 1963 until January or February 1964 and from September 8, 1964, until the end of December 1964. During her last period of employment after December 1964, her Job was primarily tagging ladies pants; she also snapped and but- toned stirrups and did other work in the finishing depart- ment under the supervision of Dorothy Jordan. Jordan admitted that Mary Roberts was a good employee and made production. The complaint alleges that Mary Roberts was laid off on April 28, and thereafter refused reinstatement all because of her union activities. However, it is clear that the layoff of April 28 was unconnected with any activities concerning the Union since the union campaign had not commenced at that time and did not for another week or so. At the time of the layoff there were six or seven women performing tagging work, this is apparently the normal work crew on that job. Five of the women were laid off. Supervisor Jordan offered Roberts work as a trimming in- spector; however Roberts had arthritis in her hand and declined the work. Jordan assured Roberts that she would call her back when the work picked up. Of the employees laid off with Mary Roberts, one, Lynn James, was recalled the following day, two more were recalled within a few weeks, and one, Bonny Alt- man, has never returned to work (she was pregnant when she was laid off). By the end of May the finishing depart- ment was back up to eight taggers but Roberts was never recalled. Annette Squires, Mary Roberts' sister-in-law, on June 18, asked Supervisor Jordan if the fact that she and her husband were related to Stanford Roberts, Mary Roberts' husband, would affect their jobs. Jordan said that she did not feel that any of Stanford's family would ever work there again. Jordan told Annette Squires that she would call Mary Roberts back to work because she was a fine worker but Plant Manager Martin would not let her do so. Stanford Roberts was of course well known to the Em- ployer to be a strong union advocate. Mary also attended union meetings except for the initial one at the Live Oak Restaurant. Respondent contends that Mary Roberts was not called back to work because Supervisor Jordan con- sidered Mary Roberts as having voluntarily terminated her employment on April 28, when she refused to accept the trimming work. The mass separation slip filled out by the Employer for the State Unemployment Agency reveals that Roberts was laid off for lack of work and was not at that time considered to have quit her job. Jordan admitted that other employees had been permitted to decline work offered them in lieu of a layoff and had returned or had been recalled to work. There is no show- ing of any special circumstances with regard to Mary Roberts that would have caused a different application of Respondent's normal recall procedures. I conclude that Mary Roberts' layoff was, initially, economically motivated and that thereafter when she would have been recalled to work, she was not, both because of her own union activity and because of her husband's. I credit Annette Squires ' account of her con- versation with Jordan and I believe that Jordan was speaking no more than the truth when she revealed that none of Stanford Roberts' relatives would ever work at Aynor again. I conclude and find the refusal of the Respondent to recall Mary Roberts was violative of Sec- tion 8 (a)(3) and (1) of the Act. Geneva Allen Allen, a side seamer, worked under Supervisor Shelby Hardy, who is her sister. Throughout her employment, since 1964, she had failed to make production. Shortly after the Union commenced its organizing campaign Eu- nice Roberts, a forelady, asked her how she felt about the Union. Allen said if she had her way that she would write a letter for every employee and sign their names and send it in to the Union. Allen further said, "I know what a Union can do for us because I worked under one before." Roberts asked where and Allen told her in Richmond, Virginia. Roberts laughed and said, "gal you are really for it," and she got up and walked away. Within the next few days, on May 19, 1965, Shelby Hardy came to her sister and asked her why she did not make production on the preceding Monday. Allen pointed out that they had started on a new material and had to do additional work on the zipper plackets which they had not done before and that neither she nor any of the other employees made production that day.10 About 3:15 Hardy came to Allen and said Plant Manager Martin said to let her go because of high makeup (i.e., low production). The General Counsel contends that Allen was discharged because of her union sympathies. Respondent contends she was discharged because she was incapable of making production. Her termination slip stated that she was discharged because of lack of work. Supervisor Hardy testified that after March 1965, when Geneva Allen first came to work under her supervi- sion, she made production 2 or 3 days sometime in April but from April until the day of her discharge, her makeup went up. Hardy testified that she talked with her sister several times about her makeup, but without any success and discharged Geneva Allen after talking it over with Stitching Room Supervisor Adkins. On cross-examination, Supervisor Hardy testified that she had never talked to her sister about the Union or heard her sister talk about the Union and she had no idea what her sister's feelings toward the Union were at the time her sister was employed. Although she had testified that from April until the day of her discharge Geneva Al- len's makeup went up, on cross-examination she testified that she was aware that from March 17, 1965, her sister's makeup weekly was respectively $3.40, $4.71, $1.12, $3.47, $4.08, $1.71, $5.52, $5.32, and finally, $.63. When asked to explain this fact she answered, "Well, as long as she had been there she ought not to have had no makeup at all " Adkins testified that Allen was discharged because her production was among the lowest in her section. The General Counsel called for the records of Geneva Allen as well as the other employees in her section. The Employer declined to furnish the records or to comply with a subpena calling for their production and later sup- 10 Respondent subsequently changed the quotas for the new work 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plied only a few records which Respondent selected on an undisclosed basis II As a result it is a piactical impossi- bility to determine whether in fact (,eneva Allen was hav- ing production difficulties of such a nature that Shelby Hardy's testimony can be credited It appears from those few records which Respondent did furnish that during the week ending May 19 even employees who normally made a bonus had considerable diffit. ulty making produc- tion This appears to contnm the ttstimi rty of Geneva Allen that they were working on a nrateri it which made their work especially difficult and that in"st of the girls did not make production that week The records furnished by Responder confirm the testimony of Allen. and of other cmployees, that when employees fell below production by small amounts, Respondent took no special pains to call it to their atten- tion It appears that some employees went on for months on various Jobs with makeup each week it eatl,, in excess of that charged against Genera Allen Shelby Hardy testified to her ignorance of her sister s - upport of the Union and hei ignorance of her Employer s and particu- larly the plant manager's opposition to tht Union which I find completely incredible Allen ss,rs ,t least on the verge of making production at a time wh1 it others were continuing to work who were nowhe,c near making production. In view of the fact that I annot accept the Respondent's purported reason for discharging Geneva Allen 4nd in all the circumstances of this c ise, especially the circumstances that, 1 have found and I find below. Respondent threatened to and did discharge _mployees for joining the Union or who showed an interest in the Union. I find that Geneva Allen was disLharged because of her union membership and in order to discourage her union membership. in violation of 8I ,or , f and l I 1 Margaret DellJoid,in As pointed out above, the Union commenced its or- ganizing campaign handing out iam taps which included union literature On May 14, 10 or 15 employees were gathered in a restroom at the Aynor plant and several, in- cluding Betty Baxley. Geraldine Altord, and Margaret Dell Jordan discussed whether they should write to the address in Georgia given in the union literature included in the rain caps Margaret Jordan agreed to write for further information Present in the iestroom at the time was Supervisor Eunice Roberts who super t ised the sec- tion in which Jordan was then employed The following Sunday, Geraldine \l ord met her brother-in-law, Rob Floyd, who told Altord that Plant Manager Martin had asked him about the three girls Baxley, Alford, and Jordan Floyd knew Baxley and Al- ford, but not Jordan Floyd told Gcraldn,e Alford that Plant Manager Martin had told him that \ ice President Dansky had given orders that he should let anyone go who was in favor of the Union Floyd reported that he asked Martin not to let the three girls go until Floyd had talked to them Floyd told Alford that he had already talked to Baxley, and warned Alford not to talk about the Union at the plant The next day, Baxley and Alford went to Floyd's office and informed Floyd that they had not joined the Union Floyd assured them that their problem would be taken care of Two days later, on Wednesday, May 19 Margaret Dell Jordan was laid off by Supervisor Shelby Hardy for whom she was then working Accord- ing to Jordan. Shelby Hardy told her that Mr Adkins was laying her oft because of lack of work When JorJan asked whether it was a temporary or permanent layoff. Supervisor Hardy said that she did not know anything hut what Mr Adkins had told her Jordan went to Adkins and asked him the same question Adkins said Jordan was being laid off, whereupon Jordan said she wanted a layoff slip She was given it copy of the employment security commission form, known as a mass separation notice, which indicates that she was separated on 5/1/65 due to lack of wor k At the time of her discharge. Jordan was working on pellon which is a stiffening material used, apparently. in the cuffs of pants She stated that on the day of her layoff there were big stacks of pellon waiting to be done. She also testified that her girl friend. Joann Lowemore, said that she was put to work on Jordan's machine after Jor- dan was laid off Jordan has never been recalled Shelby Hardy testified that she had been Jordan's su- per N isor for a period of months and that after a period in March 1965, when Jordan's production was satisfactory her makeup went up The earnings record of Margaret Dell Jordan is one of the few that the Employer presented at the hearing It reveals that during the weeks of March 3 and March 10 Jordan had no makeup Thereafter her makeup climbed to a high of $3 105 on April 21 , after which it declined until throughout May it averaged less than $ 1 45 a day until her discharge This is. of course. inconsistent with the testimony of Hardy that Jordan's makeup went up each week. and casts considerable doubt on the pur- ported reason for discharge Employees Cook and Nan- nie Martin had greater makeup on second seaming during the same period and were not discharged until duly Respondent's failure to produce the additional records necessary to fill out the picture raises the inference that these records, like the records they did produce, would not sustain their position I find, as I found with Geneva Allen. that the reasons given for the discharge of Mar- garet Dell Jordan are pretextt'al and not supported by the evidence, although such evidence was in the sole control and custody of Respondent I find further that employee Jordan manifested an interest in the Union almost from its inception and that this came to the attention of Respondent After the background of violative conduct set forth above and below, I can only infer that the true reason for the discharge of Jordan was her activity on he- I he reLords and Respondent s position are de,dt w Ott ern MARLENE INDUSTRIES CORPORATION 717 half of the Union and that her discharge is violative of Section 8(a)(3) and (1) of the Act.12 Minnie Bourne Lane"; and Letha Tyler Minnie Bourne Lane commenced work at the Aynor plant in 1961, where she worked as a side seamer on blouses. She worked until February 1962, and quit because she moved. She returned to Aynor and resumed employment at the Aynor plant in October 1962, where she continued side seaming blouses After about 6 months the plant switched to the manufacture of pants and Minnie Lane side seamed pants until she was discharged on June 16, 1965. In addition to first seaming, she second seamed, bar tacked, merrowed ends, and usually made production. She also set bands and snapped stirrups at which jobs she was paid average pay. There is no question that she consistently made production and a bonus. Supervisor Adkins told her that she was a good operator because he could put her on almost any kind of machine and any kind of job and she could do it.14 During the last 6 months before her termination, Min- nie Lane was assigned generally to bar tacking. During the last few weeks of her employment, she was given the work of snapping stirrups and setting bands. There is no evidence that Respondent had any problem with Minnie Lane. Plant Manager Martin and Supervisor Adkins both ad- mitted that they usually went outside the plant when union organizers were handing out leaflets in order to watch the organizers. Neither gave any explanation of their conduct other than that they were curious. Em- ployee testimony, which I credit, discloses that Plant Manager Martin, when union organizers were present, adjured the employees on leaving the plant to roll up their windows and not take union literature. Nevertheless, Minnie Bourne Lane stopped and took literature from the union agents on two occasions, the second being on or about June 10, 1965. On June 10, the Union had an organizing meeting at the Conway Motor Inn at which only a few employees were present. This was a preliminary meeting, not adver- tised as a meeting for all employees. It was apparently un- dertaken for the purpose of organizing the Union's cam- paign. Minnie Lane attended this meeting. On June 16, shortly after noon, Supervisor Adkins came to Minnie Lane and said, "We are out of work, there is no seaming, the bartacking is out and it looks like I am going to have to lay you off." Lane replied, "Well, if I am going to be laid off I want it for more than a day or two." Adkins said, "Well, I will give you a permanent layoff," and Lane replied, "I don't want that because I want to return to work." Adkins said, "Well, you can go at noon, go by the office and pick up your layoff slip." No layoff slips were available at the time. Lane went home and another employee brought her layoff slip that even- ing. It stated: "Style exhausted, job completed. "15 At the hearing, General Counsel called for the termina- tion-of-employment slip for Minnie Bourne Lane and the Respondent produced a document dated August 9, 1963, bearing the name Minnie L. Bourne. The document bears, written in blue ink, the name, Minnie L. Bourne, her address and clock number, and the dates October 24, 1962, and 6/16/65. In red ink on the same form the space fcr "attendance" is marked "o.k.," for "attitude" is marked "poor," for "quality," "o.k.," for "Would we rehire," "no" and in a space provided for "explanation" the following language appears: "job discontinued, had difficulty moving her from one operation to another." The document was signed by Paul Adkins. Adkins had no ex- planation for the fact that it was dated 8/9/63, although at no point in the testimony concerning Minnie L. Bourne does that date appear to have any significance. As I have pointed out above I do not credit records produced by Respondent nor the testimony of Mr. Adkins. In my opinion these documents have no evidentiary value but serve only to cast doubt on the evidence produced by Respondent. Respondent admits that it has never recalled Minnie Bourne Lane and Adkins testified that he would not con- sider her for reemployement with the Company because she complained when he shifted her from job to job and asked to be paid the average pay. Atkins admitted that other employees also complained when shifted from job to job and that the average pay system was set up because it was impossible for a competent operator to make production when she was shifted from one job to another unless she was kept on the new job for a long enough period of time to enable her to achieve competence. Average pay, therefore, is the Employer's means of com- pensating the employee who is competent enough to do the various jobs required and could be assigned them when the need to produce on various jobs was urgent. It appears to me that Respondent's position in this regard is self-defeating. By shifting Minnie Bourne Lane to various jobs and paying her average pay, Respondent appears to have demonstrated her competence and value to the Em- ployer. Letha Tyler was employed by Aynor in March 1962, as a sewing machine operator. At the time of her layoff 12 Stitching Room Supervisor Paul Adkins testified concerning the discharge of employees under his supervision who were discharged because of the alleged house cleaning orders of Martin Under cross-ex- amination, Mr Adkins demonstrated that he had no independent knowledge of the production of the employees who were discharged, but relied on company records When it was pointed out to him that his testimony was contradicted by the records which he himself identified, he testified that the records were incorrect In view of the self-contradictory nature of his testimony in this and in many other respects and of his demeanor on the witness stand, I do not credit any of Mr Adkins' testimony except to the extent that it is corroborated by credible evidence. Furthermore, his testimony clearly revealed that the company records, which were introduced through his testimony, were of little more value than was his verbal testimony. For example, the Employer produced ter- mination slips indicating that certain employees were discharged for low production, and production records which on their face indicate, in some instances, that the same employees quit, in other cases, that the em- ployees were terminated after failing to show up for work for periods of weeks Adkins identified two different termination slips for Letha Tyler both of which he admits signing and each of which gave a different reason for the termination. Adkins testified that he could give no explanation, but that he signed only one termination slip for any given employee Respond- ent, during the investigation, furnished a copy of the South Carolina Em- ployment Security form for Minnie L. Bourne to the Regional Office, which stated that the employee was separated for lack of work, with the notation "style exhausted, job discontinued " Thereafter at the hearing, Respondent furnished another copy of the same form with the language "due to lack of work" crossed off This does nothing to enhance the credi- bility of Respondent or of its records 11 Minnie L Bourne and Minnie Bourne Lane are the same person. 14 The production sheets for Minnie Lane were not among those Respondent chose to produce 1 " See fn 12, above 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she was sewing buttonholes in ladies pant, She testified that in addition to sewing buttonholes she had done bar tacking and sewing buttons on pants and consistently made production She had been employed through the time when the plant was making blouses and had done the same work with these blouses On pnoi occasions em- ployee Tyler had been laid off when work was slack for part of a day or a day or more and had been called hack to work On June 16 at 11 45 a ni , there were 10 girls sewing buttons and buttonholes Super visoi Adkins came to Tyler at her machine and said he was going to have to let her go at noon and she could clock out and go home He said that it was not on account of her work but that work was running low and that she would be recalled She testified that he said nothing about the job being discon- tinued or the style exhausted She further testified that she had worked mostly on Capri pants that had one but- tonhole only and that she was not aware of any change in style or exhaustion of work at the time of tier layoff Su- pervisor Adkins testified that when he had had to move Tyler from job to job. she complained, and that she al- ways insisted on average pay when ,he moved to a new job He admitted that other employees also com- plained when they were moved from job to job, and in- sisted on average pay as is discussed ahovc Adkins testified that Letha Tyler as well as Minnie Lane and a third employee were all laid off on .1 une I). because of the fact that work ran out Letha Tylu had been working on pants that required a tab to he sewn on them with a number of buttons and that that style i an out, and that the remaining style had only one buttonhole and no tab This is contradicted by Tyler's testimony that ,he had been working on pants that had only one buttonhole Adkins testified that Tyler was discharged because of her bad at- titude. because she complained when sht was moved from job to job He admitted that he might have told her that she was laid off and that she would Fe called hack when work picked up Adkins testified that on June 16 when he dismissed Tyler, he filled out a termination slip He identified a copy of one handed him by counsel for the General Counsel which was dated July 13, 1965, and gave as the reason for termination, "did not like any job she was i-,iven to do " He testified that he filled out only one such ter mination of employment Counsel for the General ( oursel then con- fronted him with another termination of employment, with his initials, dated June 16. 196 5 hearing Letha Tyler's name The explanation on the secon,l termination slip was, "Job discontinued, style cxhaumcd " Adkins was unable to explain why there were two or when the first termination had been made out He .I timed that he had made out only one termination and tho on June 16 In fact, he was unable to explained anything about the two disparate documents. In my opinion th-, is one more example of the unreliability both of documentary evidence and of testimonial evidence from '11r Adkins I place no credence whatsoever in erthe, docu-nent I conclude and find that both Letha I ylci and Minnie Bourne Lane were discharged because of their union ad- vocacy I cannot ignore the fact that Martin had informed the employees that he did not want them •o take union literature, or that he and Adkins both admittedly engaged in surveillance of the union organizers' lea'leting opera- tion every time they appeared I can only Assume from these facts that Respondent was a%erse to having em- ployees accept union literature, and when n the face of this expressed aversion, these two employees, Tyler and Lane apparently made a point of accepting literature on June 10. I believe that Respondent marked them down for discharge It is incomprehensible to me that at a time when Respondent was professedly engaged in a campaign to bring up the level of productivity of his employees. these two employees who regularly made a bonus because of their productivity, were discharged on excuses which were in turn unsupported by the evidence I be- lieve and I find further that when these employees at- tended the union meeting at the Live Oak Motel, which was kept under surveillance by Respondent, they lost any chance of being recalled from their layoffs, and in fact, they never were Even if their layoffs were not dis- criminatory. the failure to recall them certainly was It is clear that in the past, at Aynor, employees laid off for lack of work were regularly recalled Nevertheless, these em- ployees have never been recalled, although other em- ployees laid off at or about the same time went back to work, some of them as soon as the next day. I believe and I find that Lane and Tyler were discharged because of their union activity. and in violation of Section 8(a)(3) and (I) of the Act Harry T Ration Harry Ration was first employed at the Aynor plant in May 1964 He continued working until April 1965 Ration had been first employed as a presser and then as a service boy on the line In April he discovered that the other service boys had been given a raise and he had not, whereupon he quit He returned a month later and was reemployed as a presser, in which job he continued until his discharge on June ?8 Harry Rabon was the only male employee to attend the meeting at the Live Oak Restaurant on June 17 The fol- lowing day Ree Graham, the supervisor of the shipping room, came to Ration and accused him of attending the union meeting the night before Graham said. "I know that you attended, there was about 17 head of women at the meeting," and that Ration might as well go ahead and tell him because Martin had a list of names in the office and had said that Ration's name was on it Graham ended telling Rabon that "if he kept on messing with the Union he would have to peddle fish and sweet potatoes for a liv- ing The next day, the 19th, Ration, who is a very young man, got into a fight after working hours in a bar and had his ear severely bitten by his opponent. He came to work the following day and his supervisor Dorothy Jordan, told him that she thought that his ear was infected and sug- gested that he go to a doctor The next morning, Tuesday. Ration called the office of the Employer and talked to one of the office girls, Pearl Harway, asking her to tell Dorothy Jordan that he was going to the doctor with his ear Rabon stayed out of work 4 days, taking a shot each day He returned June 28, and when he went to hi, machine, Su- pervisorJoidan sent him to Martin's office where Martin asked him where he had been Rabon answered Martin that he had been sick with his ear and went to the doctor Martin said "You didn't let me know I got someone else in your place " Ration told him that he had called the of- fice girl and explained what had happened and where he would be and Martin simply walked out of the office and told the office girl to give Rabon his time (his check). Rabon testified without contradiction that on previous occasions he had been absent on account of sickness or injury and had been permitted to go hack to work and that MARLENE INDUSTRIES CORPORATION 719 on previous occasions when he was out he had called Johnny Mae, another office girl, but had not called his su- pervisor, Dorothy Jordan. Respondent contends that Rabon was discharged because of his failure to "regularly" contact his Employer and advise the Employer of his physical status. Respond- ent contends that his absence "raises a strong suspicion that he was either malingering or that he was intoxicated and that it is uncontroverted that the Company was in need of pressers at this time due to the shift to the produc- tion of winter style garments which take longer to press." After the union meeting at the Live Oak Restaurant, Assistant Supervisor Elnita Rabon asked Harry Rabon (no relative) whether he had not attended the union meet- ing. He admitted that he had and Elnita said "Well, you know you are going to get fired." On June 21 the union meeting was held at Betty Ger- rald's house. Harry Rabon met with some other boys at the Loris plant to take them to the meeting. Tom Mahoney and Lamar Squires, admittedly supervisors, in a car driven by Mahoney, parked nearby. When the boys left, Mahoney's car followed Rabon's. Rabon turned off the road one time and Mahoney passed him, Rabon pulled back on the road and went in another direction, at- tempting to lose Mahoney, but before he got to Betty Gerrald's house he found Mahoney behind him again. As the boys went into Betty's house Mahoney drove by the house and then came back and passed it twice more. The meeting was on the front porch, which was lighted. Among those present at that meeting were Betty Gerrald, Christine Sellers, Ruth Gerrald, Barbara Smith , Geral- dine Alford, Carol Cooke, Edna Gerrald, Harry Rabon, Letha Tyler, and Stanford and Mary Roberts. I conclude that Rabon was discharged because of his union activities. Respondent does not seriously contend that it was not aware of the fact that he was engaged in union activity but contends that this does not insulate him from his duty as an employee. However, it is uncon- troverted that under almost exactly similar circumstances in the past Rabon had been absent for a period of time without calling daily to inform the Employer of his absence and that he had called the office girls rather than his supervisor. It is also clear that Dorothy Jordan, Rabon's supervisor, knew why he was absent. In fact it was she that suggested that he go to the doctor when she saw him at work on June 21 and she admittedly got Rabon's telephone message from the office girl. Respond- ent contends that its pressing department was badly in need of hands. It seems strange, therefore, that it should choose this occasion to change its rules as to calling. (There is no evidence that the rules were ever promul- gated to the employees.) I find that Respondent's pur- ported reason for discharging Harry Rabon is not sup- ported by the evidence and that against the background of all the events at the Aynor plant, there is no reasonable inference I can draw but that Rabon was discharged because of his union activity I find therefore that the discharge of Harry Rabon was violative of Section 8(a)(3) and (1) of the Act. is Ruth Gerrald, Edna Alford Gerrald, and Barbara Smith Four girls from the stitching department were discharged on July 16, allegedly because of high makeup or low production (the two terms are used in- terchangeably) and allegedly pursuant to the "house cleaning" orders given Martin by Dansky and passed down from Martin to Adkins and the supervisors. These four were the two Gerrald girls, Ruth and Edna, Barbara Smith, and Carol Cooke. All four girls were engaged in union activity. Ruth Gerrald and Barbara Smith attended the June 17 meeting at the Live Oak Restaurant which was the object of surveillance by Respondent. In addition Ruth Gerrald and Barbara Smith each had union meetings at their homes. Edna Gerrald attended the June 21 meeting at the home of Betty Lou Gerrald which was the object of intensive curiosity displayed by Supervisors Lamar Squires and Thomas Mahoney. Carol Cooke at- tended this meeting also . 17 Edna Gerrald was asked on June 21 by her supervisor, Hucks, whether she was going to the union meeting that night, and acknowledged that she was. The next day Hucks asked her if she had gone to the meeting and Edna Gerrald again acknowledged that she had done so. It is clear that each of the employees discharged on July 16 were known union adherents. Ruth Gerrald had been employed since June 1963. Her main job apparently was sewing pellon innerfacing bands on the bottom of pants. In addition she pieced bands. She worked under the supervision of Shelby Hardy and Eu- nice Roberts; Hardy was her supervisor at the time she was discharged. She was I of about 10 or 12 pellon sewers and seldom made production. She testified that other employees had the same problem sewing pellon and that her production was just as good as theirs was. Ruth Gerrald had received no written warning or makeup notices at any time during her 2 years of employment at Aynor until the day of her discharge when she received a letter warning that she would be discharged if her produc- tion did not pick up. This letter was mailed July 14, but not received until after her discharge. She testified that she had greater difficulty making production on piecing bands than she did sewing pellon and that after the June 17 union meeting she was assigned a larger amount of piecing of bands than before. Supervisor Mildred Hardwick testified that Ruth Ger- rald was employed primarily as a band piecer under Hardwick's supervision. She testified that for a period of time unspecified Ruth Gerrald worked for Eunice Roberts sewing pellon but that she was returned to her job piecing bands and on that job had high makeup each day whereupon Hardwick recommended to Adkins that she be terminated for high makeup and she was termin- ated.'" Stitching Room Supervisor Adkins testified that Ruth Gerrald had two jobs, sewing bands and sewing pellon. He testified that when he transferred her to sewing pellon she did not make production , and he told Supervisor Roberts to give her a lot of attention , but although 11 Rabon's termination slip gives the date of his termination as June 21, the last day on which he worked rather than the following week when he was fired This is another example of the lack of probative value of Respondent's records 17 None of the charges named Carol Cooke as an alleged disenmmatee nor did the complaint '" Hardwick testified also that Ruth Gerrald spent inordinate amounts of time in the restroom , spending 20 to 30 minutes several times a day. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roberts worked with her "each and every day" she stayed on makeup, whereupon he terminated het Roberts, although she testified at Lonsiderable length about other employees, did not testity on direct examina- tion concerning Ruth Gerrald On cross-examination the General Counsel attempted to question Roberts about Ruth Gerrald and Respondent's counsel objected Respondent produced a document at Genet al ( ounsel's request alleged to he the termination slip for Ruth Ger- raid. When the General Counsel attempted to examine Roberts on the basis of the document ounsel for Respondent objected on the ground that tht witness has "shown no real relation" and would hale no knowledge of it.''' Hardwick testified that Ruth (tetrald always had makeup but that in the spring of 196 it got worse and continued to get worse thereafter She testified that Ruth Gerrald had makeup every day and she discussed her makeup with her every day The daily production sheets for Gerrald which covered a period Decemher 2, 1964, to her discharge, were among the few that Respondent chose to produce They do not hear out the testimony of Hardwick They reveal that she had makeul, eery week from February 10 onward On Fenruat % !0 she made bonus, the only time covered by the pioou tion sheets The sheets also reveal that there is no significant vana- tioi in het makeup except foi a period het" :en April 15 and May 5, when it ran high, theiLaftel het makeup decreased except for occasional weeks On the third week prior to her discharge her makeup was 20 cents. the week prior to that 59 cents, the week prior to that $5, and the week prior to that (June 16) $3 76 the week of June 9 was $3 08, on the week of July 14 Rath Gerald worked 32 hours and had makeup of is 10 01 1 wo of the days she was on average pay On hei last da, of employ- ment, July 15, she had makeun of S4 -; Fhis IS con- sistent with her testimony that she was plait d on piecing bands with a difficult material and 5-as unable to make production In the week of Jul} 14 she wa, on average pay 2 days and failed to make production '_ days the week of July 7, she made production _' day , missed I', by a total of 20 cents the other 2 In shoat, in the last 2 weeks of het eniplu, ment, there were only 3 days in which Ruth (jet told nused produc- tion by any substantial amount, 3 days In which she was on average pay, and 2 days fit which she n, ide produc- tion The production sheets do not ii seol t'ithei what work Ruth Gerrald was doing or who het supers isor was at any given time It is impossible to compote her work with that of others doing the same « stmt ar work in- asmuch as Respondent did not choose to furnish the documents called for by the General ( oims_•I of to sup- port its witnesses' statements with documentary evidence While Ruth Gerald was in in opinion a frightened and contused witness, I find nt Thing in her testimony inherently incredible On the othet hand, the witnesses whom Respondent called who could have rebutted Ruth Gerald's testimony do not do so, they contradict each other and in turn are , ontta, acted by the records as well as Ruth Geirald's tcstunw \ I do not credit them 1 do credit Ruth Gerrald Edna Gerrald was first employed in \ noes, 1961 Dur- ing the period that the plant made di ess. s_ s+u made belts When the plant switched over to the manufacture of pants, she was assigned to the job of setting bands In the summer of 1964, when she was under the supervision of Mildred Hardwick, Hardwick told her that Adkins said that if her production did not pick up there was going to he a change Edna Gerrald got up and went home After about 5 weeks, Supervisor Adkins commenced calling Edna Gerrald at a neighbor's home (she had no telephone) He called sometimes twice a day, eventually reached her, and asked her to come back to work She came back to work after about 5 months, stipulating that if she came hack to work they would have to accept that what she handed in was what she could do Adkins replied that that was all they expected of her. Edna Ger- rald testified that thereafter she received no complaints from the plant manager or the assistant plant manager about her work On her return to work in August 1964, Edna Gerrald was assigned to the section supeivised by Earle Hucks for whom she worked until her discharge She testified that during most of 1965, she was working on material on which she could not make production, but that she received no complaints A day or two after the union meeting of June 21, at- tended by Edna Gerrald, Earle Hocks commented to Edna Gerrald that she had called the employment office and was told that if the plant closed on account of the Union that the employees would not be able to draw unemployment Edna Gerrald replied that she did not think the plant would close Earle Hocks replied that the Meltzers had said that they would not operate if the Union came in, that they would close the plant Edna Gerrald testified that the production of the other girls in her area was also low She testified that on July 14, she received a letter from Martin warning her that if her production did not pick up, the Employer would have to discharge hei She had never received a written warning before, nor had she heard of any other employees in the plant who had 20 Supervisor Hucks testified that Edna Gerrald worked under her for several months prior to her discharge, that Edna was one of 8 to 12 girls working for her on sewing bands and had the highest makeup of any of them She testified also that she discussed makeup with Edna all the time she had makeup Supervisor Hucks testified that Edna made production when she sewed denim and complained when she worked for handed stretch fabric that she could not make production with it Hocks testified that the other operators also complained about that material. Hucks testified that she came to the conclusion that Edna would never make production on the bonded material and recommended that she he discharged Hucks also testified on cross-examination that the other girls dropped in their production when the bonded fabric began, but that they gradually worked back up until they were hack in production on the fabric too She testified that she did not recall filling out termination slips for Edna Gerrald or for ( hristine Sellers As to the quality of Edna Gerrald's work, she testified that it was as good quality as she had eset seen. but that she could produce only about half what she was supposed to do The production records for Edna Gerrald indicated that she made a bonus for 5 weeks between the first of '" Because of the urunnst.tnces sunoundmg u^c do^u cunt I recessed it It is dated August 3 1965, and is signed by Mildred Hei dwic k "' Supervisor Hardwick testified about Fdna t,err,, d onls that Fdna had worked fat her ahout a year that she did not recalI whether any pant of the time that I dna worked for het was in the year 1965, and that Fdn,t alwass had makeup during the pea rod she worked for Hardwick MARLENE INDUSTRIES CORPORATION 721 January and her discharge in 1965. From June 1 until her discharge on July 16, she was on average pay a total of 13 days, she was absent 5 days and she failed to make production 15 days. Only one other employee doing similar work, Dorothy Hardwick, was among those whose records were produced by Respondent. Dorothy Hardwick was, according to her termination notice, discharged on June 11 because of high makeup and poor quality. However, her production record shows that while her production was worse than Edna Gerrald's she was carried on the payroll from June 11, the last day she worked, until the week of July 21, and terminated during that week; no explanation was given for this fact. Whether Respondent proved its defense depends on whether Edna Gerrald was in fact the worst among the band sewers. Respondent has the records which would reveal this; however, Respondent chose not to present them. The only record presented reveals that at least until up to June 11 a less efficient employee worked under Earle Hucks doing the same work. Accordingly I can only infer that Respondent's records would not support Supervisor Hucks' testimony.21 In addition, Respondent offered no explanation nor at- tempted to controvert Edna Gerrald's testimony regard- ing the incident of her quitting in 1964. 1 infer that it is dif- ficult to make production in band setting particularly with the bonded stretch fabric that the plant was using for sub- stantial periods of the winter and spring of 1965. 1 believe that rather than being the worst of the bandsetters, Edna Gerrald was a valued employee and Supervisor Adkins' somewhat frantic attempts to get her to come back to work in August 1964 bear this out. I believe that she con- tinued to be a valued employee until the Employer ascer- tained that she was interested in the Union. I see no magic in the fact that she was unable to make production; it is clear that production on some jobs was more difficult than on others and there is no evidence that anyone made production setting bands.22 Barbara Ann Smith was employed at Aynor for 9 or 10 months as a blindstitch operator in the sewing depart- ment. Until the last month of her employment she worked under the supervision of Shirley Barnhill. She was trans- ferred to the supervision of Mildred Hardwick shortly after the June 17 meeting at the Live Oak Restaurant, which she attended. She testified that she had made production only three or four times sufficient to get a bonus. She testified that her supervisor would come to her perhaps two or three times a week some weeks and perhaps not at all other weeks with the daily makeup sheet in which her name was circled with a red pencil to indicate that she had failed to make production. Barbara held a union meeting at her home on July 12. The next day Hardwick, who was then supervising her, commenced checking her work more carefully than she had in the past. One day, Smith testified, she had a bundle of 20 pieces and Hardwick checked each piece in the bun- dle for flaws in the work. Normally the supervisor checked the top piece in the bundle and no supervisor had ever checked Smith's work in the manner that Hardwick checked it out after July 12. On July 14, she received a letter from Plant Manager Martin warning her that she would be discharged if her production did not improve, and July 16 she was discharged. Supervisor Hardwick testified23 that Smith began hav- ing large amounts of makeup at some undetermined time in the spring and that coincidentally she observed her spending large amounts of time in the restroom. She testified, in fact, that in April, May, and June Barbara Smith would go to the restroom every 2 hours and would stay at least 25 or 30 minutes.24 Asked about the trend of Smith's makeup during the month of July, Hardwick testified that her makeup went up high as result of which she recommended to Adkins that Smith be terminated. Hardwick testified that she kept track of makeup of Smith and other employees under her supervision by a daily makeup sheet which listed the daily production of each employee in the section and on which the name of each employee who failed to make production was circled in red. She identified an example of such a makeup sheet, which was received in evidence. She testified further that the daily makeup discussion with the operators had been in effect in this factory for 8 or 10 months prior to July 1965. On cross-examination Hardwick testified that Barbara Smith worked for her a year or maybe more, that Barbara Smith made production for about her first 8 months, and that she had talked to her each day for 5 months or more, when Smith had had makeup the day before. Hardwick says she recommended that Barbara Smith should be discharged for high makeup and she had also recom- mended that Ruth Gerrald and Drunella Lewis should be discharged. She testified argumentively that those three girls were discharged on different days. Although she could not recall the period of time within which she made the recommendations for their discharges, they were not all within a week of each other. Hardwick testified also that she sent the three girls separately to Adkins to be discharged, although all the girls and Adkins admit that they were discharged at the same time. Supervisor Hard- wick also testified that she had daily discussions with Ad- kins concerning the makeup of these girls. With the ex- ception of Ruth Gerrald, Barbara Smith, Carol Cooke, Nann Martin, and Drunella Lewis she did not recall any other employees in her section who were let go for high makeup. Under further cross-examination, asked when Barbara Smith started to going to the bathroom for long periods of time, she answered "my estimation might be wrong, it was maybe two or three or four or five months or more, it might have been more" and that during all this period of time Smith's makeup was high. The Employer furnished the production records and termination slips for Barbara Smith. They both showed 21 Supervisor Hucks' testimony was difficult to believe in other respects She testified for instance that although she heard speeches by Dansky and Martin after the union organization started that she never heard either of them speak about the Union and had no idea what they did say I find this hard to believe Andrew H. Brown, a merchant from the town of Aynor and a member of the Development Corporation, credibly testified that in 1964 at a meeting between the board and Vice President Dansky he asked how production rates were set, because employees had asked Brown if he could do anything about having them lowered Brown quotes Dansky as saying that "Aynor used a woman like she was a rubber band to see how far they could stretch her before she busted and that was the way they Set their goal up on the girls " While Dansky denied this statement, I credit Brown who appears to have no interest, financial or otherwise, in this proceeding 21 Although Hardwick supervised employee Smith for only I month, she was the only supervisor called to testify regarding Smith's work '' There is no explanation for her knowledge concerning Barbara Smith's attendance in the restroom during April and May and the first part of June when she was not under Hardwick 's supervision 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that her hiring date was October 19, 1964. Her produc- tion figures show that she earned a bonus the week ending May 19. Thereafter she had makeup under $6 weekly for the next month and twice that thereafter until her discharge. While it is clear from the records Smith in- curred substantial makeup, it is impossible to determine whether she was the worst, or among the worst , or even below average . The testimony of Hardwick is self-con- tradictory and is contradicted by the Company's records and by the testimony of Smith. I credit Smith's testimony. I find that the Employer's premise that she was one of the worst producing employees is not supported by the evidence and I can conclude only that her layoff was in fact determined by her participation in the union or- ganization. I conclude and I find that Ruth Gerrald, Edna Alford Gerrald , and Barbara Smith were each discharged because of their union activity and in order to discourage union activity among the employees . As I have found above, Respondent contends as to each of these and other employees considered herein that they were discharged pursuant to a "house cleaning" campaign instituted by top management. It appears from the testimony of each of the supervisors that their knowledge of the production of each of the employees was gleaned from the daily makeup report . A copy of such a report was placed in evidence by Respondent although it did not relate to the period of time here under consideration . When the General Counsel first became aware that Respondent was relying on this defense , he called for the records of the 50 to 75 employees who were alleged to have been discharged because of their low makeup. Respondent declined to furnish these records ; General Counsel thereupon subpenaed the records . Respondent still declined to produce them . Rather than delay the matter Geneial Counsel proceeded with the hearing. Respond- ent then chose to comply with the subpena , in part, bringing in 31 records of his own selection but declining to bring in any other records. I have discussed a number of those 31 records furnished. I believe it is enough for our purposes to say that they do not support the assertion of Respondent that there was a general house cleaning. Martin testified that from 50 to 75 employees were discharged in the "house cleaning," and Adkins stated that the first was Geneva Allen. Of the 31 records produced, 8 concerned employees discharged before Al- len, 10 more apparently quit, 3 were discharged for poor quality, and only the alleged discriminatees, Carol Cooke, whom I have discussed above, and Eunice Brown remain. Respondent's record evidence is self-defeating and its testimonial evidence is unreliable . If there were a lawful reason for the discharge of these three girls , Respondent did not adduce substantial evidence to support it. I can infer therefrom only that the real reason for the discharges was violative and I so find. Pauline Strickland Pauline Strickland was employed by Aynor in the finishing department from January 1963 until July 23, 1965. She worked first as a trimmer and inspector for 5 or 6 weeks, then turned pants for 6 or 7 months, after which 2-, Strickland went to Mr Bagnell, druggist in Aynor and a stockholder and member of the grievance comrttee of the Aynor Development Cor- poration, and asked him about getting her job back He said he would talk she worked as a service girl in the boxing department for about 1 year under the supervision of Dorothy Jordan. Then she was put on tagging, which consists of hanging tags attached to strings on the buttons of the pants, and worked on tagging on and off until her discharge. At all times when there was adequate work Strickland made production on tagging. She was unquestionably a fast operator on any work that she did. She had been laid off near the last of April 1965, for a period of 3 weeks during which time there was not enough work for taggers. When she was recalled, from four to six girls worked on tagging, and she worked on tagging until July 21. On that day, several of the girls were told to check out for an hour or two. Supervisor Jordan came to Strickland at 8:45 in the morning and told her that Plant Manager Martin had ordered her to be transferred to a presser. Strickland refused to go on the presser because, as she testified, she had never pressed and she had had fainting spells at the plant and had in the past told Jordan that she would not work on the presser because of the heat. Jordan told her that it was not Jordan's idea to put Strickland on the presser, but it was Martin's. Strickland asked if she had to take that or quit. She was told yes. Strickland clocked out and went to the office to see Manager Martin and asked him why he wanted her to take the presser. She told him that Dorothy Jordan knew that she would not take a pressing job and Martin said take a presser or "that was it." When she declined again to work on the pressing machine, Martin gave Strickland a layoff slip which stated "Refused to accept work available." She left the plant and has never returned.25 Supervisor Jordan testified tagging work ran out and pursuant to a policy of moving the girls in the finishing de- partment from job to job when there was not sufficient work for their regular job, she transferred Strickland to pressing because she was desperately in need of two more pressers. She had no knowledge that Strickland would not or could not do the pressing job. Strickland had never fainted to her knowledge, but had "spells." Jordan denied discriminating and testified that she had not called Strickland back, although Strickland was an excellent em- ployee, because she did not recall people who had quit. Jordan also testified that two more of her girls quit the fol- lowing week and later another one quit. However, in Au- gust a new girl had been hired and the tagging crew had been built up by transferring girls from other jobs. Seven taggers were working at the time of the hearing. Jordan also testified that when she told Strickland to go to the pressing job, Strickland quit. Jordan gave that as the reason she did not offer Strickland another job. When asked on cross-examination about the Employer's policy of rehiring people who had quit, with particular reference to Harry Rabon and Edna Gerrald, Strickland drew a distinction between quitting and quitting when an em- ployee was offered another job. Plant Manager Martin was not questioned about the discharge of Strickland. Strickland was one of the employees who went to the Live Oak meeting on June 17. The following day, Super- visor Jordan interrogated Squires about who attended the meeting and when Squires declined to name them Jordan named each of them with the exception of Mildred Page. with Junior Hucks, the president of the Development Corporation, but she never heard from him on that subject MARLENE INDUSTRIES CORPORATION 723 At this time Jordan said that she was so disappointed when she found out that Squires and Helen and Linda Al- ford went to the meeting that she could have cried.26 The General Counsel appears to contend that no women were employed in pressing. At the time Strickland was assigned to the pressing job another girl was also as- signed to it. The other girl took the job, but quit after 2 weeks. However, both Jordan and her assistant, Elnita Rabon, testified without contradiction that more than half of the pressers at the Aynor plant were women. I conclude that Strickland was discharged, by being put into a position where she had a choice of doing a job for which she had no training, and which she feared, or quitting. I conclude that her discharge was motivated by her attendance at the June 17 union meeting. Respond- ent's failure to recall her, although taggers were needed, and she was a valuable and productive employee, is in- consistent with the alleged need for more productive help. Other employees who quit were recalled, e.g., Harry Rabon and Mary Roberts. Supervisor Jordan's alleged "rule" to the contrary seems to have been invoked only in the cases of Strickland and Mary Roberts. An explana- tion of this appears in Jordan's admission to Annette Squires that she would call back Mary Roberts but Mar- tin would not let her, and that she (Jordan) felt that none of Stanford Roberts' family would ever work there again. The only employees who went to the June 17 meeting who remained on Respondent's payroll were the Alford sisters, who, coincidently, were the only ones who did not join the Union. Jordan admitted that some girls are given the option when the work runs out of either taking another job or being laid off. She did not explain why this option was not available to Strickland. Against the background of union animus that I have found at the Aynor plant, and in con- sideration of all the circumstances, I am convinced that the only inference possible was that Strickland was discharged because she attended the June 17 meeting. Accordingly, I find that her discharge is violative of Sec- tion 8(a)(3) and (1) of the Act. Nannie Martin Nannie Martin27 was employed as a second seamer at the Aynor plant from October 1962 until July 22, 1965, except for a layoff at the time the plant switched from the manufacture of blouses to the manufacture of pants. She worked under the supervision of Mildred Hardwick until 2 or 3 weeks before her discharge when she was trans- ferred to the supervision of Esther Dyson. Nannie Martin was a member of the Union's organiz- ing committee and attended the meeting of June 10, 1965, at the Conway Motor Inn. Thereafter, on each occasion that the Union handed out literature she was among the employees that accepted it. This was noted by Plant Manager Martin. On the third occasion the Union hand- billed the plant, she accepted a handbill. The next day, Hardwick, who was then her supervisor, came to her and asked if she had taken a paper from the union people. Martin said that she had and Hardwick told Martin that she had better not be messing with that thing because things were getting serious and a lot of people would be out of their jobs. Martin answered that if they were out there handing out anything that she was going to stop and get it. Hardwick just walked off. Thereafter, on July 15, the Union again handbilled the plant and Nannie Martin stopped and took the handbill. On that occasion Plant Manager Martin was standing close to the highway, fac- ing the car in which Nannie Martin was riding. Nannie Martin received a notice through the mail on about July 15 that her production was poor and that she would have to improve it or be discharged. On July 22, she was discharged by Adkins who told her that her production was low. He said at the time that there were others who had low production and he was going to lay them eff too; however, there is no evidence that others were laid off on that day. Sometime in the early part of July, Nannie Martin had a conversation with Hardwick in which she told Hard- wick that she would like to have a layoff. When she was laid off, by Adkins, she told Adkins that she would work on her tobacco. 28 Respondent contends that Nannie Mar- tin was laid off for low production and that in addition she was laid off because she asked for a layoff. Supervisor Hardwick testified that when she did not give her a layoff in the early spring, Nannie Martin's production dropped and continued to go on down. On cross-examination Hardwick expanded this statement stating that Nannie Martin requested a layoff every time she walked by her, and later testified that Martin's low production com- menced before she first asked for a layoff, but not as much as 2, 3, or 4 weeks before.29 Nannie Martin's ter- mination-of-employment slip and production records were among those Respondent chose to produce. Although Adkins testified that he himself discharged Martin, and although it appears she was not working under the supervision of Mildred Hardwick at the time of her discharge, her termination slip is signed by Mildred Hardwick and apparently made up by her. Strangely enough although she was terminated on July 22, 1965, the termination slip was dated August 16, 1965. Although Hardwick had testified that Nannie Martin's makeup increased commencing in the early spring and continued high until her discharge, the Company's production records show that she exceeded production every day from May 19 until June 12. Thereafter, for the week ending June 16, she had $2.50 makeup, the next week $1.62 for a 32-hour week, $5.10 for a 24-hour week, $2.67 for a 27-hour week, $11.68 for a 40-hour week, and $5.62 for a 28-hour week. While it is clear that Nannie Martin was not the most productive employee, it is by no means clear that she was the least. The records of no comparable employees were produced. There is no evidence that other employees were laid off although Assistant Manager Adkins told Nannie Martin that others with low production were going to be laid off. I conclude that Respondent's failure to adduce evidence in support of the assertion that Nannie Martin was among the worst producers, coupled with the fact that the evidence of Supervisors Adkins and Hardwick -'s Jordan's denial that she interrogated Squires is not credited. Jordan admits talking about the union meeting to Squires but contends that Squires came to her voluntarily and told her who had attended the meet- ing Jordan admitted that she knew that some of her girls had attended the meeting and that she had been told by one of the Alford girls that some of her girls had attended the meeting '' Not related to Manager Martin 'x Nannie Martin's husband is a farmer and grows tobacco '" The Company's policy regarding layoffs was expressed by Super- visor Hucks, who stated that as long as (her) production was all right and (her) quality was all right and we had work in the plant that she could do, we could not give her a layoff 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conflicts with the documental y evidence produced by the Employer, warrants the infeience that Hardwick',, warn- ing to Martin not to mess with the Union and that people would be out of Jobs because of it was earned out when Martin continued to accept literature outside the plant In the face of what is nothing less than a e inpaign by the Employer to keep the employees tioni wv communica- tion with the Union at the A'nor plant, Nannie Martin's insistence that she would take ant, literature the Union had to offer, marked her, in my opinion ,,s an employee who was interested in the Union I belie.( and I find that this led to her discharge. and that the aheeation that she was discharged because she had high mai.etip is a pietext, and I so find ( hristine Sellers Christine Sellers was first employed by vynor in April 1962, and worked on night shift until the last of July of that year She was recalled in January 11)63 to the day shift, where she worked in the stitching department as a sewing machine operator continuously until her discharge in August 1965 At the time of her discharge, her super- visor was Earle Hucks Her particular Job consisted of met row nig ends and bar tacking. Both of these operations have to do with the waist band of ladies pants. From the week ending February 74 until July 7, 1965, Christine Sellers exceeded production e,ich week The week ending July 14, she had $1 67 makeup, the follow- ing week $10 18 makeup, the following week $5 82 makeup, and for the 3 days of the week ending August 4, $3 92 makeup She was discharged August 2 During July, an occasion arose w here employee Sellers had piled up her workbench with work and turned to the girl sitting beside her and asked if she could lay some of her work in the other giri.'s pen until she could get some- body to move some of it The gu I agreed and Sellers moved some of her work into the other gnl's pen A few minutes later, Supervisor Hucks dime to hei and said, "Christine, don't be talking to Ginny Haidwick. Mr Ad- kins has just got all over me " Sellers explained what the conversation had been. "I Earle Hucks came hack in 15 or 30 minutes and told Sellers that they were moving her to another machine Sellers complained that the machine to which they were moving her was 'tot n tip" and that neither she nor the girl who normally operated the machine nor anyone else could make production on the machine, and suggested that if they insisted on moving her, why couldn't they move the machine on which she was working Supervisor Hucks said sht could not do that and that Mr Adkins gave the order • Whereupon. Sellers refused to move and when Hucks insisted asked for her pay and layoff slip. Hucks told Seders to clock out and go to the office. In the office, she started to clock out and Adkins told one of the secretaries to pay her up to that hour At this point Plant Manager Martin came in and asked what was the trouble" Sellers explained what had happened and asked to be permitted to work on the same machine that she had been working on Martin told Sellers "We cannot give you a layoff sl p or pay you without the work is out, or we don't have nothing for you to do. We have plenty of machines and plenty of work You go back out and I will get the machine fixed." Sellers insisted on going home because she was all upset and was told to come back the next day which she did The next morning when Sellers returned, Hucks told Sellers to work on another machine which was normally operated by Shelby Dix Shelby Dix had been absent the day before, but on this day had returned to work Sellers commenced operating Dix's machine and Dix operated Sellers' machine Sellers continued to operate Dix's machine for 2 weeks During that period of time she failed to make production on any day At the end of each of the 2 weeks she was sent a letter telling her that she had to improve production or she would be discharged Finally or. August 2, she was called to the office at 3 30 p in to talk to Adkins Adkins pointed out that she hac' a lot of makeup and had received two letters Sellers answered, "Yes. sir, but letters don't make production. I told you when you put me on that torn machine that I couldn't do what I had been doing on mine " Adkins answered, "let's don't get into an argument, they're making up your checks now " Sellers left the plant and has never been re- called Christine Sellers was one of the more active union ad- herents She attended the June 17 meeting at the Live Oak Restaurant and all but two of the meetings held at employees' homes, including the meeting at Betty Ger- rald's home which was observed by Supervisors Squires and Mahoney At the July 26 meeting at the home of Vivian Causey. employee Sellers arranged to have the next meeting scheduled for August 3 at her home During the intervening week, Supervisor Hucks stopped by Sel- lers' machine and said, "Christine, 1 hear you are having a union supper " Sellers answered, "Yes, and you are in- vited " Hucks walked away without replying In addition to attending union meetings, Sellers was ac- tive in distributing union cards at lunchtime and break and talking to employees about the Union She testified that her activities on behalf of the Union were heavier during the last week of her employment than they had been prior thereto because she was inviting employees to the union meeting scheduled at her home Supervisor Hucks testified that in June when school let out, Christine Sellers asked her for a layoff so that she could stay home with her children Hucks declined to give Sellers a layoff because they had work to be done Whereupon, Hucks testified Sellers commenced having makeup every day Hucks further testified that Sellers "had the highest makeup of any of the merrowing girls consistently " Hucks further testified that she had frequent conversations with Mr. Adkins concerning Sel- lers because Adkins wanted to know why her makeup was so high, but she states that she made no recommen- dations to Adkins concerning Sellers Hucks testified that she had no recollection of Christine Sellers' sewing on Shelby Dix's machine, and did not recall whether Shelby Dix sewed on Christine Sellers' machine She testified that Christine Sellers complained about the sewing machine that she was sewing on at this time, and a mechanic worked on it "I would ask her how it was and " There is no evidence that the Employei has _,vei had of entuiced a rule against employee , talking on the job MARLENE INDUSTRIES CORPORATION 725 she would tell me it was okay."31 On cross-examination, Supervisor Hucks stated that she had transferred Christine Sellers to another flow or group of machines sometime during the last month and testified that she complained only one time about the machine breaking down and they had a mechanic to fix her machine. Hucks further testified that she did not recall any other girls laid off who had been working for her, and did not recall whether or not she recommended any other layoffs during 1965. Supervisor Adkins, on his direct testimony, testified that he could hardly understand why Sellers' production deteriorated and that she had mentioned that her machine was not working properly. Whereupon he got a mechanic and for the next couple of days checked with her and she told him that her machine was all right. However, her production continued to slump and so he ascertained that she was spending a lot of time in the restroom, 30 minutes at a time and as high as five times a day; and that he had timed her on visits to the restroom.32 Supervisor Adkins was not asked nor did he testify con- cerning Sellers being shifted to Dix's machine. Employee Linda Collins, who had been employed at that time at Aynor and quit on Christmas Eve 1965, testified that she worked back-to-back with Christine Sellers and that Sel- lers' machine was changed prior to Sellers' discharge and that she heard Sellers complain to Adkins that she could not sew on that sewing machine. I credit Christine Sellers that her production problems the last 2 weeks were due to the fact that she worked on another machine on which she could not make produc- tion. I do not believe the testimony of Hucks or Adkins controverts Sellers' testimony and I find that Sellers' testimony is supported by that of Collins who appeared to me to be completely credible and to have no interest in the litigation. I cannot help noting that it would have been easy for Respondent to have controverted Sellers' testimony by adducing the records of Shelby Dix or producing Shelby Dix as a witness. This was not done. I can only infer that the records and Shelby Dix's testimony would not have supported Respondent's of- fense. I believe and I find that Respondent, in order to rid itself of an avid union supporter, and not having available to it the pretext that her production was poor, placed Sel- lers in a position where she could not make production by putting her on a faulty sewing machine and after 2 weeks discharging her. I note that even in spite of her difficulty with the sewing machine Sellers had less makeup than many employees who were retained over a long period of time, if the Company's production records are to be be- lieved. I believe and I find that Respondent's action was taken to rid itself of a union supporter and was violative of Section 8(a)(3) and (1) of the Act. Drunella Lewis Drunella Lewis commenced employment at Aynor in May 1962 when the factory was making ladies' blouses. When the factory changed over to the manufacture of pants, she was laid off for 3 weeks and came back to work as a second seamer, which she continued to do until July except for a period of approximately 3-1/2 months during which she was tacking stirrups for a special order. Although Lewis had arthritis in her hands, she was ap- parently an accomplished second seamer and regularly made a production bonus until July 1, 1965. During the week of July 1, she had 13 cents in makeup; the following week she had neither makeup nor bonus; the week of July 21, she had $5.05 in makeup; July 28, $2.34 in makeup for 24-3/4 hours, the week of August 4, she had $7.19 in makeup for 28 hours, the week of August 11, she worked only 2 days and had $3.12 makeup, the week of August 18, she worked 3 days and had 29 cents makeup and was discharged on August 16 for high makeup. Lewis testified that her failure to make production resulted from a number of facts; first, from July 1 on, she was assigned both second seaming and first seaming work but never had been trained in first seaming and because of her arthritic condition she was unable to make produc- tion doing both types of work. Second, she states that she was switched from one machine to another at various times during the month of July and was switched to a type of machine on which she had not worked before and which she did not know how to thread, wherefore her production was lowered. She testified that while she was required to work on the unfamiliar machine her regular machine was being used by another employee. Finally she testified that she was given many small bundles of work on which it is more difficult to make production and as a consequence her productivity decreased. To fill out the picture of harassment Lewis testified that she had been laid off early on July 7 and was not per- mitted to return to work until July 12; that she worked July 12 on the unfamiliar machine and failed to make production but on July 13 was transferred to her regular machine at her request and made production but was laid off that evening and not permitted to return to work until July 20. On July 20, she was again put on the unfamiliar machine, complained, and was put on a machine like hers but not her own and then moved again to a third machine but nevertheless fell only a few cents short of making production. Thereafter, she continued to have difficulty until she was laid off in mid-August. Stitching Supervisor Adkins testified that Drunella Lewis was not shifted from machine to machine except on one occasion when the motor burned up on her machine and she was shifted to another for a period of several days. Thereafter, she was shifted back to her regular machine and worked on it until her discharge. He testified that he had long been aware of her problem with arthritis in her hand, but his position apparently is that if she could not make production with arthritis he could not use her. He testified that he discharged her because she went into "a terrific makeup." Supervisor Hardwick testified on her direct examina- tion that Lewis worked under her supervision and was working under her supervision on August 16, 1965, at the time of her discharge. She testified further that Drunella Lewis had been on first and second seaming throughout the time she had worked there and that in December 1965 she was placed under the supervision of Esther 31 Supervisor IJucks left the employ of the Company in October 1965, voluntarily She does not appear to have a very clear recollection of the time with which we are concerned. She testified, for instance, that although she heard Dansky's speeches , she never heard him mention the Union and that she knew of the Company's position towards the Union or policy with regard to the Union, just from conclusions she would draw. She also testified that she did not remember filling out termination slips for Christine Sellers or Edna Gerrald, although the record contains copies of such slips signed by her In addition she recalled a speech by Martin in the plant, but recalled nothing of what Martin had said. 3' Adkins also testified that Barbara Smith , Carol Cooke, Margaret Dell Jordan, and Ruth Gerrald all spent excessive time in the restroom. 308-926 0-70-47 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dyson at which time her machine was switched with her. She testified that she recommended Lewis' termination because of high makeup and that her recommendation was followed and Lewis was terminated. On cross-ex- amination Hardwick testified that she had never given Lewis any layoffs, particularly in the last month of her employment, but that Lewis was doing poor production 3 or 4 months prior to her discharge. Later in her cross- examination she testified that Lewis' production was good only for about 8 months or less after she first started working there. She testified also that Lewis had no dif- ficulty threading the machine and that she had been trained in operating both machines and in doing both first and second seaming and she was aware of what Drunella Lewis was doing during the whole day. She testified further that she inquired every day why Drunella Lewis had high makeup and discussed it constantly with Super- visor Adkins. Still later in her cross-examination Hard- wick testified that Lewis never had a short layoff but went home early one day because she wanted to fix food for a church social and that was the only time she was off in the month of July. At this point she was asked whether in July Lewis wasn't placed under the supervision of Esther Dyson. She agreed but testified that she could ob- serve everything that went on in Esther Dyson' s section. It became apparent from her further testimony that she could not, and had denied the transferring of machines and the problem of threading the machine simply on the basis that it would have been impossible, but admitted that she did not know whether Lewis had trouble thread- ing machines while she was under Esther Dyson.33 The employment records for Drunella Lewis were among those produced As I have indicated above they showed that generally Lewis made production until July and that thereafter she fell below production by small amounts with the exception of the week of August 4, when she had $7.19 makeup in a 28-hour week. The records also show that she did not work on July 12, July 19, July 23, August 2, August 5, 6, and 9, and worked half days on July 22 and August 4, and 5 hours on July 5. 1 am not convinced that Drunella Lewis was deliberately harassed from July I onward by the assign- ment of small bundles and by the assignment of both first and second seaming. The work was running low during July and that first and second seaming and small bundles resulted from that factor and were assigned to the better operators. There is no question in my mind that Drunella Lewis was one of the better operators. Her records show not only that she usually made bonus but that she frequently far exceeded her production quotas. I find further that she is mistaken as to her history of layoffs during the month of July and that the long layoff concern- ing which she testified took place the first week of August rather than the first week of July. I believe that this was an honest mistake on her part resulting from the fact that over a period of time from the week ending June 23 until her discharge she worked no full weeks and averaged considerably less than 30 hours a week. I do not credit the testimony of Supervisor Hardwick which was self- contradictory and contradicted by the Company's records as well as by the testimony of both Lewis and Su- pervisor Adkins in various respects nor do I credit Ad- kins, whose testimony I have elsewhere found incredible, with respect to his alleged reason for discharging Lewis. Lewis credibly testified that she joined the Union about July 1 and attended meetings from that date on. She testified also that on each occasion organizers handed out literature she accepted it. I am convinced and I find that Lewis failed to make production during the latter 2 weeks of July and the first 2 weeks of August largely because of the fact that with her arthritic condition she had difficulty in first seaming. However, her work was normally excel- lent and her production good. During her final month she had less makeup than other employees who were tolerated. I consider it improbable that an employer who was engaged in a campaign to increase productivity would have discharged this normally very productive girl. In view of all circumstances, and in the face of the Em- ployer's knowledge that Lewis was engaged in union ac- tivity at least to the extent of taking union literature, I find that Lewis was discharged because of her union activities in violation of Section 8(a)(3) and (1). Conclusions with Respect to Aynor I have found that Respondent at the Aynor plant vio- lated the Act by the discharge of Stanford Roberts, Geneva Allen, Margaret Dell Jordan, Minnie Bourne Lane, Letha Tyler, Harry Rabon, Ruth Gerrald, Edna Gerrald, Barbara Smith, Pauline Strickland, Nannie Mar- tin, Christine Sellers, and Drunella Lewis and the refusal to recall Mary Roberts all in violation of Section 8(a)(3) and (1) of the Act. I have also found that Respondent vio- lated Section 8(a)(1) of the Act by the speeches to the employees by Marlene Vice President Dansky and by Robert Floyd and by the action of Aynor Development Corporation in its promulgation of the handbill "Who do you believe?" which contains a threat to close the plant and discharge the employees as well as a solicitation of em- ployees to withdraw their union authorization cards and an offer of assistance in so doing. I find in addition viola- tions of Section 8(a)(1) by the surveillance of the union meeting at the Live Oak Restaurant on June 17, by Su- pervisor Floriano; by the surveillance by Supervisors Mahoney and Squires of the union meeting at the home of Betty Gerrald on June 21; the threat by Plant Manager Martin on June 23 that if the employees joined the Union they would lose their jobs and the implied threat that the plant would be moved contained in his statement that his house was on wheels and he would not suffer if the plant moved; the threat by Rob Floyd to Stanford Roberts that the plant would close if the Union came in; a threat by Dansky to Roberts that the Company would not tolerate a union and would dove if the Union came in, reiterated on two occasions by the telephone; the statement by Su- pervisor Ration to employee Harry Ration that he would be discharged for attending a union meeting; the veiled threat of Supervisor Hucks to Edna Gerrald that "if the plant closed on account of the Union, the employees would not be able to draw unemployment" followed by the direct threat that the plant would close if the Union came in because the Meltzers would not operate with a union plant; the threat by Supervisor Hardwick to Nan- nie Martin that she had better not be messing with the Union because things were getting serious and a lot of people would be out of their jobs; and the interrogations by Supervisor Roberts of Geneva Allen, Supervisor Graham of Harry Rabon, Supervisor Hucks before and " Dyson was not called to testify MARLENE INDUSTRIES CORPORATION 727 after the July 21 meeting of Edna Gerrald , and Super- visor Jordan of Annette Squires, as well as the interroga- tion by Supervisor Floriano of Linda Collins. In addition , Respondent violated Section 8(a)(1) by the admitted surveillance by Plant Manager Martin and Stitching Room Supervisor Adkins on each occasion of distribution of leaflets by the Union at the plant, specifi- cally on or about May 15, May 25, May 31 , June 10, July 15, July 27, and August 5. I have not found that Respondent assigned employee Drunella Lewis to more arduous and difficult tasks because of her union activities as alleged. Accordingly, I shall recommend the dismissal of the complaint insofar as this allegation is concerned. C. Loris No. 134 On June 17, the Union attempted to hand out leaflets at Loris No. 1. The plant is set back from the street with a single access road down which all employees had to come. Two union agents , Robert Whitt and Horace Boan, stationed themselves at the entrance with leaflets while two other union agents, Allen and Hostettler, sat watching in the car which was parked nearby. When the plant let out the union agents noticed that the employees gathered in the yard of the plant. Plant Manager Schwartz stood talking with a group of men in front of the plant. At some time prior to May 17, the assistant supervisor in the finishing department , Inez Grainger, recruited female employees to go out and spray ink on the union or- ganizers when they next came to the plant. Grainger asked most if not all of the women in her department to do this. On May 17 seven female employees together with Inez Grainger, who appears to have been a supervisor, procured water guns which had been left on the super- visors' table, filled them with ink, and went out at the nor- mal quitting time ahead of the other employees . Each of them emptied two water pistols full of ink on the union agents. This touched off considerable hilarity among the assembled employees and Plant Manager Schwartz who were watching.35 The complaint alleges that Manager Schwartz on June 17, June 29 , July 15, and August 3 instructed employees not to take union literature and to do various other things. General Counsel adduced no evidence except that relat- ing to the June 17 inking episode . Similarly, the complaint alleges surveillance on the part of Manager Schwartz on each of the dates above mentioned. There is no evidence of such surveillance nor can I deduce surveillance from the occurrences of June 17 inasmuch as there is no evidence that any employee engaged in any activities for or on behalf of the Union or with regard to the Union. On the contrary the evidence reveals that the only employees present were those actively engaged in spraying ink on the union agents; the remaining employees apparently stayed in the plant yard until the union agents had de- parted. Therefore, each of these allegations of surveil- lance must be dismissed , and I shall so recommend.36 The action of Respondent, through its Supervisors Schwartz and Grainger, in instigating and condoning the ink-spraying episode is clearly conduct interfering with employees' rights guaranteed in Section 7 of the Act, and constitutes a violation of Section 8(a)(1) of the Act. Schwartz' condonation may readily be inferred both from the fact that he was present and watching while the in- cident took place , and from the admission of Supervisor Grainger to employee King that he instigated it in the first place. There is no evidence that Respondent has at any time taken any act to disassociate itself from the actions of the employees and Grainger who was herself one of the ink sprayers . See Martel Mills Corporation , 118 NLRB 618; N.L.R .B. v. Dorsey Trailers, Inc., 179 F.2d 589, enfg. 80 NLRB 478. D. Loris No. 2 On May 31 Union Agent Boan went to Loris No. 2 to distribute literature , and was promptly arrested for dis- tributing literature without a license. He procured a license and returned to the plant on June 3, for the same purpose. When he arrived at the plant with another union agent, Dorothy Burnham , they took positions on the two roads going into the plant . Plant Manager Eppersimons and Assistant Manager Joe Stern were at the entrance talking together. Eppersimons approached Boan and said "You be standing there when I come out and I will run you in that ditch over there."37 Boan turned to the police chief who was also present and said "I hope you heard that." The chief answered that he heard nothing. The union agents passed out their literature without trouble on this occasion. On June 16, Boan returned to the plant with Union Agents Allen, Whitt , and Hostettler for the purpose of passing out handbills. Production Manager Stern parked his station wagon blocking the front entrance to the plant where Boan and Whitt were stationed, leaving only the rear entrance, where Hostettler and Allen were stationed , free for the employees to come out. Eppersimons had Foreman Roscoe get two men, Skipper and Hamilton, whom Eppersimons furnished with rubber or plastic syringes filled with ink and in- structed them to drive down the driveway and spray the union agents as they went by. Hamilton and Skipper did so, liberally dousing both Allen and Hostettler with ink. Skipper and Hamilton were paid for the time so con- sumed. When Skipper returned to the plant Joe Floriano, the quality control supervisor from Aynor's plant, warned him that a warrant might have been sworn out for his ar- rest and assisted Skipper in getting the ink cleaned off the car. The next morning Eppersimons told Skipper not to mention what he had done to anyone and if anything hap- pened the Company would take care of it. A few days later , Eppersimons came to Supervisor Roscoe's desk, called Hamilton and Skipper together, 34 Loris operates two plants, both at Loris, South Carolina, herein Loris No l and 2. la Inez Grainger had fought the Union from its inception. While it is not alleged as an unfair labor practice employee Sadie King testified without contradiction that Supervisor Grainger threatened that if she did not par- ticipate in the ink spraying she would be discharged because the Employer would know she was for the Union, and threatened at other times that the employees would be fired if they were seen taking literature from the union employees or agents. 36 The interrogation, warnings not to accept union literature , threats of discharge, and instigation and participation in the ink throwing by Grain- ger were nigher alleged nor litigated , I therefore make no findings with respect thereto 37 Eppersimons denies so stating. I do not believe him 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and showed them pictures from a newspaper of union agents who had been sprayed with ink by some women at the Loris No. 1 plant. Roscoe told the two that they had done a good job. After the two union agents were squirted with ink by Skipper and Hamilton, Eppersimons, who had been standing on the access road, directed the employees in cars waiting to leave to roll up their windows and not to take leaflets. Four of the men who had been standing with Eppersimons watching the action went to the intersection of the access road and Church Street and stopped traffic on Church Street from both directions while they directed the line of cars containing employees to move out across Church Street onto a dirt road, across the street. Epper- simons and Stern remained at their post until most of the employees had left the plant. On or about June 15, Milford Allen and Horace Boan, union agents, returned to Loris No. 2 to hand out leaflets. Production Manager Stern parked in his station wagon at the intersection of the entry road and the highway where he could watch the employees as they came out. Again, men, otherwise unidentified, stationed themselves on the driveway urging employees to roll up their windows and not take leaflets. According to Allen, any time any em- ployee took a leaflet from either of the organizers, Stern wrote something down or appeared to do so. On one or two other occasions, according to Boan, he and other agents attempted to hand out leaflets to the employees at Loris No. 2, but with limited success because Epper- simons, Stern, or other members of supervision were watching and employees were urged to roll up their win- dows and go by the union agents.38 In mid-July, according to the credible testimony of Clarence Squires, Eppersimons, addressing the cutting room employees in the plant, warned them that the Com- pany would not operate under the Union. Eppersimons did not specifically deny this and I find that it took place as alleged. On August 5, Union Representatives Allen and Kaiser went to Loris No. 2 to count the employees. Allen stood at the gate and Kaiser parked his car on the dirt road across from the entrance of the plant. Allen did not at- tempt to hand out leaflets on this occasion, but merely greeted the employees as they came to work. Kaiser, sitting in his car, kept tally while Allen greeted the em- ployees. On this occasion, Eppersimons came down the road and told Allen to get off the company property. Allen pointed out that he was not on company property and that he was engaged in a lawful action. Eppersimons threatened to call the police; Allen pointed out that the police chief had just driven by and had waved to him. While Eppersimons was talking to Allen, Vice President Dansky drove up and told Eppersimons not to be talking to those animals and to move on. Eppersimons returned to the plant and in a few minutes came back with another man, got out of his car, and appeared to take a picture of Allen at the plant entrance. The Alleged Interrogation In late June or early July, according to the testimony of employee Holt, Acting Foreman Hubert Johnson asked Holt if he knew whether any of the boys had attended union meetings or had signed for the Union and asked Holt if he would do so. Holt said that he did not know anything about them, but felt that it was up to the em- ployees. Johnson told Holt that if any of the employees were caught "messing with the Union" they would be fired, and stated that these orders were passed down to him from Eppersimons. Eppersimons inferentially denied passing down orders of this nature. He stated that he never talked to any of his supervisors about the Union in any regard except on one occasion when he told the supervisors that they should not interfere with the employees' organizing efforts and pointed out the plant no-solicitation rule. On his direct testimony Johnson was asked whether he recalled ever having a conversation concerning union activities with Holt and he stated that he did not. Johnson also testified that he never discussed the Union with anybody, supervi- sion, employees, or management. However, Johnson ad- mits to hearing other persons in the plant discuss the Union but recalled no occasion nor any person who ever spoke with him about the Union. I do not credit Johnson especially in view of the fact that Johnson was an ad- mitted supervisor and Eppersimons testified that all su- pervision was given instructions by him after the union organizational campaign commenced in early June. Holt's testimony was straightforward and credible. He is no longer employed by Respondent, but is not alleged to have been a dischargee or otherwise to have been dis- criminated against. He appears to have nothing to gain or lose by his testimony in this case. I credit his testimony and discredit that of Johnson whose broad-gauged denials of any communication regarding the Union with either management or the employees is unpersuasive. John B. Disher Disher was first employed at the Aynor plant about March 13, 1965. He continued for about a week and a half at Aynor and was transferred to Loris No. 2. He worked as a presser until approximately 2 weeks before his discharge, when he was given the job of service boy under the supervision of Juilee Mincey (Williamson). As a presser Disher appears to have been rather expert. He testified that he almost always made production. On or about August 25, 1965, Disher decided to join the Union and called Stanford Roberts who had thereto- fore been discharged and was organizing for the Union.39 Roberts came to Disher's home where Disher signed a union authorization card. Roberts gave Disher additional cards for his use if anyone else wanted to sign them. The next day Supervisor Mincey came to Disher at the plant and asked him whether he could get her a union card and he told her that he could. Mincey said that she would sign '" Eppersimons testified that he had seen union organizers passing out leaflets on several occasions and that on at least two occasions he had spoken to them Other than denying specifically that he had threatened to run Boan into a ditch, he did not deny ordering the employees to roll up their windows, ordering the employees not to take leaflets, or watching employees who took leaflets. Stern was not called to testify. "' The following is based on Disher's testimony which I found to be frank and candid MARLENE INDUSTRIES CORPORATION 729 the card and Disher agreed to get her one. Disher went to the pressing machine operated by Eugene Skipper and asked Skipper to go to the restroom with him. In the restroom Skipper gave a union card to Disher who told Skipper he wanted it for his supervisor. When Disher returned to Mincey 's desk she was gone and he put the card in her desk drawer. He looked up and saw her coming from "over next to the office ." At this point Disher saw Plant Manager Eppersimons and Super- visor Stern standing next to the machines in another sec- tion. Mincey asked Disher to take the card and slip it up in front of the desk drawer so she could open her drawer and lay her production book on the desk, and he did so. Then Mincey called Disher over and discussed the dues with him and then told him to take "that junk" out of there because she did not want to get fired . He took the union card and put it in his pocket.4' He went back to work and Eppersimons immediately came over to the su- pervisor's desk. Eppersimons called Disher and asked him how he felt about the Union . Disher answered "re- member I was into that ink squirting"41 and tried to throw off the question . Eppersimons said "John, as soon as you service that drill come over here I want to talk to you." Disher finished the work he was then doing and came over to Eppersimons who said "John , you are supposed to be a preacher and I don't believe you would tell a fib would you?" Disher answered "No, sir, Mr. Epper- simons , I won't lie to you about it, I'm for the Union." Eppersimons said "Well, I guess you know what all the rest that went union got don't you." Disher asked "What?" And Eppersimons answered "Fired." The two continued talking about the Union , Eppersimons stating that if Disher got fired on account of the Union it would be hard for him to get another job because there were only three plants in South Carolina that had unions and Disher answering that he knew about it because his mother had worked in one of the three plants and thought the Union was a good thing. No mention was made about Disher's passing a card to Supervisor Mincey. The next morning as Disher came in to work he went to Personnel Manager Betty Medlin and asked her why he was getting only $1.25 an hour when all the other ser- vice boys were getting $1.35 because he had made better money as a presser. Medlin answered that he would probably get a raise and then asked Disher whether he could get her a union card. Disher asked her whether she wanted it then . Medlin challenged him that he did not have one with him. Disher still had the card that Skipper had given him to give to Mincey. He pulled the card half way out of his pocket but then refused to hand the card to her and pushed it back into his shirt pocket. At this point he looked around and saw Eppersimons and Stern stand- ing nearby . Disher went about his business . 42 Later the same morning Eppersimons called Disher into his office with Medlin and accused Disher of trying to sign up Betty Medlin and Supervisor Mincey. Eppersimons then discharged Disher and told him to get out the back door, get off company property, and never come back , and that if he came back the law would pick him up. Disher left. The Employer contends that Disher was discharged pursuant to a valid no-solicitation rule which was duly posted in the plant. Plant Manager Eppersimons testified that he posted the rule, set forth below, on February 25, 1965, on the bulletin board and over the timeclocks.43 The posted rule states in pertinent part: (1) Soliciting on company property and on company time for funds or membership in any organization is strictly prohibited. Sales of merchandise, chances, tickets, and collections of any kind , etc. on company property and on company time are prohibited unless authorized by written consent of the plant manager. (2) Distribution of literature (printed matter of any kind) on company property and on company time is prohibited unless authorized by written consent of the plant manager. On cross-examination Eppersimons testified that he gave written permission in every case of solicitation in the plant that he knew of. However, when asked if he would have given permission to solicit for the Union he stated first, "I cannot answer that because I will only grant per- mission for solicitation that I feel will affect the welfare of the employees in the community , so that I would have to study about it." Asked whether he thought solicitation for the Union would benefit the welfare of the community he answered "In many cases I have known it to work other- wise." I believe the inference is clear that solicitation for the Union would not have achieved Mr. Eppersimons' permission if it had been sought . However, there is no indi- cation in the record that written permission was at any time sought. Eppersimons also testified that there had been a large number of solicitations in the plant and that on occasion he had had to remind the solicitors that they had not gotten permission . However, on these occasions he took no steps other than to grant permission in writing except in the case of Mr. Disher and Mr. Skipper. Respondent's defense depends upon the enforceability and validity of its no-solicitation rule. In the particular, narrow aspect of the no-solicitation rule issue with which we are here faced, the law is clearly settled. In the Nutone case,44 the Court held that when an employer en- gages in antiunion solicitation , in a manner forbidden to his employees by an otherwise valid no-solicitation rule, it is an unfair labor practice to enforce the rule against them. Assuming that the rule as promulgated was valid in the circumstances of this case , under the Nutone doctrine it is surely unlawful to enforce it. Eppersimons , the plant manager, admittedly solicited employees to engage in the antiunion act of throwing ink on union organizers in the presence of employees. He additionally solicited Disher to abjure the Union when, the day before Disher's discharge, Eppersimons talked to Disher at his super- visor' s desk, questioned him about his feeling for the Union and threatened Disher's discharge if he had anything to do with union g,45 46 Mincey was not called as a witness , although she is still a supervisory employee of Respondent 41 Disher was a passenger in Skipper's car a' I do not credit Medlin's version of this conversation Based on her demeanor while testifying and the incredibility of her testimony in other respects, I find her testimony unworthy of belief. ' i The General Counsel alleged and the Respondent admitted that another no-solicitation rule was posted in this and the other plants. I find that both rules were posted in Loris Manufacturing Company Plant No , i N.L.R B v . United Steel Wor/ ei s of Amei ica , CID (Nutone , In(or- porated), 357 U S . 357, 362 The above conversation was reported very differently by Plant Manager Eppersimons. I credit Disher throughout I found Eppersimons' testimony, which frequently conflicted with Medlin's, Roscoe's, Disher's, and Skipper's, to be incredible 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It appears that Eppersimons conceived that a no-sol- icitation rule was applicable only to employees. He had no hesitation in breaching it himself and engaged in antiu- nion solicitation freely. The enforcement of a valid no- solicitation rule is presumptively valid only in the absence of evidence that the rule was unfairly applied. Here the evidence reveals the discriminatory application of the rule. Additional evidence of the fact that the rule was discriminatorily applied is to be found in the plant manager's testimony that he had forgiven other types of solicitation without permission, but discharged Disher and Skipper for union solicitation. I find that the rule was not valid and enforceable and therefore Respondent's defense must fall. Moreover, I am not unaware of the fact that the sol- icitation of which Disher was accused and for which he was discharged resulted from an obvious case of entrap- ment. First, Supervisor Mincey asked Disher to get her a card; when he brought it back she was in the office and he put it in her desk; then under Eppersimons' eyes she asked him to move it in her desk. This should have made clear to him that he was the victim of a "frame." This was immediately followed by Eppersimons delivering a lec- ture to Disher redundant in coercion. The next day Medlin again attempted to "frame" Disher. He wisely did not give her the card, but neverthe- less she reported that he had solicited her and Disher was thereupon summarily fired. I cannot ignore the fact that Personnel Manager Medlin, admittedly a supervisor, and obviously closely aligned in feeling and in function with Plant Manager Eppersimons and Supervisor Mincey, are both management spokesmen and both obviously gave immediate reports to Eppersimons46 on their conversa- tions with Disher. Even if the no-solicitation, no-distribu- tion rule was valid, and I find that it is not, the discharge of Disher under the circumstances here presented would be violative. I find that Disher's discharge under the cir- cumstances resulted in unlawful discrimination and un- lawful coercion. I find further that the contrived circum- stances which led to it add nothing to the value that I would place on the testimony of either Eppersimons or Medlin. Finally, I find that the discharge of Disher is a violation of Section 8(a)(3) and (1) of the Act and I shall recom- mend a remedy therefor.47 Eugene D. Skipper Eugene D. Skipper was first employed by Respondent at the Aynor plant. After several weeks there as a presser he was transferred to Loris No. 2, where he worked under Foreman Roscoe as a presser. Skipper was one of the two men recruited by Roscoe at Eppersimons' direction to squirt ink on the union or- ganizers, discussed above. On or about August 24 Skipper attended a union meet- ing. The next day as he was leaving in the evening he was called and taken by Eppersimons into his office where Eppersimons said that he had word that Skipper had at- tended the union meeting and asked if it was true. Skipper acknowledged that it was. Eppersimons said "You know what the company does for people who attend union meetings ?" Skipper answered, "I reckon you fire them" and Eppersimons rejoined "You're right." Eppersimons went on to say he would not fire Skipper at that time but that Skipper should not attend any more meetings, and then went on to tell him why the Company could not pay more money and did not want the Union.48 After the warning , commencing the following Monday morning, Skipper began to have trouble making produc- tion. He had never had trouble before. He attributed his failure to make production on August 3 and thereafter to a change in the manner of distributing work. When work came to the pressers it had already been in- spected. Frequently the inspectors pulled out work to be resewn in some particular . However, no notation was made on the bundle from which the work was taken. Therefore generally speaking a bundle of work would contain fewer pairs of pants than the tag on the bundle in- dicated. As a result of this when the repairs were sent to the pressers they were not counted toward the pressers' production, apparently on the theory that if the repairs were distributed evenly the presser would have about the amount of production that his tickets showed him to have. The repairs were not always distributed perfectly evenly. Disher for instance testified that he had himself com- plained about uneven distribution to the bundle boy who did the distributing. However, it appears that they generally approximated roughly 25 repairs twice a day, morning and afternoon, to each presser. Starting on August 30, in the morning the service boy brought to Skipper about 100 repairs although the other pressers were given their normal complement of around 25. Skipper complained and the bundle boy told him that he had been ordered by Roscoe to do this. Again that evening Skipper was given about 100 while the others were given only 25. This pattern continued and Skipper's production suffered . On the second or third day Roscoe held a meeting at which he complained to the pressers about their production and singled out Skipper. Skipper pointed out to Roscoe that he could not be expected to keep up production and do four times as many repairs as the other people had . Roscoe's only comment was to the 46 Eppersimons claims that Mincey reported Disher's solicitation, and Medlin did not. Medlin testified that she reported the solicitation of Mm- cey to Eppersimons . Mincey was not called to testify I credit neither Ep- persimons nor Medlin A' The Wni. H Block Company, 150 NLRB 341 , and cases therein cited i" Skipper denied that he had had more than one conversation with Ep- persimons in his office . Eppersimons testified that he had a conversation on August 26 in his office during the afternoon at which Personnel Director Medlin was present and in which he warned Skipper not to solicit or pass around cards in the plant during working hours Medlin cor- roborated Eppersimons I find neither Medlin nor Eppersimons credible. Neither in their testimony denied that Eppersimons had made the state- ments attributed to him by Skipper , however, neither of them was specifi- cally asked I credit Skipper The two reported accounts are so completely different that I am convinced that either this testimony was wholly con- trived or that Eppersimons and Medlin were reporting a different meeting with another employee I find Skipper's report inherently credible, con- sistent with the facts, and supported by both the details with which the meeting was reported and by the demeanor of Skipper both on direct- and cross-examination MARLENE INDUSTRIES CORPORATION 731 effect that Skipper would have to do what he was assig- ned.49 On August 31, Skipper again went to a union meeting. On September 3, Roscoe called Skipper into the person- nel office after lunch. Eppersimons and Personnel Director Medlin were there . Eppersimons told Skipper that he was going to have to discharge him for low production, gave him his check, and told him to get off the property and never come back on it, "And he would see me when the time came." Eppersimons, Roscoe, and Medlin each testified about Skipper's discharge interview. Their stories are greatly at variance.50 It is impossible to synthesize them and deter- mine the basis on which the Employer alleges Skipper was discharged. Respondent's brief does not choose among the various stories . Assuming that Respondent is relying on Plant Manager Eppersimons ' testimony, Ep- persimons testified that he discharged Skipper because he violated the no-solicitation policy by giving a union card to a service boy, Donovan Grainger. Donovan Grainger was not called to testify. I do not credit Eppersimons . However, if I were to credit him, I would have to find , as I found in the case of employee Disher, that the discharge of Skipper is viola- tive of the Act, inasmuch as the no-solicitation rule is in- valid, under the circumstances which I have found to exist in this plant. I find that Respondent told Skipper that he was discharged for low production. I find that this low produc- tion resulted from the discriminatory assignment to him of extraordinary amounts of repair work , causing his production to suffer. I find that the repair work was as- signed him for the purpose of ruining his theretofore good production and affording the Employer a pretext to discharge him, because of his union activity . I find that the discharge of Skipper is violative of Section 8(a)(3) and (1) of the Act. Joe Doyle, Jr. Joe Doyle, Jr., was first employed at Loris No. 2 in February 1965 as a carpenter. He worked as a carpenter until May 5 , at which time carpentry work ran out and he was assigned to painting. After painting 2 days, Doyle of- fered to quit because he could not stand the smell of paint. He was transferred by Manager Eppersimons to the cutting department where he worked as a bundle boy until his discharge on August 5. At some time during his brief tenure with the Em- ployer, Doyle became interested in the Union, and talked to other employees about it. He discussed the Union with Phyllis Tucker, telling her that he would be glad to see the Union at the plant because he had a friend who was work- ing in a union plant who was making more money than was Doyle, and with Jack Turbeville, a fellow employee in the cutting department, who asked Doyle to get him a union card to sign. Doyle agreed to get him a card and did so that day during lunchtime. On the evening of June 28, 1965, Doyle attended a union meeting at the Live Oak Restaurant in Conway, South Carolina. Doyle was the only employee of Loris No. 2 at the June 28 meeting. On August 5, 1965, Doyle was taken to the personnel office along with another bundler, King, where they were told by their foreman, Conrad, that they were being discharged for deliberately messing up the work. Doyle was dissatisfied with the reasons given him for his discharge and the following Monday, with King, called upon Manager Eppersimons and asked for an explanation of his discharge. According to Doyle, Eppersimons said that all he could say was that Conrad said Doyle's and King's work was not satisfactory, that there had been a lot of stuff messed up in the cutting department and it was costing the Company a lot of money, and that he had to get it straightened out one way or the other. Doyle and King tried to tell Eppersimons that they had not mixed up the work in the cutting department and tried to find out who allegedly told Eppersimons that they had done it deliberately so that Marvin Conrad would be fired. Ep- persimons named only one person, Phyllis Tucker. Ep- persimons said that Tucker had signed a sworn statement that King and Doyle had said that they mixed up the cloth to get Conrad fired, and if necessary he would get her back from Tennessee where she had gone. Doyle asked if he was being fired because he had talked of the Union or because he attended the union meeting. Eppersimons did not answer directly but said that he had worked at a plant where there was a union and he did not like it and he quit, but that he could work under the Union but he did not want to. Eppersimons testified that he had been informed by Phyllis Tucker that King had bragged to her that he (King) and Doyle were deliberately messing up the work so that Conrad would be fired,51 whereupon the next day he and Conrad went over work performed that morning by Doyle and King and found that it was "messed up" and determined to fire the two. At that time Doyle and King were bundling another lot of freshly cut parts. Epper- simons did not confront Doyle and King with the al- legedly mixed up bundles nor take them off the bundling work. Eppersimons testified that he told Conrad to discharge Doyle and to have the mixed bundles straightened out before they were sent to sewing and that later that day he left for a trip to Indiana from which he returned the following Monday. About 11:30 Conrad discharged the two men. It is clear that there were some mixed bundles which had been sent to the sewing rooms both at Loris No. 2 and at Aynor plant, for which the cutting room at Loris No. 2 does all cutting. Employees from the cutting room at Loris No. 2 were sent to Aynor plant to straighten it out. It appears also that shortly after Conrad was hired as foreman, Conrad made changes in the method of doing the work which resulted in at least one member of the crew warning Conrad that the changes would result in messed up bundles. 44 Roscoe denied that he had had any conversation with Skipper con- cerning the number of repairs that he was given. He denied also he gave the service boy any instructions regarding the number of repairs given to Skipper. The service boy was not called as a witness. I do not credit Roscoe. I found his demeanor on the witness stand unsatisfactory. He was flippant, argumentative, and profane One of the few things he said that I would unhesitatingly believe was that he would do anything Epper- simons told him to do His testimony on direct- and cross-examination was self-contradictory. He spoke with a noticeable lack of candor i0 I do not credit any one of them. The three witnesses under intensive cross-examination contradicted themselves , each other, and Skipper To spell out the extent to which their testimony is incredible would unneces- sarily burden this Decision " Eppersimons, whom I do not credit , testified that he also told King that Tucker said he had been stealing from the plant . In his testimony re- garding his interview of Tucker, however, he effectively precludes belief that she so stated. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eppersimons and Johnson, who succeeded Conrad as foreman (Conrad was discharged almost immediately after Doyle), testified that the bundles were mixed as to both shades and sizes. On the other hand, employee wit- nesses who took part in sorting out the bundles testified only to a mixture in the shading, which clearly would be attributed to the innovations of Conrad. Johnson testified that the innovations instituted by Conrad continued at least until the day of the hearing. Conrad was not called as a witness. Eppersimons at no time mentioned that there were any troubles other than those caused by Doyle and King. It was therefore surpris- ing to find that a third employee, Clarence Squires, was discharged about the same time on the complaint of Con- rad that he had deliberately mixed up bundles in order to cause trouble to Conrad. Under all the circumstances and in view of my credibility findings with regard to Epper- simons, I conclude that his story is a fabrication. I con- clude that there was in fact a mixup of the work being sent to the sewing departments of the two plants, that it was attributed to the innovations instituted by Conrad, and that it was as a result of these innovations that Conrad was discharged about the same time as the discharge of Doyle and King. I conclude that Eppersimons seized upon the troubles caused by the actions of Foreman Con- rad to discharge Doyle as well as King and Squires.52 Respondent contends that it had no knowledge of Doyle's union activity. However, Eppersimons admit- tedly used Tucker, who knew of Doyle's union ad- herence, as an informant. Tucker was never called as wit- ness. Further, it is clear that some union meetings were under surveillance by the Employer. Under all the cir- cumstances in this case, I infer that the Employer knew of the union adherence of Doyle and I conclude that Respondent discharged Doyle in order to discourage union activities and membership on the part of Doyle and on the part of other employees. Conclusions as to Loris No. 2 I have found that Respondent violated Section 8(a)(3) and (1) of the Act by the discharges of Skipper, Disher, and Doyle. In addition Respondent violated Section 8(a)(l) by the surveillance of the union agents' attempts to distribute leaflets to the employees, by the interference explicit in the inking episode which was admittedly in- stigated by Plant Manager Eppersimons, Martel Mills Corporation, supra, by the interference implicit in the conduct of expediting the departure of the employees' cars when the union agents were distributing handbills, together with enjoining the employees to roll up their car windows, by the action of Production Manager Stern in writing something down when employees took handbills, by photographing Union Agent Allen while he was greet- ing employees at the plant gate, by the interrogation of employee Holt by Supervisor Johnson, by threats and in- terrogation of employees Disher and Skipper by Manager Eppersimons and Supervisors Mincey and Medlin, by the imposition of the discriminatorily applied no-solicitation 52 Neither King nor Squires was alleged to have been discharged in violation of Section 8(a)(3) It is clear that Squires was not only interested in the Union himself but was related to Stanford Roberts, well known as a union advocate. The failure of the General Counsel to allege as violative the discharges of King and Squires raises no inference in my mind with re- gard to the discharge of Doyle, although the contrary is urged by Re- spondent in its brief rule, and by Eppersimons' threat to close the plant if the Union came in, and I so find. E. Trousdale plant The Trousdale plant in Hartsville, Tennessee, is located in the center of the town on Main Street. Marlene Drive provides access from Main Street to the em- ployees' parking lot situated alongside the plant. Across the street from the plant is the county jail and the sheriff's office, along the side of which is a parking lot. Main Street is paved, with a sidewalk on the plant side, but none on the jail side. The employee entrance to the plant is situ- ated on the right hand side of the plant building facing Main Street and consists of a double door with an outside porch and several steps leading up to it. From this porch a walkway goes across the face of the plant parallel with Main Street to Marlene Drive and the parking facilities for employees. About May 3, 1965, several union agents passed out rain caps folded around a union leaflet as the employees left work in the evening. The union agents stood on the plant porch. No interference with the distribution was en- countered on this occasion. A couple of weeks later, Union Agent Vestal and another agent came to the plant during the day and placed leaflets in the employees' cars parked on the employees' parking lot and in the parking lot next to the jail across the street from the plant. Again, no interference was encoun- tered. On a third occasion Vestal came to the plant with another agent with the intention of passing out leaflets. They arrived about 3:30 in the afternoon and parked in the lot adjacent to the jail across the street from the plant. They noted for the first time that a sign had been erected on Marlene Drive at the corner of Main Street with the legend "Private Property. No Trespassing or Soliciting." In addition they noticed an armed guard wearing a Sam Brown belt and a pistol, a badge, and a military type hat with a blackjack in his pocket. The guard, subsequently identified as Lon Edison, an elected constable and an em- ployee of Marlene, approached them and forbade them to go on Marlene's property or to hand out the leaflets on the street. When they protested he said he would have to call "him" pointing to the plant and "find out if he wants me to let you do that." The union agents protested and at this point a young lady walked by heading for the plant. When one of the agents tried to hand her a leaflet Edison grabbed his arm and said "She don't want one of them." Edison, after a little more discussion, led them to the of- fice of Tom Jones, the sheriff, in the jail.53 The sheriff warned the union agents not to pass out leaflets and stated that if they returned and passed out leaflets he would arrest them. The union agents ap- parently left town at this time without any further attempt to distribute their leaflets. On June I 1 the employees were summoned at noon to a portion of the plant where they were given a chicken dinner followed by speeches made by both Meltzer ss Sheriff Jones, alleged to be an agent of Respondent , took an active part in the campaign on behalf of the Employer. He was present in and around the courthouse throughout the hearing but was not called as a wit- ness. MARLENE INDUSTRIES CORPORATION 733 brothers, Vice President Dansky, Sheriff Jones, and Cecil Harper, the mayor of Hartsville. The employees were kept at the dinner until 2 in the afternoon and were paid for the time. Plant Manager Beitsch introduced the speakers. Dansky spoke first. Dansky commenced reading from a prepared text and shortly departed from it. He announced that the plant had prospered over the preceding 5 years and accordingly the employees were going to benefit. He announced that at Christmastime the employees would get, in lieu of a vaca- tion, a sum equal to 2 percent of their earnings for the preceding year, that the employees would receive two paid holidays, Thanksgiving and the Fourth of July, and that the following year they would receive two more paid holidays, New Year's and Labor Day. They would also receive a week's vacation, apparently Christmas week, and a life insurance policy for $1,000.54 Dansky also told the employees that it was okay if the employees had signed a union card because they did not know the cir- cumstances but warned them not to sign any more or the Company would close. He said all the Union wanted was the employees' money, that the employees had good jobs, but if the factory closed they would not have any, and that they would lose their homes and their cars and would not have any food to feed their children. He stated that the Employer did not want a union in its factory and that if the Union came in it would close the factory.55 Counsel for the Respondent, when the General Coun- sel was prepared to offer the testimony of Opal Harris concerning the speeches, proposed a stipulation stating, "I am satisfied that the other witnesses that General Counsel intends to call will testify essentially to the same thing that the previous witnesses have testified to. I am not stipulating that that is the only thing that was said but I am willing to stipulate that she would testify to the same thing the previous witness of General Counsel had testified to...." Dansky testified that he spoke only from prepared texts of two speeches which he used at all five of the plants at which he spoke . On cross-examination Dansky first testified that he gave the first speech at the Trousdale plant, then testified that he gave parts of each and later that he gave both speeches in their entirety. No employee corroborated Dansky nor did any other witness called by the Respondent. In view of Dansky's demeanor on the witness stand and particularly his testimony under cross-examination concerning the speeches which I con- sidered to be confusing and obfuscatory, I do not credit his testimony that he spoke only from the prepared texts and I credit the employees that he departed from the texts as set forth above. After Dansky completed his speech the Meltzer brothers both spoke. Neither added anything substantial to what Dansky had said. Neither spoke at any great length. Both are reported to have reiterated Dansky's threat that the plant would be closed if the employees joined the U_iion. 56 Sheriff Jones was the next speaker. He told how he had stopped the union agents from dis- tributing leaflets and stated that he would not permit any union organizing in the town as long as he was sheriff. He pointed out the benefits that the plant had brought to Hartsville and stated that he did not want a union in Harts- ville, that if the Union came in Respondent would close the factory. He advised the employees to come to his of- fice and notify him if they heard anyone talking about the Union, signing any cards, or having any leaflets . He sug- gested if the employees saw organizers on the street not to talk to them and if the organizers came to their homes to chase them away. I credit the employees who testified to the above, the same employees who testified to the speeches of Dansky and the Meltzers. Jones did not testi- fy. I find the versions of his speech inherently credible and consistent with the other speeches. The next speaker was Mayor Harper who told the em- ployees that he had gone to New York and had persuaded Marlene to bring their factory to Hartsville . He told the employees that Marlene had had factories in Japan and that they would take their factory back to Japan but he wanted to keep the factory in Hartsville. Harper also told the employees that Marlene had informed him that they would close the factory if the Union came in, and he ad- vised the employees to think about that before they signed anything for the Union and to think how they would pay for their houses and cars if the factory closed. Plant Manager Beitsch concluded the meeting by telling the employees that he went along with what the others had said and sent them back to work after advising them not to worry about punching the timeclock. About the time of the company sponsored luncheon or dinner another manifestation of the Employer 's concern appeared. The plant has 10 or 15 young men called bun- dle boys, whose function in production is to carry bundles of clothing to the operators and between various places and to keep the operators supplied with material and sup- plies. The bundle boys are all under the supervision of Stitching Floor Supervisor Maness. Each afternoon be- fore 4 o'clock, generally about a quarter to 4, most if not all of the bundle boys sometimes with and sometimes without Maness would leave the plant and take positions along the highway between the highway and the plant. Some were armed with water pistols filled with ink which they kept on top of an air conditioner in the stitching room department. Maness testified that the bundle boys went out of the plant "on different occasions we was sup- posed to have union activity. The people in the plant were nervous and upset and I asked the boys to go out there and see that nobody was bothered while on Trousdale property." On cross-examination Maness admitted that they went out every day rather than several times as he indicated on his direct examination . The result was, of course, that in the evening when the employees left work the plant was patroled not only by the armed guards but by the 10 to 15 bundle boys. The bundle boys continued to patrol until 4:30 or 5 when all the employees had left the plant premises at which time they came in and clocked out. On June 24 the union agents again attempted to dis- tribute leaflets. The bundle boys were in position. Union Agent Nierman , with an arm full of leaflets, took his posi- tion at the corner of Marlene Drive and Main Street. Al- most immediately Plant Manager Beitsch, together with Dan Miller, the plant engineer, Milfred Mannos , and Mel- vin Slaten, a supervisor of the press department , ran out ,4 It appears that Manager Beitsch had previously , on May 17, an- nounced the paid Christmas vacation but not the other benefits. 51 The above account is reconstructed from the credible testimony of employees Betty Harrison, Margaret Hodges, Caroline Shoemake, and Harry Huffines. s Neither Meltzer brother testified. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the plant and down the road with Beitsch in the lead. Beitsch ran up and collided with Nierman knocking the leaflets from his hand and knocking his wristwatch off. Nierman regained his balance and picked up the leaflets and started back to his car. As Beitsch ran into Nierman he said , "All right Mack, this is private property. Get to hell out of here," and then turned to the employees gathered around and yelled, "All right, let's get these goddamned communists out of here." Nierman called his people together and they retreated to their car, parked in the jail parking lot. The crowd which had gathered followed the union agents to their car and one of the bundle boys, Hoyt West, reached in the win- dow on the side of the driver with a water pistol and shot Nierman in the face with ink from the water pistol and also sprayed the inside of the car . About this time a truckdriver, Frank Smith, employed by the Employer picked up a large metal sphere about a foot in diameter and held it over his head profanely threatening to throw it through the windshield of the Union's car. He did not throw it. The union agents took off to leave town and Plant Manager Beitsch stopped traffic to enable a car owned by Hoyt West, and occupied by West and other bundle boys, to get through the traffic to follow the union car. They followed the union car without incident out of town and about 5 miles to the next town where the union agents stopped at a police station and asked for protec- tion. Thereafter the West car was not seen on this occa- sion. The next day Beitsch made a speech to the employees at which he said that he was glad to see that very few peo- ple took leaflets and advised the ones that did take them to burn them up and get rid of them and that he felt that everyone felt as he did. He did not want the Union in the plant and that they were not going to have the Union in the plant. Also on June 25, Beitsch asked employee Opal Harris whether she was for the Union or against it. She an- swered that she had not made up her mind and he told her she was going to have to make up her mind . Later the same day Ethel Russell , a supervisor, told Opal Harris that if she had told Danny (Beitsch) that she was neither for the Union nor against, that she would be fired. The Union tried again to leaflet on July 13. On this oc- casion , they announced in advance , apparently by a newspaper ad in the Hartsville Vidette, that they would be at the plant for the purpose of leafleting the employees. Either this advertisement by the newspaper or a prior one had resulted in Dansky's returning to the plant where he made a speech attempting to rebut the Union's argu- ments.57 Dansky caused the employees to be assembled dur- ing the workday and said that he had a clipping from the Vidette and that he would read it to the employees before they read it and misunderstood it. He pointed out that the Union was taking credit that the employees had been given two paid holidays just because the Union was there, but that that was just a drop in the bucket. Dansky said „ Dansky did not specifically deny this speech . The only possible reference to it in his testimony was his statement that he made only one speech in Trousdale. I credit the account of the employees this was not so and that they were giving employees nothing because the Union was there and he said that if the Union came in the Employer would shut down all their factories. On the 13th, the date that the Union advertised that they would be at the plant to distribute leaflets, the Em- ployer apparently organized carefully for the occasion. All employees were called together about 5 minutes be- fore quitting time where they were addressed by Beitsch and by Marshall Davis, a citizen of Hartsville. Beitsch spoke first and informed the employees that the union people were outside. He told them, in effect, that they should not take the union literature but if they did take it they should tear it up and throw it away. According to witness Shoemake , he was "so angry that he could hardly talk." After making the above statements , Beitsch turned the meeting over to Marshall Davis who made a fairly long speech in which he told how sad the town was before the plant came to Hartsville and then said that he had been told by Mr. Beitsch that the plant would move if the Union organized it and he pleaded with the employees not to become involved with the Union. When he finished his address , Beitsch stood up and cried , "Go out there and give them hell."58 While Beitsch was speaking Maness marched his bun- dle boys into position. Al Warner, the supervisor of the experimental shop, was posted on top of a sign board on the street across from the entrance of Marlene Drive with a camera and instructed to take pictures of cars from which employees accepted union leaflets. The union representatives, this time six in number, went first to the office of the local district judge where they met with the judge, a newspaper editor , and a local banker. From there they went to the mayor's office where they were assured they would have police protection. When they left the mayor's office they found that one of the two cars in which they had arrived had had the air let out of three of its tires and stood blocked by another car and a truck in front of the mayor's office. They went in their other car to the parking lot at the jail where they parked and got out of their car to attempt to pass out leaflets. Three or four bundle boys, including one Pody Nichols, were standing across the street with baskets of tomatoes. They started throwing tomatoes at the or- ganizers and a policeman or peace officer arrested one of them. The union men fanned out with their leaflets, at least one of them on either side of Marlene Drive where it intersected Main Street. Maness and Phifer, another su- pervisor, took stations on either side of the driveway and directed the employees in cars to form a single line to the right and to make a right turn out of the driveway, whether or not they wanted to turn to the right. They were described by several witnesses as standing on either side of the driveway hurrying the employees out. Plant Manager Beitsch was farther up the driveway towards the plant shouting to employees to roll up their windows and 58 Marshall Davis is a resident of Hartsville and owner of a large tobac- co warehouse which is used by Trousdale Manufacturing Company as a warehouse. MARLENE INDUSTRIES CORPORATION 735 to move on rapidly. In this way the parking lot was emp- tied quickly.59 Melvin Slaten, another supervisor, and two of the bun- dle boys, Jackie Smith and Junior Smith , and a boy from the shipping department, identified only as "Hardhead," went across to the jail parking place where Slaten pointed out the Union's car and the boys let the air out of three of the tires . A local restaurant owner saw this and got a po- liceman or sheriffs deputy who arrested the two Smith boys but "Hardhead" ran away. Sam Shirah, a union agent, was attempting to hand out leaflets when Hoyt West, another bundle boy, jumped on him and tried to take the leaflets from him. He was ar- rested for this and Dan Miller, the plant engineer, told the sheriff, "You are carrying this too far." Miller circulated through the crowd and pointed his finger at Jerry Tucker, another union agent who once had worked for the Em- ployer and shouted, "There is a man who took paychecks from Marlene and then stabbed it in the back. He is taking bread out of your children's mouths. An s.o.b. like that doesn't deserve to live." Dan Chasen, the Union's public relations man, had a camera strapped to his wrist and was taking pictures. Mike Cunningham, an employee , ran out of the crowd, jerked the camera from Chasen's wrist, breaking the strap and ran down the street with it. Melvin Slaten, apparently carrying on his vendetta against the Union's car, broke the antenna off and opened one of the car doors for one of the employees to squirt ink inside. He also kicked in the door panel. Beitsch came to the jail yard where he told the union agents to go back to Russia and then arranged for a police escort to the county line which the sheriff pro- vided. Dan Miller made bond for the boys who had been arrested and they were released and Beitsch led them back into the jail yard. The above account is taken from the credited testimony of Union Agent Vestal and employees Hodges, Shoemake, Huffines, Opal Harris, and Janice Hancock, all of whom I credit. Their testimony is not contradicted except to the extent that Maness and Phifer testified that they saw no violence. Although Beitsch and Miller were in the hearing room, they were not called to the witness stand nor was Slaten or Warner. After the incidents set forth above the union agents left Hartsville. Conclusions Regarding Trousdale I conclude and find that by the speeches made on June 11 at the chicken dinner in the plant, on company time and property, Respondent violated Section 8(a)(1), by threatening loss of employment and removal of the plant in the event of union organization , by granting benefits in the form of paid holidays, bonuses and life insurance, by promising future benefits in the form of additional days off in the following year, and, in the case of Sheriff Jones, by soliciting employees to report on the activities of any- one engaging in organizational activities. I find that Sheriff Jones and Mayor Harper were both agents of Respondent insofar as their speeches were con- cerned. The speeches were delivered at a company spon- sored dinner, in the presence of the top managerial authority of the Employer , were consistent with and reiterated the threats made by managerial persons, and were , at the very least, ratified by the Employer's failure to disavow their statements. I conclude that by his assault on Union Agent Nier- man, Manager Beitsch on June 24 coerced employees, who could and did see Beitsch run into Nierman, knocking the leaflets from his hands. Thereafter, by the actions of the bundle boys, egged on and led in their un- lawful behavior by Manager Beitsch, spraying ink on the union agents and in their automobile , and following their car out of town, Respondent further coerced and restrained employees in their exercise of their Section 7 rights. Respondent contends that the actions of Hoyt West and the other employees who took part in the activi- ties are not attributable to Respondent . I do not agree. Respondent's supervisor, Maness, obviously stationed the men around the plant with some function (loosely defined as protection) in relation to the organizers. Beitsch by his assault on Nierman provided the leader- ship by which the men determined the course of their ac- tion, and by his order to get the union agents out of here set them in motion. When West and his gang drove after the union car, it was Beitsch who stopped the traffic to let them through. I cannot say that there is any time at which his active leadership stopped . There is not even a claim that any attempt was made at any level of management to disavow the rowdy actions of Beitsch 's hoodlums. On the contrary, Beitsch's speech to the employees the following day is on a congratulatory note . There is no doubt the en- tire incident is Respondent's creation. Martel Mills Cor- poration, (supra). Beitsch's interrogation of employee Harris and Super- visor Russell's threat of discharge to Harris are classical violations of Section 8(a)(1) and I so find. Dansky's speech responding to the Union's advertise- ment reiterated the threat of plant closing and violated 8(a)(1), as did the speeches of Beitsch and Marshall Davis made to the assembled employees in the plant on July 13. ' The riot on July 13, led by Supervisor Beitsch , Slaten, and Miller, was completely the work of Respondent, and for the reasons set forth above I find it violative of Sec- tion 8(a)(1). In addition, the taking of photographs of em- ployees who accepted literature is a violation of Section 8(a)(1). Puritana Manufacturing Corporation, 159 NLRB 518. Maness and Phefer both deny that there was any prearrangement to their actions in directing traffic. Both claim to have thought of the idea spontaneously when they saw that traffic was backed up. Under all the circumstances , I do not credit their denial Maness testified that he had been told by Beitsch to take his bundle boys out and report back if there was any violence but testfied that as far as he could see there had been no violence. Phifer testified that he saw no violence and heard nothing other than the normal noise made by a large crowd Both testified that they went to the jail after the parking lot had cleared and saw a number of the bundle boys in jail but testified that they knew nothing about any violence that might have been committed by the bundle boys Phifer even went so far as to testify that he had not known that the Union was going to be there, although he heard a rumor and was surprised when he returned at 5 minutes to 4 from a trip to the post office and saw a crowd collecting in front of the plant. As to this latter testimony , it would appear that Phifer, a high ranking company supervisor, was the only person in town unaware of what was going on at the plant that day 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Westmoreland Plant The Westmoreland plant is located in the town of West- moreland, Tennessee, on a narrow two-lane street called College Street. Westmoreland is some 25 or 30 miles northwest of Hartsville, and about 6 miles below the Ken- tucky border of Tennessee. The union campaign at the Westmoreland plant com- menced on May 4 in the same manner as that at the Trousdale plant. Union Agents Vestal and Nierman went to the plant and passed out rain hats with leaflets at the door to the employees as they left work. There was no in- cident and when the employees had all come out they left. About 2 weeks later, Vestal returned to the plant with another man with the intention of distributing leaflets. On this occasion, they were stopped from distributing by local police. Vestal saw armed guards in uniform on the plant premises, and as he drove up to park where he had parked on the former occasion, one of the guards stepped inside the plant and came out a few minutes later with Plant Mananger Broyles. Broyles wrote something on a piece of paper and went back into the plant. Plant Manager Broyles testified that , probably in the last week in April, he caused a sign which had been in the back of the plant to be erected in the front of the plant . The sign said "private property , no trespassing or soliciting." The employees and Union Agent Vestal testified that the no- trespassing sign was erected after the union organization commenced. I do not credit Mr. Broyles. His testimony with regard to the sign was indefinite and contradictory. He testified that he was not aware that the neighboring Trousdale plant had erected similar signs and that he had never discussed the signs at the Trousdale plant or at his plant with Plant Manager Beitsch of the Trousdale plant. However, he later testified on cross-examination that Mr. Beitsch had had Broyles ' sign painted for him . It is incon- ceivable to me that he could have obtained this coopera- tion from Beitsch without mentioning it to him. Beitsch was not called to testify. Within the plant, the same posters appear to have been posted as were posted at the Trousdale plant and in addition the same no-solicitation rule was posted. On some date in June, alleged by the General Counsel to be June 11, the employees were called together in the afternoon and given soft drinks and cookies and were ad- dressed by Dansky, both Meltzer brothers, and by at least one merchant from Westmoreland . Dansky was the first to speak. He introduced himself as Big Daddy, say- ing that that was his nickname at the Trousdale plant. He announced the paid vacation , 2 percent of the annual earnings , and the paid holidays and told the employees that they would get a $1,000 paid life insurance policy, warned his employees to stay away from the Union, say- ing that there was no union there and that there would not ever be. He threatened to close the plant before he would have a union.so Two or three weeks later, Dansky again came to the Westmoreland plant after the chicken dinner was given at the Trousdale plant. On this occasion , he apparently read one or both speeches and upon completion of the text, ac- cording to the credited testimony of employee Martha 60 Dansky again testified that he spoke only from the prepared text of the two speeches In one of his accounts he testified that he gave part of each text in order to avoid overlapping Later he said that he gave all of each text with the exception of some language at the end of the first Summers, "went off on his own" and warned employees who were trying to organize that if they would tear up their cards and go to the office and tell the people in the office that they had done so, everything would be all right, but if they did not stop organizing he would see that they were discharged, because he would not have that kind of people working in the factory . On this occasion, he an- swered questions from the employees , one of whom asked why they could not have their vacation in the sum- mertime. Dansky replied that what he did for one factory had to be done for all of them and that the other factories would rather have theirs at Christmastime. On this occa- sion he started naming the holidays again and this time in- stead of naming Labor Day he named New Year's Day. He was corrected by an employee and turned to Manager Beitsch of the Trousdale plant who was present, and sought corroboration from Beitsch. Beitsch did not testify about this incident. Dansky testified that he spoke only from the prepared speech. Obviously, the above matter was not in a prepared speech. I deem it significant that the speaker named the wrong holiday, which is scarcely con- ceivable if he were speaking from a prepared speech, and that he would have had to refer to Mr. Beitsch rather than to his notes upon being questioned. I credit Mrs. Sum- mers and discredit Mr. Dansky's testimony that he spoke only from a prepared speech. Conclusions Regarding Westmoreland It is clear from his testimony in the injunction proceed- ing, as well as the employee's and his own testimony be- fore me, that Broyles engaged in surveillance of the dis- tribution of handbills on every occasion on which he was aware of it. It is equally clear that, as in the other plants, Respondent hired guards, erected no-trespassing signs, and invoked a no-distribution, no-solicitation rule, all with the purpose and effect of interfering with the em- ployees in their union organizing campaign . In addition Respondent made the same threats of plant closing, threats of discharge, and promises and grants of addi- tional benefits by Dansky's speeches to the employees. By all of this conduct and by each of these acts, I find that Respondent interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. G. Decatursville Plant The Union began its campaign at the Decatursville plant on June 16. The Decatursville plant is located on a corner about a block from the city center; the plant is built only 15 or 20 feet from the sidewalk. The plant park- ing lot is across the street from the plant. Apparently, em- ployees normally park their cars on the street adjacent to or surrounding the plant. The Decatursville plant is ap- parently the largest, employing between 900 and 1,000 employees at the time of the occurrences. On June 16, 1965, three union organizers came to Decatursville: Jerry Tucker, Sam Shirah, and Geneva Barnett. The three organizers placed handbills on the windshields of the automobiles parked on the street around the plant. They split up with Barnett and Shirah speech . Neither text contains any reference to "Big Daddy ," and one text contains references that would be incomprehensible at the Westmoreland plant. Plant Manager Broyles who was present was not asked about the speech. I do not credit Dansky MARLENE INDUSTRIES CORPORATION 737 taking one street and Tucker the other of the two streets on which the plant faces. Tucker had put handbills on the windows of 8 or 10 cars, when a Cadillac convertible, oc- cupied by Plant Manager Rindone and another man, came "rushing" up to him, stopped abruptly, and both men got out. Plant Manager Rindone asked Tucker, whom he knew, what he was doing. When Tucker told him, Rindone asked for one of the leaflets which Tucker handed to him and started to walk on. Rindone glanced at the leaflet, ran after Tucker, grabbed him by the shoulder and turned him around, and wrested the leaflets from his hand. At the same time, Rindone shouted at Tucker that he would kill him if he showed up around there again, and that if Tucker saw any of Rindone's girls, Rindone would kill him.61 Tucker, deprived of his leaflets, returned to his car and Rindone and the other man to his. Rindone stopped and took the leaflets off of the cars on which Tucker had already placed them, and then turned his car around and headed back. Tucker, who was headed the other way, went around the block and met Rindone where Shirah and Barnett were leafleting cars on the other street. In the meantime, another car driven by Paul Denton, an employee who is alleged to be an agent of Respondent, and occupied by two other men pulled up and followed Rindone. The five men from the plant got out of their cars and went up to Shirah. Rindone jerked the leaflets from Shirah's hands and called him names, and told him he better not ever come back to that town, that they did not want them there, and that they were not going to have them there. Rindone then turned to Barnett and de- manded that she give him the leaflets that she had in her hands. She said "I will give you one of them" and at- tempted to hand him a leaflet. He laid his hands on her pile of leaflets and pulled at them and she advised him not to. He stepped back, without trying further to take them away from her. An argument ensued during which Rin- done called the organizers Communists and foreigners and told them not to come back to town, that Respondent had a few men at that time, but they would have a lot more next time and they would see that the union or- ganizers did not come back. He was described as shaking from head to foot and very angry. He said "I want you people to get out of town before you make me nervous." About this time, Tucker arrived and blew his horn and Barnett and Shirah went into Tucker's car while Rindone and part of his group started back toward the shop. Paul Denton returned to his car and followed the organizers out of town to Parsons, a neighboring town. They were also followed by the Cadillac which had been driven by Rindone, although Rindone was not identified at this time as the driver of his car. On June 21, the Union's attorney wrote to the sheriff of Decatur County in which Decatursville is located, in- formed him of the incident, and requested that he un- dertake immediately to investigate the facts and take ap- propriate action to stop this type of conduct and punish the perpetrators. The sheriff was further advised by tele- gram that the organizers intended to return to Decaturs- ville on June 22 to pass out leaflets. The telegram requested that ample police protection be provided at that time. Copies of the telegram were sent to the mayor and the city council, State highway police, the Governor of the State of Tennessee, and the United States Senator from the State of Tennessee. On June 22 at 4 p.m. or shortly thereafter, Plant Manager Rindone called all the employees in the plant together and announced that the union people were out- side to hand out leaflets. He advised the employees not to take a leaflet; he pointed out that by not taking a leaflet the Company would know that the employees did not want a union. He advised the employees just to ignore the Union. He further said that if the Union came up, the fac- tory would close down. Nine union agents stationed themselves on the street outside the plant. Before the employees came out of the building, Rin- done himself came out and stood leaning against a post at the entrance to the factory. Two men brought trash cans from the plant and set them on the sidewalk at the plant entrance. As the employees came out a few took the leaflets, some tore them up, and others dropped them in the trash cans. Many employees stayed around forming a crowd variously estimated at 200 or 300 people. Rin- done addressed one of the organizers, in the presence of the employees, saying "these people here do not want a union." No further incidents took place at the plant. The or- ganizers completed their leafleting and they went back to their automobiles to leave town. Paul Denton followed them down the street with a crowd of employees, pointed at the organizers, and told them that they had better not come back. As the organizers drove away in their cars, Denton ran back down the street toward the plant and shortly thereafter a station wagon owned by the Em- ployer and driven by Denton with five men in it fell in be- hind the organizers' car and followed it all the way to Jackson, Tennessee, where the organizers pulled into a police station to seek protection. On June 28 Union Agent Tucker was followed from Perryville to Parsons, Tennessee, by a carload of men driven by employee Paul Denton. When Tucker passed Parsons, Denton's automobile was joined by another driven by Massey Daniels. The two cars fell in before and behind Tucker's and attempted to run him off the road. Tucker attempted to evade them and returned to Parsons where the two cars caught up with him and blocked his car. Tucker and the other organizers left their car and were surrounded by 9 or 10 men including Denton and Daniels. Before the situation exploded into physical violence, which Denton was threatening, David Han- cock, plant engineer and an admitted agent of Respon- dent, took the union organizers into a restaurant and warned them that Manager Rindone did not want them around and told them to leave town. The organizers en- tered their car and left town with Denton and Daniels fol- lowing them and continuing to harass them. On or about June 11, the employees at the Decaturs- ville plant were called together about 9 o'clock in the morning and addressed by the Meltzer brothers and Vice President Dansky. Dansky at this time announced to the employees that they would be given two paid holidays and a week's vacation with 2 percent of what they made during the year. The version of the employees is not in- consistent with the two written speeches which Dansky testified that he had given at the Decatursville plant .62 1 " Tucker had been employed in December and January at the Decaturs- ganizing campaign. ville plant At this time he was in the employ of the Union and had taken 1,2 Dansky testified vaiously that he gave only Text I and that he gave the job at the plant in order to make preparations for the forthcoming or- both Text I and 2. 1 believe he gave both. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that he gave the written speech as he testified. After Dansky spoke, Manager Rindone made a speech in which he said "we do not want a union," and stated that if the Union came in, he would be the first to go.63 A week or so later Supervisor Johnnie Sue Pie, the stitching room supervisor and second in command under Rindone, said to Willadean Averett "I hear that the union people have been around to see you." Averett admitted that this was true. Pie said "Did you talk to them?" Averett told Pie that the organizers had given her union literature and Pie told Averett that she could not pass literature out in the plant and that if she had brought it into the plant she would have been discharged. Pie sug- gested that Averett bring the literature to Plant Manager Rindone. The next morning Averett brought the literature in a paper bag to Pie. Without looking at it Pie took Averett into Rindone's office. Rindone said "So they have been to see you." Averett answered "Yes." Rin- done said "What did they promise you, paid vacations?" Averett said "No, actually they promised me nothing." "Higher wages and paid vacations?" said Rindone, and Averett answered "they promised me nothing ." Rindone said "I know these people, they have a bill of goods to sell. Actually I could kill them." Averett left the literature on Rindone's desk. According to Pie, Rindone threw it into the trash can.64 Margaret Wright, who had been an employee of the Decatursville plant during June and the first part of July, testified that about a week after the June 22 incident she was called into Rindone's office. Rindone said "I hear that you have been talking union and I want it stopped." He said that if the Union came in that the factory would close. He pointed out that Mrs. Wright was planning to open a beauty shop and he said that if Wright went into business and the Union came in and the factory closed that her business would be hurt. Rindone went on to say that you have never seen this country or this town without a factory. Mrs. Wright further testified that her husband was present and Rindone made substantially the same remarks to Mr. Wright. Mr. Wright was not called to testify nor was Rindone. I credit Mrs. Wright's testimony in this regard. On July 2, 1965, the Union sought and was later granted a county court injunction against unlawful inter- ference with the Union's leafleting. A copy of the injuc- tion was sent to Sheriff Boroughs of Decatur County on July 7, 1965, together with a letter advising the sheriff that the Union would hand out leaflets and information on Friday, July 9, about 4 p.m. Again Rindone called the employees together before quitting time and told the em- 63 Although Rindone was present at the hearing he was not called as a witness Accordingly, I credit the testimony of Willadean Averett as to what Rindone said at the meeting 1,4 Pie was called as a witness by the Respondent and testified that Wil- ladean Averett came to her before work and told her that she had visitors from the Union. Pie answered that she could talk to them if she wanted to, that was left up to her Averett said the union organizers wanted her to hand literature out in the plant and Pie answered "Well Willadean, you know that you can't do that." Averett offered to show her the literature and Pie answered that if she wanted to bring it in she would look at it. Pie also told Averett that if she wanted to let Mr Rindone see it, that was up to her and that Pie would go to the office with her The next morning Rin- done said only that it was up to Averett If she wanted to talk to the union people that she could, and he couldn't tell her what to do. I found Averett ployees that the union people would be out front passing out union literature and that he wanted the people to go out and if they wanted to take leaflets, they could; that was up to the employees. He said to go along and not cause any trouble. While no doubt is cast by the General Counsel on the report of Rindone's speech, the subsequent events in- dicate that if the employees heard what he is reported to have said, they paid little heed to it. The union organizers arrived in a procession of five cars. As they drove past, shortly before the employees were scheduled to leave the plant, Paul Denton standing in the parking lot across the street from the plant emitted a loud, shrill whistle and the organizers saw a group of 10 to 15 men immediately emerge from the various en- trances to the plant. The union cars parked up the street and the organizers, some 12 in number, walked back toward the plant. As they approached the comer on which the plant stood, they found that a group, now num- bering up to 50 men, had gathered on the grass between the plant and the curb at the corner. The men at the corner talked among themselves and occasionally made remarks to the organizers, such as that they did not need the organizers in town. Denton and another man again brought out ashcans and positioned them around the door of the plant. The organizers took up their position along the curb strip with their leaflets. When the employees started to leave, a group of men marched out, apparently almost in formation, two or three abreast, and marched past the or- ganizers jostling and elbowing them as they passed. Then the employees commenced coming out and a crowd gathered behind the organizers in the street and on the sidewalks. Somebody started throwing firecrackers in the street behind the organizers and calling to the organizers, "you better run, watch out that's a gun," and similar re- marks. There are conflicting statements concerning the size of the crowd that gathered ranging from just a few to at least 500. 1 note in one picture, General Counsel's Ex- hibit 12(c), taken during the height of the incident, at least 135 persons can be seen closely around the entrance to the plant. A bundle boy, Junior White, nicknamed Gomer, standing on a low concrete block wall adjacent to the sidewalk, took a leaflet and set fire to it holding it over the head of one of the organizers, Vestal, and threatening to drop it on his head.65 The windows of the plant were open and Plant Manager Rindone, Johnnie Sue Pie, and other supervisors were standing in the window watching the action taking place on the sidewalk outside the credible She impressed me with her frankness and willingness to answer questions on direct- and cross-examination On the other hand the demeanor of Johnnie Sue Pie about the incidents recited above and about the other incidents that took place was less than candid in my opinion. For instance, Pie apparently was unable to recognize that anything of a violent nature took place, even characterizing the incidents of July 9 set forth below, which I find to have resulted in considerable violence, as no more than a cheerful crowd laughing and hollering Accordingly, I credit the testimony of Averett and discredit that of Pie and I find that the incident took place as Averett described it. 65 Witness Johnnie Sue Pie denied that Gomer held the burning leaflet over the head of Vestal. The picture, G.C. Exh. 12(c), clearly discloses the incident I discredit witness Pie in this regard also MARLENE INDUSTRIES CORPORATION 739 plant.66 When the employees stopped coming out of the plant, the union organizers collected and headed back towards their cars. The mob followed them up the street. Dave Hancock, one of the male employees, alleged to be an agent of the Employer, with a group of other em- ployees, came up to union organizer Tucker. Hancock grasped Tucker by the shoulder and turned him around and profanely told him he was going to beat him up. When Tucker turned back toward his car, Hancock pushed him. Tucker reached his car, unlocked it, and opened the door and one of the men with Hancock slammed the door and leaned up against it, Hancock again came up to Tucker with his fist doubled and threatened to beat him up. Geneva Barnett, another organizer, came over and pushed aside the boy leaning against the car door and Tucker entered his car. Organizer Shirah attempted to get into his car. Han- cock and the men with him grasped Shirah's arm and pulled him back out of the car and slammed the door. Geneva Barnett went to Shirah's car and spoke to the em- ployees, telling them to let Shirah get into his car. Similar incidents took place twice more. Another organizer, a girl who had been taking pictures of the melee, was grasped around the waist, pinning her arms to her side by one woman employee, while another snatched the camera from her grasp. The organizer continued to her car and climbed in. As the organizers attempted to pull away, the crowds attacked their cars, kicking out the headlight lamps, kicking in the door panels, jumping on the trunks, tearing the radio antenna off of one car, pounding on the glass, and letting the air out of the tires. Some of the employees attempted to turn over Shirah's car without success. One member of the mob, when Shirah attempted to roll for- ward, opened the hood of his car so that Shirah was una- ble to see. Shirah got out to lower the hood, Barnett had to assist him to get back into the car. As the cars pulled away, the crowd continued their attack on the cars, stepping in front of the cars to hinder them, jumping up and down on them, and rocking the cars. One of the union agents, Nierman, as he pulled away sideswiped two cars. The crowd immediately swarmed around him, forcing him to stop. The other cars which were behind stopped also, since they had agreed to stay together. Members of the crowd indicated that they were going to hold the union agents there until the police came. (There is no evidence that the police ever came.) Eventually Rindone left the plant and came to where the group was holding up the organizers. He raised his hand and said something, whereupon the crowd stepped away, letting the or- ganizers go. They proceeded up the road, out of town, stopping at the edge of town where they waited for the po- lice to come. Before they left the scene, however, the car in which Barnett was riding turned around and went back, stopping by the girl who had taken the camera. The girl handed back the camera from which the film had been removed, and the organizers again turned around and proceeded with the union cars. The above account is taken from the testimony of union organizers Vestal, Tucker, and Barnett. They are somewhat contradicted by the testimony of Johnnie Sue Pie and Mrs. Dean Bryant. Amazingly, although there is no testimony controverting the damage done to the union organizers' cars, neither Bryant nor Pie saw any violence whatsoever. Pie, whose testimony was in some respects self-contradictory and whom (supra) I have discredited, saw only the damage done when an antenna was ripped from one of the cars. However, she characterized that as an accident. It is difficult to see how anyone could ac- cidentally tear an antenna off an automobile, but that was her testimony. I discredit her. Bryant characterizes the entire incident as a group of people, largely townspeople, who are "laughing and having a big time." She testified that she too was laughing and having a big time. How- ever, on cross-examination it appeared that at least part of her activities on that occasion consisted of pounding on the glass and attempting to get at organizer Tucker and cursing at him in some of the foulest language I have ever heard a woman use. I would rather not believe that such activities are normal in any community. I discredit Bryant's testimony. The incident was clearly not peacea- ble. As the General Counsel pointed out in his admirable brief, Bryant demonstrated her lack of credibility when she testified that she did not know whether Rindone was for or against the Union. However, to me she demon- strated it much more amply by her attempted charac- terization of the incidents of July 9 as some sort of an in- nocent gamble. Whether Bryant consciously lied or un- consciously permitted her testimony to be colored by her unquestioned bias, is not necessary for me to decide and I do not. Conclusions regarding Decatursville Respondent contends that it is not responsible for the actions of Paul Denton, Massey Daniels, or any other employee, and further that it may not be charged with an unfair labor practice as a result of the assault by Manager Rindone on Shirah and Tucker because no employees were there present. Respondent apparently ignores the fact that Denton was present at the occasion of the snatching of the handbills from Shirah. I find that Denton was acting as the agent of Respond- ent throughout this campaign. He was one of the men with whom Rindone originally threatened the union agents; he led the attacks on them in the two melees which took place at the plant under the eyes of managerial and supervisory employees; his actions enforced the threats of Rindone and Hancock and are consistent therewith; he used the station wagon owned by Respond- ent (and contrary to Respondent's argument, positively so identified); and at no time did Respondent take any steps either to curtail his activities or to disavow them. He admitted his function in the campaign to an employee: Respondent contends that he can not be found an agent by his own admissions. But I find sufficient evidence ex- trinsic to Denton's admissions that he is Respondent's agent; his admissions are merely corroborative. I reject Respondent's argument that certain of Respond- ent's acts cannot be violative because of the absence of 16 Witness Pie testified that Rindone was not at the plant at this time because he was taking some people to the airport One of the pictures (G.C Exh. 12) taken during the activities under discussion shows a man looking out of the window, identified by a witness as Rindone The picture was not shown to Pie; Rindone was not called to testify I credit the testimony identifying Rindone and again discredit Pie's contrary testimony. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees when they were committed . I find-that those acts all are part of a campaign to insulate the employees from the Union , to avoid or break any contact between employees and the Union. Thus the attempts to drive the organizers, by fear and violence, out of Decatursville, snatching their leaflets , and removing them from automo- biles all have this purpose. I find this clearly to be inter- ference with the employees protected rights and violative of Section 8(a)(1). Plant City Steel Corp., 138 NLRB 839, enfd. 331 F.2d 511 (C.A. 5). In addition Respondent , by Rindone's overt surveil- lance of the handbilling, by his failure to stop the riots which his agent Denton largely fomented, by his threat to the employees of plant closure if the Union came in, by Dansky's speeches , as discussed elsewhere, by Super- visor Pie's interrogation and threat to employee Averett, and by Rindone's subsequent interrogation of Averett, and by Rindone's interrogation and threat that the plant would close to employee Wright and her husband, vio- lated Section 8(a)(1) of the Act and I so find. H. Frisco Sportswear Company Respondent Frisco is located in Frisco City, Alabama.67 The Union's organization commenced in the second week of May 1965, in the usual fashion with the distribution at the door of rain caps in which was enclosed a union leaflet. No interference with the distribution of rain caps was encountered, although it was done during the lunch period on a workday. Shortly after the distribution of the rain caps, Plant Manager Jones made the first of a series of speeches to the employees. In this speech, which was given on or about May 17, Jones informed the employees that they were receiving a pay raise in the nature of an increase of 5 cents in the amount of bonus which they would earn if they made production for all 40 hours of the given week. Jones also announced the paid vacation of 2 percent of the past year's earnings and paid holidays -in short the benefits which Respondent admitted had been granted all employees in all plants. 68 After the first speech by Jones and prior to June 22, 1965, the Employer posted an armed guard at the premises who was accompanied by a police dog, and posted eight new signs around the plant stating "no trespassing, solicitation, hand-billing of any type including advertising literature, etc. to or in parked cars will be allowed on these premises. Violators will be prosecuted." The Union appears to have made no further attempts to distribute handbills at the plant. When they were in- formed that Frisco City had a no-solicitation ordinance, they attempted to get a copy. No one was able to find a copy. They were later informed that two more ordinances had been passed requiring licensing and they were in- formed by the mayor that licenses would not be issued because the city didn't need any union. When these new ordinances were struck down and their enforcement en- 67 The evidence concerning Frisco was taken at Myrtle Beach, South Carolina. By agreement of all the parties , the testimony of General Coun- sel's witnesses Blackwell , Dorothy Burch, Douglas Burch, and Alice York was received in the form of affidavits with attachments thereto, which the parties stipulated could be received as though the witness were present and testified under oath. The evidence of Respondent's witness, Plant Manager Jones, was given in person by Jones. No other witnesses were called I have therefore not had the opportunity to evaluate the joined by a State court, the Union was informed that six more ordinances had been passed by the city. In the meantime the Union was attempting to raise in- terest among the employees by house calls and union meetings. Jones, in speeches delivered to the employees on July 12 and 26, 1965, referred to the "out of town visi- tors" of the employees. In the July 12 letter he went on "but I am also told that their visits did not pay off too well. I am proud of you." He went on to discuss the "visi- tors" making it more obvious that he had had fairly com- prehensive reports on statements made by the organizers. He ended with the following language "remember your home is your castle. You are the king or queen. If these people insist on bothering you call the police or sheriff's office and have them removed from your property. Also remember we do not want them in Frisco. Frisco will never operate as a Union Shop." On about June 22, 1965, Jones is reported in a speech to have said "I guess you noticed the signs we have up in front. It has started again. These guards are for your pro- tection, we can protect you while you are here but these people can come to your house. I can tell you what to ask them. Ask them how they spent their money and what benefits will you get." Jones did not specifically deny or confirm that he had made such a speech. Again it is re- ported by employee Blackwell that, on June 30, Jones gave another speech in which he referred to the fact that the Union had hired two former employees to have them on their payroll for organizing purposes. He pointed out that the International Union had given $80,000 to Martin Luther King for a march and asked "Is this how you want your money spent?" Jones stated that it is in the contract (presumably the contract of rental for the plant) if the Union comes in the plant will close down. Jones did not specifically deny the speech attributed to him on or about the 30th of June. Although he did not specifically say so, his testimony left the inference that he made no speeches other than those that were written out and produced at the hearing. However it appears he made additional speeches; at least two written speeches were produced and not put in evidence. He testified also that each speech had been witnessed. I note, however, that one of the three put in evidence was not signed by wit- nesses as he testified all speeches were. I do not conceive that testimonial evidence that Jones did and said something at one time is controverted by Jones' testimony that he did and said something other than that at another time. I therefore conclude that he did say what he is alleged to have said on June 30. Furthermore, in view of the inconsistency between Jones' testimony and that of Dansky and the testimony of Jones that he did not know that the union organizers were at the plant and that he did not know whether or when they had ever hand- billed at the plant, I find considerable difficulty in credit- ing Jones' testimony even when he stands uncon- tradicted. It is alleged that Jones posted on the bulletin board posters and other articles which contained threats of plant testimony of General Counsel's witnesses This was called to his attention at the time this stipulation was entered into 68 Jones testified that these benefits were his own idea and that he did not receive authorization from the New York office However, he testified that he did inform the New York office that he was granting the benefits because he had to receive an additional price for the garments he produced in order to pay the additional 5 cents an hour. MARLENE INDUSTRIES CORPORATION 741 closure. Jones admittedly posted everything that came to his attention concerning the Union and the organizing at- tempt. This included apparently some union handbills and articles from the local newspapers where the other plants were located. In explanation of the latter, Jones testified that he subscribed to the newspapers covering each com- munity in which Respondent has a manufacturing plant. There is no explanation of why Jones did this or when he commenced or whether he still does it. Among other documents posted by Jones was a clipping stating that a raise went into effect May 17 at the Frisco plant made retroactive to November 30, 1964 , and pointing out that each employee would receive a bonus of 2 percent of their yearly earnings at Christmas. From its text the newspaper article obviously was written after May 17. He also posted an editorial from the Loris Sentinel dated July 14, 1965, with the admonition written across it "this is a new one, read carefully." The article contains the fol- lowing language: When the Union pressure became too great to stomach, Marlene closed the doors and for a number of years had their products made in Japan, where they imported and operated successfully. But they chose to work Americans and came to the South. Now again they are being pestered by or- ganizers. If the Union succeeds, it's a certainty that again Marlene's huge family of workers will be without jobs. We do not believe that our people will succumb to the Union tactics and ever vote for those outsiders to take weekly dues away from them, but the organizers will continue to try. All of the above language was underlined. Jones claimed that he did not know who underlined it, it was done after he posted it. Another clipping that Jones posted was a reprint of a dodger distributed to the employees at the Aynor plant by the Aynor Development Corporation and subsequently printed in a local paper near Aynor, discussed above. None of the employees' affidavits mentioned that Jones had posted the Union's handbills or such of them that came to his attention as he claimed. On cross-examina- tion he was unable to identify which handbills he had posted. Under all the circumstances, I do not credit his assertion, unsupported as it is, that he posted them. Finally, I do not rely to any extent whatsoever on Jones' assertion that he does not believe that any em- ployee in the plant could have known from anything he said whether he was prounion or antiunion. The speeches admittedly by Jones would unquestionably, in my opinion, give rise to a belief in any person who heard them that Jones was antiunion and was advising, if not warning, the employees to stay away from the Union. The complaint alleges that Jones engaged in surveil- lance of the employees in their union activity on various occasions. I find no evidence in the record that Jones en- gaged in any surveillance at all. On the other hand his speeches in the record, dated July 26 and July 12, in which Jones states his knowledge that union agents have called on employees in their homes and states what the union organizers are alleged to have said to the em- ployees, in my opinion creates an impression of surveil- lance. This, however, is not alleged. Evidence was ad- duced that a proposed union meeting was under surveil- lance by a named citizen of the community. However, no evidence was adduced connecting the citizen with the management of the plant and I cannot infer such connec- tion. Furthermore there is no evidence that any employee came to the meeting but that employees were warned that the meeting was under surveillance. However, the record discloses no evidence that Respondent is in any way responsible for the warnings given the employees. Ac- cordingly, insofar as the allegation of surveillance is con- cerned, I find it unsupported in the record and I shall recommend its dismissal. Further I find no support in the record for the allega- tion that Jones on several occasions, since mid-May, has told employees not to accept union literature. While I recognize that I do not have complete reports on all six speeches given by Jones, there is nothing reported from which I can infer that such instructions were given em- ployees. Accordingly, I shall recommend the dismissal of this allegation. I find that Respondent, by Jones' speeches threatening plant closure if the Union's organization was successful, by the grant of employee benefits, by the enforcement of its no-solicitation rule, and by the posting of the Loris Sentinel editorial and the Aynor Development Corp. handbill, "Who Do You Believe?" on the employee bul- letin boards interfered with, restrained, and coerced its employees in the exercise of their rights in violation of Section 8(a)(1) of the Act. 1. The Participation of Marlene in A ntiunion Campaign Respondent contends that Marlene, as a separate enti- ty, had nothing to do with any unfair labor practices that might have been committed at the various plants. How- ever, it is clear from the testimony of Vice President Dan- sky that this is not the fact. From the inception of the Union's organization at the seven Marlene plants Dansky was informed by each of the managers, practically on a day-by-day basis, of the steps taken by the Union. He made known to the managers that he expected them to combat the Union "every possible way they could." Although he denied he gave the managers instructions on firing employees he testified that they knew what to do, and how to combat these things. Dansky himself em- barked on a round of speechmaking at which he made at least one speech at each of the plants and two at Aynor. In these speeches he admittedly announced the grant of vacation and holiday pay and the promise of insurance. According to Dansky these were written speeches and he did not vary from the text. The employees who testified had a different story. Dansky testified that he used two written speeches (Resp. Exhs. 23 and 24) generally referred to as Text 1 and Text 2, respectively. Dansky testified that he read Text 1 at Aynor on May 27, Text 2 at the Industry Ap- preciation dinner at Aynor High School, Text I and all of Text 2 except one paragraph at Loris, to the combined employee force of both Loris plants, and at Decatursville; that he read both texts at Westmoreland except the clos- ing lines of Text 1 and that at Trousdale he delivered Text 1. However later in his testimony he testified that he used both texts in their entirety at Trousdale. I have dealt with each of the speeches in the context of the plant at which they were given. It is clear that Respondent vio- lated 8(a)(1) of the Act in each of the five plants in which Dansky spoke by the promise of and grant of benefits to the employees in the form of paid holidays, insurance, 308-926 0-70-48 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and vacation or bonus pay, Hermann Equipment Manu- facturing Co., 156 NLRB 60; and by granting such benefits to the extent that they were granted. See Preston Products Company, Inc., 158 NLRB 322; Baltimore Catering Co., 148 NLRB 970; N.L.R.B. v. Exchange Parts Co., 375 U.S. 405. In addition, I have found that Respondent, by Dansky, made various threats and promises in addition to the matter contained in his written speeches. These threats and promises are in themselves violative of Section 8(a)(1) of the Act in that they interfere with, restrain, and coerce employees in the exercise of their rights. I have carefully read and considered these speeches purportedly delivered by Dansky at the various plants. Against the background of studied and vehement opposi- tion to the Union, shown in each of the plants by Respond- ent, it is my opinion that these speeches are in them- selves violative. I have discussed Text 1 in connection with the incidents at the Aynor plant. Text 2 bears a simpler message but a potent one. After a diatribe against the Union, Dansky announced the addi- tional benefits of a week's full pay, a $1,000 fully paid life insurance policy, two paid holidays for the forthcoming year, and additional paid holidays in the future and then stated "you have a choice ladies and gentlemen, benefits gradually, or do you want this factory back in the north and you folks with no steady jobs." I find that by the content of Dansky's speeches con- tained in Text 1 and Text 2 in addition to the side com- ments and additional remarks he made at various of the speaking occasions, set forth in the sections of this report dealing with each plant, Respondent interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. The complaint alleges that at all of its plants Respond- ent maintained the following rule: A no-solicitation and distribution of literature policy. There shall be no solicitation of any kind on com- pany property including parking lots by persons-not employed by the Company. There shall be no sol- icitation of any kind, except as noted below, by em- ployees which in any interferes with production. However, the Company will, as in the past, provide methods for the collection of donations to the United Fund. This regulation does not prohibit the solicita- tion by employees, in case of death, injuries, or pro- longed illness. The supervisor must be notified of the nature and time of such solicitations and permission granted. Good houskeeping in the plant contributes to safe and quality production. In order to maintain good housekeeping, the distribution in the plant by anyone of any literature, pamphlets or handbills will not be permitted except such distribtuion as may be made by management in aid of its operation. Signed: The Management Quite aside from the fact that the no-solicitation, no- distribution rule was applied in a discriminatory fashion in that the Employer apparently had at no time felt that the rule was applicable to its own efforts to solicit support against the Union, the rule is invalid. It encompasses union solicitation and distribution on nonworking time in nonworking areas, which the Board has found in the past to be beyond the permissible scope of such rules. The fact that the rules would impliedly allow solicitation and dis- tribution of union literature if permission were obtained in advance did not validate them as the Employer may not predicate the exercise of rights protected by Section 7 of the Act on his own authorization. See American Coach Company, 158 NLRB 415.69 Respondent contends that at the Loris No. 2 plant the rule was not enforced but another rule, limited in its application to working time and working areas, was promulgated there by the plant manager. Respondent offered no evidence, however, that the prior rule was rescinded or that the employees were notified that it was no longer enforced. Respondent ar- gues that there is no proof that the prior rule was ever en- forced at that plant. If such proof had been offered, I would not have received it, inasmuch as Respondent ad- mitted in its answer the maintenance of the rule at all of the plants. The contention of Respondent therefore with regard to the Loris No. 2 plant must be rejected. See Famco, Inc., 158 NLRB 111. IV. THE REMEDY I have found that the Respondent at each of its seven plants as alleged has engaged in certain unfair labor prac- tices violating Section 8(a)(1) and at two of them actions violating Section 8(a)(3) of the Act. I shall recommend that it cease and desist therefrom and take certain affirm- ative action which is designed to effectuate the policies of the Act. It will be recommended that Respondent offer those employees whose names appear in the Appendix [omitted from publication] immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they would have earned as wages from the date of the discrimination against them to the date of offer of reinstatement less interim earnings, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440, to which shall be added interest at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that Respondent preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records and reports necessary to analyze the amount of backpay due and the right to reinstatement under the terms of these recommendations. 69 It is obvious that at least so far as Plant Manager Martin and Epper- simons are concerned the request for permission would have been denied if made. MARLENE INDUSTRIES CORPORATION 743 In order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend that the Respondent cease and desist from , in any manner, in- fringing upon the rights guaranteed in that section. N.L.R.B. v. Express Publishing Co., 312 U.S. 426; N.L.R.B. v. Entwistle Manufacturing Co., 120 F.2d 532 (C. A. 4). The main thrust of Respondent's unfair labor practices is and has been to insulate its employees at all of its plants from the dissemination by the Union of facts and argu- ment and to raise in its employees a fear that union or- ganization will certainly result in financial harm to the employees and the community by discharge or plant removal. To accomplish the purpose of insulating the employees, Respondent took steps normal and abnormal . It promul- gated a no-solicitation , no-distribution rule which it en- forced on its plant property within and without the buildings. It posted no-trespassing signs on all property it occupied and in various places hired guards, sometimes with dogs , to keep union representatives from setting foot on its property. In addition , by its coercive threat to remove its plant, in some places, notably Loris, Frisco City, Westmoreland, Trousdale County, and Decaturs- ville, secured the cooperation of local law enforcement authorities who made it difficult or impossible for union agents to carry out their educative functions. When, nevertheless, union agents were able to appear at their gates with union literature for the employees, Respondent at various of its plants by the device of warning em- ployees not to accept union literature , maintaining sur- veillance of the union agents distributing union literature, advising and warning employees to roll up their automo- bile windows and move away from the plant rapidly, and even by stopping traffic and directing the employees out of the employee lots, managed , with great success, to keep the employees from taking union literature. Where this was not completely successful Respondent took more direct action , warning and threatening individual employees that they faced discharge if they were seen ac- cepting union literature. In two plants, Aynor and Loris No. 2, Respondent discharged employees , as I have found above, for the crime of accepting union literature and evidencing approval of union objectives. In pursuit of its latter objectives Respondent coerced employees by various means, including the discharge of employees who attended union meetings or otherwise supported the Union or even signed cards for the Union, and the rallying of unruly mobs of employees at Loris, Aynor, Decatursville , and Hartsville who together with mangerial and supervisory employees assaulted the union agents, damaged their automobiles , on several occasions chased them out of town, threatened them with physical harm, snatched their leaflets from their hands , tookpic- tures of their activities , and otherwise made it clear to em- ployees that union adherence could be a dangerous and uncomfortable experience. Respondent's campaign was quite successful in Harts- ville, and at Decatursville it touched off scenes of violence which law enforcement authorities apparently did not even attempt to curtail What is more to the point, perhaps, it was apparently successful in impeding union organization. The Charging Union has submitted a memorandum espousing certain proposed remedial provisions which it contends are called for by the nature and scope of the Employer's activities herein above detailed, and agreeing with the General Counsel that conventional Board remedies are inadequate to undo the effect of the unfair labor practices committed by Respondent. The General Counsel adduced evidence that, except at the plant premises before, during, and after working hours, it is a practical impossibility for the Union to communicate with the employees through the usual channels such as mail, telephone, or house calls, inasmuch as many, if not the majority of the employees, do not live in the small com- munities in which the plants are located. In support of its antiunion campaign, the Respondent had available, and used, all of its facilities including "captive audience" speeches, plant bulletin boards, direct mail through its agent, Aynor Development Corporation, and individual interviews of employees by supervisory and managerial personnel. While a right to prohibit access to private property has long been accepted in the law, Respondent has used this right to prevent any communication between employees, at or about the plants, by its imposition of no-trespassing and no-solicitation rules enforced by guards, sometimes with dogs, and by its undisciplined armies of bundle boys or service boys at various plants as well as by the technique of expediting the departure of the employees from its various plants, abjuring them to roll up their car windows and refuse to accept literature and then watching them to be sure the instructions were followed. All seven of the plants concerned herein are located in small towns and draw employees from other towns or sur- rounding rural areas. As few as 5 percent, in Frisco City, and up to 15 to 20 percent, in Hartsville, of the employees live in the town in which the plant is located. Up to 98 or 99 percent of the employees drive or are driven to work. Only in Decatursville is immediate access to the em- ployees afforded, and that only because the plant parking lot is situated across the street from the plant. We have seen the desperate lengths Respondent went to in order to eliminate any advantage to the Union resulting from that circumstance. This is precisely the situation in which "the right to ex- clude from property has been required to yield to the ex- tent needed to permit communication or information on the right to organize."70 Accordingly, as the General Counsel requests, I shall recommend that Respondent cease and desist from in any manner interfering with the access of employees to union organizers during nonworking time on plant approaches or parking lots. The Board has in the recent past recognized the futility, under some circumstances, of its normal reinstatement and notice posting remedies and has directed additional remedial action on the part of the employer. It is my opinion that the situation in the instant case shows a necessity for augmented remedial procedures even greater than those which gave rise to the Board's evolve- ment of the new remedies. Respondent herein acted with even more fertile imagination and greater consistency than was evidenced in J. P. Stevens and Co., 157 NLRB 869, H. W. Elson Bottling Company, 155 NLRB 714, or 70 N L.R.B. v. Babcock & Wilcox Co, 351 U.S 105, 112. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crystal Lake Broom Works, 159 NLRB 429 . I deem its remedial provisions , in those three cases , justified here, particularly with regard to the requirements that Respond- ent shall mail copies of the notice to all their employees, that Respondent shall grant the Union reasonable access for a reasonable period of time to its bulletin board and other places where notices to employees are customarily posted, and that the Respondent shall make available to the Union, upon request, at a mutually agreeable time within 3 months of the decision , suitable facilities customarily used for employee meetings for a 1-hour meeting on company time, at which the Union may speak to the employees assembled. In addition , the record reveals that each of the plants, herein, has a high turn- over, that employees come and go , and that employees not presently employed but with a reasonable expectancy of future employment have been subjected to Respond- ent's coercive conduct . The record further reveals that the communities in which these plants are located have, in some instances , been involved by the direct action of Respondent in its antiunion campaign. In my opinion, the posting of notices in the plant and the mailing of notices to employees will not adequately reach the ex-employees, prospective employees, and community populations who have been affected by Respondent's action and to whom the remedy should be made known. Accordingly , I shall recommend that Respondent take steps to publish the notice, at its expense, in the newspapers of general circu- lation within each of the communities in which the plants are located. The record reveals that in Hartsville the Vidette is such a newspaper; and in Loris the Sentinel is such a newspaper and both have been used heretofore in the campaign with which we are here dealing. I recom- mend that the newspapers to be used for this purpose be selected by the Regional Director and that the notice be published at lease once in each of 3 consecutive weeks. Because of the violent activity which took place at several plants, in each case with the participation of em- ployees of Respondent , I further deem it necessary that Respondent instruct the employees , including super- visors and managerial employees, that physical assault or- threats of physical violence directed at any labor or- ganization will not be permitted on the plant premises at any time, shall take effective action to enforce such a rule and to secure adequate protection to all persons lawfully on its premises , including organizers for the Charging Union or any other labor organization. The Charging Union requests as a remedial provision that the Employer shall furnish the Union a list of the names and addresses of all employees which shall be kept up-to-date at reasonable times. I am not unaware of the fact that there are employees to whom the Union is anathema; and at whose homes visits by union organizers would be unwelcome. On the other hand , I agree with the Union , under the circumstances here present, any at- tempt to talk with employees or distribute literature at or near plant property might well be meaningless. Ac- cordingly , by way of compromise , I shall recommend that at reasonable intervals the Union may prepare such literature as it wishes to distribute to Respondent's em- ployees and may provide envelopes and postage and Respondent shall be required to affix the names and ad- dresses of each plant employee and mail the literature to the employee. Only by this device can I see a reasonable reconciliation between the employees ' right of privacy on the one hand and the Union's right of publicity on the other, under the circumstances herein. The Charging Union and General Counsel seek an order requiring Respondent to call his employees together and read the notice to them . I shall not so recom- mend. The notice is necessarily of such length that such a reading could well become meaningless before it is completed. I believe adequate provision has been made to put copies of the notice into everyone 's hand. The Charging Union also recommends , looking toward collective bargaining, that in the event the Union achieves within a year and presents proof to the Regional Director or the Board of its majority status at any of the Employer's plants by such means as authorization cards, as a matter of compliance the Employer shall be required to bargain with the Union . The Union argues that such an order can not be found to violate the majority principle of Section 9(a) of the Act. However, in my opinion, such an order has two fatal defects . First, it would provide bar- gaining on the basis of a unit which the Board has not had an opportunity to consider but which the statute provides the Board shall determine, and, second , it provides for bargaining on the basis of a card check, a procedure which the Congress specifically rejected in 1947 and which it has not seen fit to reinstate in the Act. I will grant, as the Union argues, that such an order would short- en the procedure for obtaining bargaining order and eliminate the separate proof of bad faith or that a free election is not possible. However, the Act envisages a right in the employees to be or not to be represented ac- cording to their desires, freely expressed, and provides the safeguards of Section 9(c) to protect the right. I do not believe such an order is warranted in a circumstance, such as we have here, where a majority of the employees have yet to be heard from. Conclusions of Law (1) Marlene Industries Corporation; Decatursville Sportswear Co., Inc.; Trousdale Manufacturing Co., Inc.; Westmoreland Manufacturing Corporation; Frisco Sportswear Co., Inc.; Aynor Manufacturing Company, Inc.; and Loris Manufacturing Company, Inc., are each of them employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and together comprise a single integrated employer within the meaning of Section 2(6) and (7) of the Act. (2) International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. (3) By discriminating in regard to the hire or tenure of employment or any term or condition of employment of those employees whose names appear in the attached Ap- pendix [omitted from publication], thereby discouraging membership in the above -named Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. (4) By engaging in interference , restraint, and coercion Respondents , and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. (5) The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication. ]