C & M Sportswear Manufacturing Corp.

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C & M Sportswear Manufacturing Corporation and Amalgamated Clothing Workers of America, AFL-CIO. Cases 4-CA-4910 and 4-CA-5003 June 10, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On March 13, 1970, Trial Examiner James V. Constantine issued his Decision in the above-enti- tled proceeding, finding that 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. He further found that Respon- dent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed cross-exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the proceeding and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the following modifications: 1. The parties stipulated that 71 employees were in the unit on June 2, 1969, when the Union de- manded recognition. Additionally, the Trial Ex- aminer found that six other employees whose status was contested were also in the appropriate unit on that date. Four of these six employees, Burridge, Bennett, Warner, and Witter, had formerly been employed by Respondent and had terminated their employ- ment prior to the date recognition was requested. Thus, Burridge left in February 1969 to take a position as an airline stewardess; Bennett left in Au- gust 1968 to help in her husband's business; Witter resigned in May 1967 to accompany her husband overseas; and Warner left in July 1968 to have a baby. They were not rehired until after the strike began in August 1969. The Trial Examiner found that the four women should be included as part of the unit on the theory that Respondent had granted them leaves of absence when they had initially quit their jobs. We find, however, that the four women left Respondent's employ for reasons which clearly in- dicated intentions permanently to quit. Further, President Vecchio admitted that he routinely granted leaves of absence to departing personnel. Under these cirsumstances, we cannot rely on Vecchio's self-serving statement that these em- ployees had merely taken leaves of absence. Ac- cordingly, we exclude them from the unit as of the date of demand for recognition. The status of Cora Buckingham was also in issue. The Trial Examiner found that she was not a super- visor, as General Counsel contended, on the grounds that she merely relays instructions from an acknowledged supervisor, Bowman, grants em- ployees time off or lays off employees only after consulting with Bowman, gives instructions of a routine nature, and spends most of her time at manual labor. The record discloses, however, that Supervisor Bowman works on the second floor of the plant and has little contact with the shipping department located on the, first floor. Buckingham is regarded by the employees in that department as their super- visor, she assigns work to them , grants them per- mission to leave, instructs them in the performance of their duties, recommends that employees be re- warded for outstanding service, and is responsible for counting items which leave the shipping depart- ment. Additionally, she is listed as "head of shipping room" on Respondent's payroll, was characterized as a supervisor by Vecchio at an unemployment compensation hearing, and received a bonus generally granted to those who are super- visors. In weighing all of the above factors, we conclude, contrary to the Trial Examiner, that Buckingham is a supervisor and may not, therefore, be included in the unit. It follows that coercive remarks made by her to employee Wanda Howard and her interroga- tion of LaVerne Shoemaker which the Trial Ex- aminer credited but which he held could not be at- tributed to Respondent, do, in fact, constitute viola- tions of Section 8(a)(1). ' In the absence of exceptions thereto, we adopt pro forma .be Trial Ex- aminer's findings as to the 8(a)( I) violations committed by Respondent President Vecchio and Supervisor Bowman. C & M SPORTSWEAR MFG. CORP. 231 In sum, then, with the inclusion of Shoemaker who was found to be discriminatorily discharged, the total number of employees included in the unit as of the date of demand for recognition was 72 rather than 77 as found by the Trial Examiner. This does not alter his finding, however, that the Union, having obtained 42 valid authorization cards, had established a majority by June 2, 1969. 2. We agree with the Trial Examiner's conclu- sion that Respondent's unfair labor practices I ave erased the possibility of holding a fair election and that a bargaining order is, therefore, an appropriate remedy. In the instant case, there is no question that the Union had a valid majority on the date that it requested recognition. Respondent refused to recognize the Union , insisting instead that an elec- tion be held. Yet at the same time, it engaged in serious misconduct designed to undermine the Union's strength and prevent an election which might accurately reflect the employees' free choice. Given these circumstances, it is clear that Respon- dent's refusal to grant recognition to the Union vio- lated Section 8(a)(5) of the Act and that a bargain- ing order is therefore warranted. Moreover, we find that even were an 8(a)(5) violation to be absent here, Respondent's unfair labor practices were so numerous and pervasive as to require a bargaining order to repair their unlaw- ful effect.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent, C & M Sportswear Manu- facturing Corporation, Meshoppen, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 2 See N L R B v Cassel Packing Company, 395 U S 575 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner : This is a consolidated unfair labor practice case litigated pursuant to Section 10(b) of the National Labor Relations Act, as amended, herein called the Act (29 U.S.C. 160(b)). It consists of two cases (4-CA-4910 and 4-CA-5003) which were com- bined for the purpose of trial . In Case 4-CA-4910 the original charge was filed on May 15, 1969. It was first amended on May 22, 1969, and again amended on June 13, 1969 . In Case 4-CA-5003, the original charge was filed on August 22, 1969. All charges name C & M Sportswear Manufactur- ing Corporation as the Respondent . The Charging Party in both cases is Amalgamated Clothing Work- ers of America , AFL-CIO. On October 29, 1969, the General Counsel of the National Labor Relations Board , herein called the Board , through the Regional Director for Region 4 (Philadelphia , Pennsylvania), consolidated said cases and issued a consolidated complaint based on all the charges and amended charges . In essence said complaint alleges that Respondent has violated Section 8(a)(1), (3), and ( 5), and that such con- duct affects commerce within the meaning of Sec- tion 2(6) and ( 7) of the Act. Respondent has an- swered . As orally amended at the hearing, said answer admits some facts but denies that Respon- dent committed any unfair labor practices. Pursuant to due notice , the consolidated case came on to be heard , and was tried before me, at Tunkhannock , Pennsylvania, on December 15, 16, and 17, 1969. All parties were represented at and participated in the trial and had full opportunity to introduce evidence , examine and cross-examine witnesses, file briefs, and offer oral argument. Although oral argument was waived , each of the parties has submitted a separate brief. This consolidated case presents the following is- sues: 1. Whether at all material times Amalgamated has been the majority collective-bargaining representative of employees in an appropriate unit of Respondent's employees. 2. Whether Respondent refused to bargain col- lectively with Amalgamated as such majority representative. 3. Whether Respondent engaged in conduct con- travening Section 8(a)(1) of the Act, by ( a) coer- cively interrogating employees regarding their union activities; ( b) threatening -employees with reprisals if they selected Amalgamated as their col- lective-bargaining representative ; (c) promising benefits to employees if they rejected Amalgamated as their said representative; (d) telling employees it knew who had signed authorization cards for Amal- gamated; and (e ) warned employees not to talk about Amalgamated. 4. Whether Respondent temporarily laid off Roselyn Daily and temporarily laid off and then discharged employee LaVerne Shoemaker for en- gaging in union and other protected activity. 5. Whether a strike of Respondent's employees was caused by Respondent's unfair labor practices. 6. Whether Cora Buckingham is a supervisor or agent for whose conduct Respondent is liable. Upon the entire record in this case, and from my observation of the witnesses, I make the following: 232 DECISIONS OF FINDINGS OF FACT I. AS TO JURISDICTION NATIONAL LABOR RELATIONS BOARD Respondent, a Pennsylvania corporation, is en- gaged at Meshoppen, Pennsylvania , in manufactur- ing and selling men's clothing items. As of December 15, 1969, Respondent during the year 1969 sold and shipped goods valued in excess of $50,000 directly to points outside the Common- wealth of Pennsylvania. Its sales directly to such points were valued at less than $40,000 in 1966 and less than $12,000 in 1968, but they exceeded $50,000 in value in 1967. During 1966, 1967, 1968, and 1969 (until November 1), Respondent made out-of-state purchases valued at less than $5,500, $13,000, $13,000, and $10,000, respec- tively. See Respondent's Exhibit 5. As of the date of the hearing of this case, I find that Respondent is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act, and that it will effec- tuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, herein called Amalgamated or the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. GENERAL COUNSEL'S EVIDENCE RELATING TO THE UNFAIR LABOR PRACTICES A. The Refusal to Bargain 1. The appropriate unit The parties have stipulated that the following em- ployees comprise an appropriate unit for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of Respondent, employed at its Meshoppen, Pennsylvania, plant, exclusive of office cleri- cals and supervisors as defined in Section 2(11) of the Act. 2. The number in the appropriate unit The parties stipulated that at least 69 employees were employed in the appropriate unit when the Union requested recognition on or about June 2, 1969. See General Counsel 's Exhibit 2. Dispute has arisen as to whether certain other persons should also be included therein . These are : Irene Kreus, Diana Burridge, James Williams, Edith Bennett, Patricia Warner, Joan Witter, Cora Buckingham, and LaVerne Shoemaker. It has been stipulated, and I accordingly find, that Kreus and Williams belong in the unit . Hence they will be added to the 69 admittedly in the unit. Bennett, Warner, and Witter are employees who had been on strike when they were called in August 1969 by President Vecchio of Respondent. I find thereby that they were members of the unit and they should be included therein. Diana Burridge left Respondent to be an airline stewardess. She also worked for a while "in some summer resort." While so employed on these two jobs she was given a leave of absence by Respon- dent. Later, when Diana's mother informed Pre- sident Angelo Vecchio that Diana was available for work, Vecchio rehired her . Upon these facts I find that Diana remained an employee of Respondent while away on leave of absence, and that, con- sequently , she should be included in the unit. For reasons more fully discussed later in this Decision , I find that Buckingham and Shoemaker belong in the unit and should be included in it. Buckingham has been found to be an employee and not a supervisor . Shoemaker has been found to have been discharged for union activity. Such per- sons do not lose their status or identity as em- ployees . Citation of authority would be supereroga- tory. Hence I find that 77 employees were em- ployed in the unit when the Union made its request for recognition. 3. The union's majority In the early part of April 1969 , the Union com- menced an organizational campaign among Respondent's employees . It was in charge of Mur- ray M . Gassman, Amalgamated 's national represen- tative. In part this involved holding meetings for employees and house-to-house visits by Gassman. At many homes Gassman succeeded in "signing up" employees . He also secured signed authoriza- tion cards from employees at such meetings and other locations than homes. These are in evidence as General Counsel 's Exhibits 3a-3jj . However, that of Edna Sarnosky (General Counsel's Exhibit 3hh) was not signed in Gassman's presence. Neverthe- less, she received the card from him and sometime later returned it to him with her signature thereon. Further, in response to his question to her when she handed him her card, she replied that she had signed the card. Signatures to a few cards were obtained by other employees rather than by Gassman. These signa- tures were "verified" by Gassman by personally asking such subscribers whether they signed such cards. They all answered affirmatively. This group of cards is in evidence as General Counsel's Ex- hibits 3kk-3pp. Accordingly , I find that when the Union requested Respondent to recognize it on or about June 2, 1969 , it had 42 cards . Since I have found 77 employees in the unit, I find that the Union en- joyed a majority in the unit on or about June 2, 1969. By a telegram dispatched on May 31, 1969, Amalgamated requested Respondent to recognize it C & M SPORTSWEAR MFG. CORP. 233 as the majority collective-bargaining representative of the employees in the appropriate unit and of- fered to prove its majority by a card check con- ducted by an impartial third person. This was delivered on June 2, 1969. See General Counsel's Exhibit 5. Respondent by letter dated June 4, 1969, replied expressing doubt of majority and refusing recognition unless and until said majority was established in a Board-conducted election. See General Counsel's Exhibit 6. B. Interference, Restraint, and Coercion As found above, Union Representative Gassman held several meetings of employees. One of these was conducted at the Pink Apple Restaurant on Route 6 between Tunkhannock and Meshoppen, Pennsylvania. Seated "about 10 feet from the meet- ing place" was Respondent's forelady, Minnie Bow- man, whom I find to be a supervisor and agent of Respondent within the meaning of the Act. Although Gassman protested to Mrs. Bowman that she "had no right ... to be sitting there so close," she insisted that it was a public place where she "put in" her take-out order. According to Gassman the take-out order counter was located in a dif- ferent section of the restaurant. One of the em- ployees present at this conversation was Roselyn Daily, who shortly before had introduced Gassman to Bowman. About June 3, 1969, a meeting of employees called by Gassman formed an organizational com- mittee consisting of several employees, including Roselyn Daily. See page 2 of General Counsel's Ex- hibit 7. By letter dated June 17, 1969 , Gassman in- formed Respondent of the existence of such com- mittee and disclosed in it the names of the em- ployees serving on it. (See General Counsel's Ex- hibit 7. The employee committee members' signa- tures to the first page of said exhibit and the signa- tures appearing on the attachment thereto did not appear on the letter transmitted by Gassman to Respondent. The attachment contains signatures of employees attending the meeting organizing said committee. Both sets of signatures are found only on Gassman's copy.) This committee met on occa- sion with Respondent's president, Angelo Vecchio. Respondent was notified on July 10, 1969, of addi- tions to the committee. See General Counsel's Ex- hibit 8. By letter of July 10, 1969, Amalgamated again made a demand on Respondent for recognition and again offered to prove its majority. (See General Counsel's Exhibit 8. Employee signatures appearing on this exhibit were not on the original sent to Respondent, but are found on the Union's copy.) Respondent did not answer this letter. By letter dated August 18, 1969, the Union wrote to Respondent again demanding recognition and of- fering to prove its majority. In this same letter 38 employees joined in said demand for recognition and informed Respondent that the Union was authorized to display to Respondent their signed authorization cards. They personally signed an at- tachment to the letter. See General Counsel's Ex- hibit 9. No reply was made to this by Respondent. About August 8, 1969, the Union called a strike of Respondent's employees because Respondent refused to recognize the Union and the committee of employees ' and these unfair labor practices." On August 7, 1969, 37 employees signed a resolu- tion authorizing the strike. See General Counsel's Exhibit 10. Roselyn Daily, a sorter at Respondent's plant, signed a union card about April 22, 1969, at a union meeting held in the Hayloft Restaurant in Lawton, Pennsylvania. The next day Supervisor Minnie Bowman asked Daily "how the Union meet- ing was." Daily replied that she enjoyed it. Then Bowman asked if Daily inquired of the Union what the hourly wage would be `if the Union got in." At this point President Vecchio joined them. He asked Daily how the chicken tasted at that union meeting. About 7 a.m. on April 29, 1969, President Vecchio showed Daily and other employees a list of benefits to be obtained by the Union which Gass- man outlined in a letter which Vecchio held in his hand. At the same time Vecchio assured the em- ployees that it was up to them whether they joined the Union. Vecchio also asked Daily to ask questions about such benefits at a Union meeting scheduled for later that night. Daily promised to do so, but she never conveyed the answers to Vecchio. However, about 11 a.m. Vecchio asked Daily whether Daily informed some persons in the beauty parlor that enough union cards had been signed "that the Union was coming into the shop." Daily denied uttering such a statement. About 15 minutes later Supervisor Bowman told Daily that the latter was laid off. At the time Daily was not performing her usual task of sorting but was pressing jackets. When Daily asked for an ex- planation, since there was "plenty of work here," Bowman replied that she merely was carrying out orders and that Daily should speak to Vecchio as to why she was laid off. Then Daily saw Vecchio and accused him of punishing her for going to union meetings and being prounion. But Vecchio denied this. However, he did add that "from now on" any union card signer whose regular work ran out would be sent home and would not be assigned to other duties as in the past. This, he continued, was because the employees were "grabby" and were not satisfied. The next day Daily saw Vecchio and again ac- cused him of laying her off because she signed a union card. Nevertheless, he denied it. Daily did not return to work until the following Tuesday, May 6, 1969. On May 6 some mixup occurred in obtaining the proper sizes of some clothes. This caused Vecchio to remark to Daily that, if Daily had her mind on her work instead of on the Union, Daily would not 234 DECISIONS OF NATIONAL have made that mistake . Continuing, Vecchio said that "this is the kind of people that go to the Hayloft to the Union meeting." Daily at the trial in- sisted the error was committed by someone else and was not attributable to her. About May 12 , 1969, Daily was again laid off for about a week for lack of sorting work . But other work was available, according to her. This other work was performed by Malcolm Burridge, a new employee who had been hired 3 or 4 weeks before this. Daily saw Supervisor Bowman at the union meet- ing of May 6, 1969, which was conducted in the Pink Apple Restaurant. She there introduced Union Representative Gassman to Bowman. Some time on June 9, 1969, President Vecchio asked Daily if she had solicited employees in the ladies' restroom to sign union cards . But she categorically denied this . Nevertheless he insisted that she had and produced two witnesses who claimed they saw Daily do so . When Daily still de- nied it Vecchio brought forth employee Virginia Blaisure . At this pont Blaisure said she saw Daily attempting to sign up employee Betty Lou Harvey. Daily responded by stating that such solicitation oc- curred at Daily's work table. Thereupon Vecchio ordered Daily not to talk union to anyone in the shop or try to get anyone to sign a union card, or he would take "drastic; measures." In addition , at thi• time Daily was restricted to her work area. Her work was thus brought to her. Previously she was allowed to go to another depart- ment to pick up her work. Marguerite Edwards operates a sew-up machine at Respondent 's plant. She signed a union authorization card and also served on the Union's organizing committee. See General Counsel's Ex- hibit 7. About July 23, 1969, that committee sought to meet with President Vecchio, but he refused to talk to it until he conferred with his attorney. About July 29 the committee again attempted to see Vecchio but he gave the same answer. Then the members of the comittee asked for a raise in wages, but Vecchio replied he could do nothing about this "as long as the Union was there ... trying to get in." Some time later Edwards alone met with Vecchio. During this conversation Vecchio referred to a "mistake" he had committed , claiming that the Union probably would not have been bothering him if he had "paid insurance rather than give a third week of vacation." Employee Wanda Howard is one of those who signed a union authorization card. Some time thereafter Cora Buckingham told Wanda that Cora knew who had signed such cards on Cora's floor and that Wanda was one of them ; and that Pre- sident Vecchio had told Cora he could not un- derstand wh' Wanda was for the Union and thus "go against' Vecchio. Although I find that Cora made this statement, I find that it may not be at- LABOR RELATIONS BOARD tributed to Respondent because I have found that Cora is not a supervisor under the Act. Cora also told Wanda that Cora questioned em- ployee LaVerne Shoemaker about union meetings and that LaVerne had disclosed to Cora the names of the signers of cards on that floor . On other occa- sions Cora asked Wanda what went on at union meetings and who attended them . For the same reason I find that Respondent is not responsible for these utterances by Cora. On another occasion in July 1969, President Vecchio told Wanda Howard that he had learned Wanda became interested in the Union "because of the insurance" and that "if that's all [Wanda] was worried about" he would "give [her] the in- surance." Sometime in June 1969, President Vecchio told a group, including Wanda, that if the Union struck the plant he would nevertheless continue to operate it if 20 employees would "stick with him"; other- wise he would have to close the doors and return to where he "came from. He also told them that he would take care of them by increasing their wages and their insurance ; and that if he knew "this was going to happen" he "would have given the in- surance instead of the extra day of paid holidays." Vecchio repeated these remarks in substance on about two other occasions. Wanda also heard Vecchio speak to LaVerne Shoemaker the day before LaVerne was fired. Vecchio asked to see what LaVerne was writing on a pad . When Vecchio saw it he asked for whom "this information" was being collected . LaVerne answered he was compiling it for Union Represen- tative Gassman . After scolding LaVerne for this, Vecchio told the former he would be fired for doing anything like that again . LaVerne was writing down addresses "on all cartons and coats hanging up. Virginia Blaisure, an employee of Respondent, attended the first union meeting which was held at the Hayloft Restaurant. The next day President Vecchio asked her if she attended that meeting and she replied that she had . Then he inquired of her how many others went to it and she answered about 15. Continuing, Vecchio asked her what the Union offered which he did not and she told him "the in- surance." Sometime before this Vecchio had asked her how she felt about the Union. Somehow Vecchio knew that Virginia attended later meetings of the Union . He also after each meeting asked her what went on thereat . In one of these conversations he told her that if the Union came in he would have to close down if he "didn't get the workers." One day Vecchio told her that he knew she had signed a union card and that he could not understand it. However , he did add that such signing was Virginia 's "right." At one time Vecchio told Virginia that if the Union came in he would have to discharge "some of the slow girls that didn't make their rate ... C & M SPORTSWEAR MFG. CORP. because he wouldn't be able to keep them." He also said he would have to "lay off about two months out of the year." At another time in July 1969 Virginia asked Vecchio for a raise . However, Vecchio told her he could not grant this while the Union was trying to get in, and that she would get it if she would "stick with" him. She took this to mean that Vecchio could not give anybody a raise while a union organizing campaign continued. Supervisor Minnie Bowman once asked Virginia if the latter went to a union meeting. Bowman added that if Virginia "would just stick with" Vecchio, Virginia would benefit from it in the end. Another employee who testified for the General Counsel is Shirley Owen. A summary of her testimony follows. Sirley signed a union card and attended union meetings. About mid-June 1969, Vecchio asked Shirley and employee Mary Scou- ten, who worked together, whether they went to union meetings . Upon receiving an affirmative answer, he informed them that "maybe after the Union went away" he would pay their insurance, and that he could not then grant them a raise but would think about it "after the Union went away." Vecchio also mentioned that he should have given them "the insurance " instead of "the other week's vacation pay." Finally, in this conversation Vecchio said he wished the employees would not go to the union meetings. Mary Scouten, in substance, testified as follows. She is employed by Respondent as a top stitcher. She signed a card at a union meeting on April 22, 1969. The next day she informed Vecchio that she went to that meeting. Vecchio replied, "Go with an open mind." I find this does not violate the Act. At other times Vecchio told Scouten, responding to her request for a raise, that "if the Union didn't come in" he would give the employees "raises and better benefits," and that in such event he would see what he could do for her. Cheryl Shoemaker, a sewing machine operator, testified substantially as follows. She signed a union card. On one occasion, in June 1969, she overheard President Vecchio tell employee Betty Lou Harvey that if Harvey "stuck by" him until after the Union went away he would do better by Harvey. Another witness for the General Counsel is Mar- garet Teetsel, a conspectus of whose testimony en- sues : She works for Respondent as an automatic presser. In May 1969 she signed a union card. When she was hired, a date not revealed in the record, Vecchio asked her if she was union-minded. However, in late June 1969 he inquired of her whether she had signed a union card. In this same conversation Vecchio said he "had a better plan coming up for an insurance policy, but it would have to be later." On another occasion Vecchio de- nied Teetsel a raise in pay "because it would look like a bribe to the Union.' I find no violation of the Act in these last two expressions, as they do no more than demonstrate neutrality. 235 Another top stitcher employed by Respondent is Eleanor Shoemaker. An abridgment of her testimony discloses the following. She signed a card for the Union. After this, in May 1969, Vecchio asked her if she had signed a union authorization card, but added he had nothing against the Union and that it was her "privilege" to sign. A cutter of Respondent named William Burridge also testified for the General Counsel. A con- densed, but adequate, version of his testimony fol- lows. Burridge signed a union authorization card. A short time later President Vecchio asked him if he had signed such a card. When Burridge answered that he had, Vecchio commented that it "did not matter [because] we're going to have an election anyway. You can vote the way you want to." At another time, Vecchio promised Burridge a raise "after they [the Union] went away." I find this is an expression of neutrality which does not violate the Act. Vecchio so acted after Burridge's wife com- plained to the former that her husband was un- derpaid compared with other cutters. Burridge also overheard Vecchio tell employee Marie Owens to "stick with me, and after this is over, I will fix you up." Elsewhere I have found this statement to be an unlawful promise of benefit. Vecchio once asked Emma Burridge, an em- ployee of Respondent and the wife of William Bur- ridge, why William had signed a union authoriza- tion card. Explaining it was because other cutters were receiving more than William, Emma asked Vecchio why her husband was being compensated less than the other cutters. Vecchio replied that "I can't go into this and after the Union goes away, I will see that Bill is taken care of." I find this is an expression of neutrality and, therefore, lawful. Con- tinuing, Vecchio told her that he knew William had signed a card and asked Emma to coax her husband "to keep out [of the Union] and when the Union goes away, [I'll] see that he gets more money." On another occasion, about June 1969, Vecchio told Emma that "if the Union gets in" he thought that he "will [not] be able to keep up with everything, the insurance and everything that the Union would demand and [he] might be forced to lock the doors." One of the members of the Union 's committee is Gail Bender . See General Counsel's Exhibit 7. She also signed a union card. Shortly thereafter Vecchio asked her if she had signed such a card. Continuing, he told Gail that if she stuck with him he would take care of her, and that if the Union came in he would have to put a lock on the door. Not long after June 17, 1969, when Respondent was informed that Gail had been appointed to the Union's committee , Vecchio accused Gail of wast- ing time and that Gail "and the girls that are for the Union are the ones who are making it tough." I find nothing coercive in this statement, even though I find it discloses antiunion hostility. Joseph Kovalick is employed by Respondent to 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do maintenance and mechanic work. He signed a union card and was appointed to the Union's com- mittee. See General Counsel's Exhibit 7. About May 1969, after Kovalick had signed a union card, Vecchio told him not to talk union during working hours, that "there's not going to be Union," and that if Kovalick did not like the way Vecchio ran things Kovalick could pick up his paycheck. Although Kovalick admitted girls asked him about the Union during working hours, he testified that he merely replied to them that they should attend a union meeting to ascertain the answers. In my opinion, Vecchio did not transcend the permissible limits of free speech in this conversation, and I so find. Further, I find that prohibiting talking during working hours is lawful. Accordingly, I find no violation of the Act in Vecchio's said conduct. Dawn Posten, a machine operator for Respon- dent, in April 1969, was asked by President Vecchio if she had signed a union card. In the same conversation Vecchio added that after the union organizers "went away" he would grant some of the girls in the shop increases bringing their wages to $1.85 an hour, and that by Christmas he might pay for the insurance of the employees. On another oc- casion in April or May 1969, Vecchio told Dawn that "if the place went Union" he "could not afford to pay the benefits [and] would have to be forced to put locks on his doors." Still another time he asked her whether two other employees, whom he named, had signed union cards. Once he told her that if the Union got in he would have to let some girls o. The foregoing utterances are coercive, and I so find. Posten also testified that Supervisor Bowman "had Ethlyn Vandemark come by [our work sta- tions] to try to discourage us" from joining or showing interest in the Union. This was just before vacation in 1969. Since Vandemark is not an agent or supervisor of Respondent, I find that she may not bind it with such statement. C. The Layoffand Discharge of La Verne Shoemaker Shoemaker was hired by Respondent sometime in late 1967. On April 24, 1969 , he signed a union authorization card and on April 29, 1969, attended a union meeting at the Hayloft Restaurant in Law- ton, Pennsylvania. About April 30, 1969, employee Cora Buckingham asked him if he attended the meeting of April 29 , whether he had signed a union card, and whether any other employee on Cora's floor had signed such a card. As Cora has been found not to be a supervisor, I find that Respondent may not be held accountable for such interrogation. About 2 p.m. on April 30, 1969, following the foregoing questioning of Shoemaker , Cora told him that he was laid off for lack of work . At the time Shoemaker was operating the Paris puffer. How- ever, work was available on the bench . In the past, Shoemaker had been assigned to other jobs when work became slack on the Paris puffer. Although Shoemaker was laid off, Malcolm Burridge was retained. Malcolm had been hired but 3 weeks be- fore this. Also, Margaret Teetsel, over whom Shoemaker had seniority, was not laid off. Shoemaker was called back to work on May 23, 1969. At this time President Vecchio told him that he did not want any union talk in the plant. About May 28, 1969, Vecchio told Shoemaker not to take any time off without permission and that there should be only one person at a time in the restroom. Sortly thereafter Shoemaker noted this statement on a piece of paper on which he was keeping count of his production of coats. He gives his production figures to Cora Buckingham. How- ever, he also noted on this paper the destination of such coats which appeared on the cartons in which they were being shipped. Soon President Vecchio came to him and removed this paper from Shoemaker's hand. See General Counsel's Exhibit 14. Amog other things this exhibit recites that "Angel [Vecchio] came and told me not to take any time off without permis- sion. Think he said only one person in the restroom at a time." Shoemaker jotted down this information for Union Representative Murray Gassman. When Shoemaker reported for work the next day, May 29, 1969, his timecard was missing from the rack. When Shoemaker saw Vecchio .about it, Vecchio replied he had "thought it over" and "had to terminate Shoemaker." But no reason for this dismissal was given. D. The Status of Cora Buckingham General Counsel's evidence indicates that Mrs. Buckingham tells employees what to do, gives them permission to take the afternoon or less time off, calls laid-off employees to return to work, teaches new employees, lays off employees for lack of work after checking with Supervisor Bowman, and has a key to the plant. In addition, Mrs. Buckingham is listed as "head of the shipping room" on the payroll, and receives "the bonus that other super- visory employees get." However, some nonsuper- visory employees, such as "the maintenance and the mechanic," also received the same bonuses as Mrs. Buckingham. Finally, Vecchio referred to her as a "supervisor in an unemployment compensa- tion hearing. According to Respondent's evidence, Mrs. Buckingham is "primarily a shipping clerk." She works under Minnie Bowman, the general forelady, taking orders from the latter. Bowman supervises all operations, including shipping, but excluding cutting. Bowman also tells Buckingham whom to lay off when work is slack. Cora has performed all jobs except that of cutting. She spends about 98 percent of her time in manual labor. She has no authority to hire, fire, lay off, or promote. At most she shows other employees how to perform their C & M SPORTSWEAR MFG. CORP. functions. When anyone in Cora's department takes off Cora reports this to Bowman or Vecchio. She may grant time off only after consulting with Bow- man. IV. RESPONDENT 'S EVIDENCE REGARDING THE UNFAIR LABOR PRACTICES Respondent's president is Angelo Vecchio. A summary of his testimony follows . When Roselyn Daily was laid off there was not any work to which she could be assigned . But she was recalled when business improved . Although Daily insisted she was laid off because she signed a union card , Vecchio retorted that that had nothing to do with it but that lack of work accounted for his decision to lay her off. On May 28, 1969, Vecchio saw LaVerne Shoemaker writing on a piece of paper . Shoemaker was checking sizes at the time although his job was to put belts on garments . Soon Vecchio had LaVerne turn over to him said piece of paper. LaVerne said "this [writing] is a hobby of mine .. . I make notes." The next day Vecchio fired Shoemaker. Vecchio previously had trouble with LaVerne. Shortly before April 28 , 1969 , LaVerne broke a soap dispenser in the men's restroom . At another time in April 1969 , LaVerne shouted at Cora Buckingham as she taught him "certain phases of teaching." LaVerne also made holes on'the table with an ice pick. Several times LaVerne took off without permission . At another time LaVerne claimed he injured his back to avoid moving some heavy goods in the garage. However, these derelic- tions occurred before LaVerne was laid off and then recalled. Vecchio testified that LaVerne was fired for tak- ing notes, some of which related to business secrets, on company time , and that his other derelictions "didn't help the situation any, either." Vecchio ad- mitted that some of the notes related to statements made by him to LaVerne, but he contended that LaVerne was insubordinate in taking even these notes. Vecchio denies the statements attributed to him, supra, by Wanda Howard , Edna Sarnosky, Mar- garet Teetsel, William and Emma Burridge, and Shirley Owen , who testified for the General Coun- sel. (Employee Mildred Luce gave testimony con-' firming Vecchio 's denial of statements attributed to him by William and Emma Burridge .) However, in February 1969, prior to the advent of the Union, and pursuant to past practice, he told some em- ployees that if Respondent had good orders he would take care of them . But he did not make any promise of benefits to any employee after the Union commenced to organize the plant. But when the Union entered the picture he refused to discuss benefits requested by employees because, "under the law," he knew he was "not allowed ... to im- 237 prove their conditions while there was an organiz- ing campaign going on." However, in refusing to talk to employees about raises or other benefits he merely told them he could not talk about them because to do so "is illegal." Vecchio did tell employees not to discuss the Union during working hours because production had suffered thereby . But he never expressed op- position to the Union to any employee . Nor did he threaten to discharge or lay off, or actually discharge or lay off, any employee because of union activities . And he never threatended to close the plant if the Union got in. However , he did mention to employees that "union factories" worked less than 11 months a year whereas Respondent operated an average of 11 months each year. Finally, Vecchio denied committing any of the unfair labor practices enumerated in the General Counsel's complaint. Maynard Bowman , the husband of Supervisor Minnie Bowman , accompanied her about 6 p.m. on May 6, 1966, to the Pink Apple Restaurant, where they purchased their suppers to take out . However, Maynard remained in his parked car while Minnie entered the restaurant to put in the order and wait for it while it was prepared . She returned to the car in 20 or 30 minutes with their supper. Although he was not aware of a union meeting before arriving there, his wife told him when she reentered the car that "there was a Union meeting there and she saw some of the people there ." Thereupon they left im- mediately. Minnie Bowman, one of Respondent's super- visors, confirmed her husband 's foregoing version. Additonally, she testified that she did not go to the service window, where takeout orders are usually processed, because it was closed. Therefore, con- sonent with a sign on that window, she went in- doors to place her order. Thus she entered by the door leading into the dining room and sat down at a counter in said room. She remained seated there until receiving her order. While waiting for her order , Mrs. Bowman ob- served employees of Respondent in the immediate area. One of them, Roselyn Daily, introduced Union Representative and Mrs. Gassman to Mrs. Bowman, but the latter refused to shake hands with them "because I knew that I was supposed to remain neutral." According to Mrs. Bowman, Roselyn Daily's regular work involves tying linings . But Daily often does other work "when there's an abundance of it." In late April 1969 Bowman laid off Daily because "there was no more trimming" for her, a job to which Daily had been assigned that day. However, there was enough trimming work "to keep the regu- lar trimmers going." Further, Bowman testified that at no time did she question Daily concerning the latter's union activi- ties. However, Daily once voluntarily declared to Bowman that Daily the night before had attended a 238 DECISIONS OF NATIONAL LABOk RELATIONS BOARD union meeting . This caused Bowman to remark, "Are you going to get a wage increase , because they said they would give a wage increase ." Also, Bowman denies that she ever questioned Virginia Blaisure regarding the latter 's union activities. Finally, Bowman averred that LaVerne Shoemaker was laid off about April 30, 1969, for lack of work. However, he was discharged on May 29, 1969. Bowman is familiar with the fact that Shoemaker broke a soap dispenser in the men's room and that holes in a table were caused by Shoemaker. However, Bowman not only witnessed neither incident, but actually accused and repri- manded Malcolm Burridge of making such holes. Later she learned that Shoemaker created these holes . Thereupon Bowman apologized to Burridge but said nothing to Shoemaker. Jennie Owen, another employee , testified that President Vecchio never spoke to her as testified by General Counsel's witness William Burridge. In substance Owen stated that Vecchio at no time in- vited her to stick with him and not become a member of the Union and that he would take care of her after the Union left. Nor did Owen hear Vecchio tell any employees not to join the Union, question any employee concerning the latter's sig- ning of a union authorization card, or promise any employee benefits "when the Union leaves or if they do not go into the Union." However, Vecchio did encourage Owen to attend union meetings and to make up her own mind whether to join it. Sewing machine operator Ethlyn Vandemark also testified on behalf of Respondent . A summary of her testimony follows. Ethlyn told Dawn Posten, a witness for the General Counsel, that the Union "did not seem to be working out as good as they thought." But Ethlyn denies that Supervisor Bow- man asked her to convey such a message to Posten. Actually Ethlyn did discuss the "pros and cons" of unionism with another employee, but neither Bow- man nor Vecchio instigated such conversations. Further, Ethlyn testified that neither Bowman nor Vecchio ever inquired of her about union activities or meetings or what attitude she had toward the Union, nor did she hear either of them ask similar questions of other employees. Respondent also introduced evidence through other employees that neither Supervisor Bowman nor President Vecchio told them or other em- ployees to eschew the Union, or promised them or other employees benefits if the Union did not come into the shop , or threatened them or other em- ployees with reprisals if the Union came in, or in- terrogated them or other employees about their union sentiments or activity. Employees who so testified are Isabelle Dixon , Lela Weida, Jeannette Harvey, and Betty Lou Harvey. Other witnesses for Respondent testified that Vecchio forbade talking about the Union during working hours because he complained it interfered with production ; that he permitted them to talk union during nonworking hours; that he told them it did not matter to him whether they were for or against the Union ; and that he want 'd them to go to union meetings " and use our own judgement" or "go with an open mind." V. CONCLUDING FINDINGS AND DISCUSSION A. The Refusal To Bargain As found above, there were 77 employees in the appropriate unit at the time the Respondent received the Union 's demand about June 2, 1969, for recognition in an appropriate unit. Further, I have found that at that time Respondent had valid authorization cards from 42 employees in the unit. See General Counsel's Exhibits 3a-3pp. Patently this is a majority , and I so find. Respondent's con- tention that Amalgamated later lost its majority (see General Counsel's Exhibits 9, 10, and 11) is not well taken , for two reasons: 1. After a majority has been established, and a demand for recognition is based thereon, the em- ployer is under a statutory obligation to bargain with the collective-bargaining representative for a reasonable period following such demand, even though such ma jority may be lost during such reasonable period. I find ti" . Respondent did not recognize or bargain with the majority Union after the latter 's demand for recognition , and that, until Respondent does so bargain , said reasonable period does not commence to run. N.L.R.B. v. Gissell Packing Co., 395 U.S. 575. 2. In anylevent, I find that Respondent 's unfair labor practices, as found herein , proximately caused the Union 's majority to be dissipated. Hence I find that Respondent may not profit by this loss as it resulted from Respondent's own misconduct. Medo Photo Corp. v. N.L.R.B., 321 U.S. 678, 687. Since the Union enjoyed a majority when it requested recognition , the remaining question is whether the employer was nevertheless warranted in insisting upon an election or whether it should have granted recognition on the basis of the Union's majority status resulting from the authorization cards which the latter had obtained. It is my opinion, and I find, that a bargaining order is an appropriate remedy to redress such un- fair labor practices , because they are so coercive that, even in the absence of an 8(a)(5) violation, a bargaining order is necessary to repair the unlawful effect of those unfair labor practices . N.L.R.B. v. Gissel Packing, supra; Brown Specialty Company, 180 NLRB 969. But I further find that, even if Respondent's practices are deemed less pervasive, the possibility of erasing the effects of past prac- tices and of insuring a fair election by the use of traditional remedies is slight and that employee sen- timent once expressed through cards, on balance, will be better protected by a bargaining order. N.L.R.B. v. Gissel Packing Co., supra; Gissel C & M SPORTSWEAR MFG. CORP. 239 Packing Company, Inc., 180 NLRB 54; Louisberg Sportswear Co., 180 NLRB 739. In my opinion, Jasper Pool Car Service, 175 NLRB 1025, is distin- guishable. B. Interference, Restraint, and Coercion 1. By Supervisor Minnie Bowman Although I find that Supervisor Minnie Bowman was physically present in the Pink Apple Restaurant at a time when the Union was holding a meeting there, I find that her conduct did not amount to surveillance. This is because I credit her and her husband that they both came to said restaurant to obtain takeout orders, that he parked outside while she went in to place the orders, that she had to wait inside while the orders were prepared, and that neither of them knew of or intended to oversee the meeting. Accordingly, I find no violation of Section 8(a)(1) was committed by Mrs. Bowman in visiting said restaurant at that particular time. About April 23, 1969, Forelady Minnie Bowman, admittedly a supervisor, asked employee Roselyn Daily, after Daily had attended a union meeting the night before, how said meeting was and what the hourly wage would be if the Union got in. Bow- man's denial that she so inquired is not credited. I find this interrogation is coercive within the mean- ing of Section 8(a)(1) of the Act, because no law- ful necessity therefor is disclosed in the record. Mrs. Bowman also asked employee Virginia Blai- sure if Virginia attended a union meeting, and in addition told Virginia that, by sticking to President Vecchio, Virginia would benefit from it in the end. Bowman's contrary evidence is not credited. The foregoing question is not shown to be for a lawful purpose and, therefore, is coercive. And I find that the allusion to sticking to Vecchio reasonably con- notes refraining from union activity. Since Bowman offered a promise of benefit to Virginia to adjure the Union, I find this utterance violates Section 8(a)(1) of the Act. 2. By President Angelo Vecchio About April 23, 1969, Vecchio joined employee Roselyn Daily and Forelady Minnie Bowman while the latter two were conversing. Vecchio asked Daily how the chicken tasted at the union meeting which Daily attended the night before. I find that said comment by Vecchio is innocuous and, there- fore, does not contravene Section 8(a)(1) of the Act. A few days later, about April 29, Vecchio urged Daily to ask questions about union benefits at a union meeting scheduled for later that day. This is not coercive, and I so find. However, at another time on the same day Vecchio asked Daily if she had told persons in the local beauty parlor that the Union signed up a majority of the employees and would thereby come into the shop. Vecchio's testimony contradicting this is not credited. I find that this last interrogation is coercive and, there- fore, contravenes Section 8(a)(1) of the Act. About May 6, 1969, Vecchio reprimanded Rose- lyn Daily for an alleged error in her work and com- mented that if she had kept her mind on her work instead of the Union such a blunder would not have occurred. He also commented that such people go to union meetings. Vecchio's contrary testimony is not credited. Nevertheless, I find that these state- ments by Vecchio are not coercive, but, at most, demonstrate hostility to unions. On or about June 9, 1969, Vecchio asked Daily if she had solicited employees to sign union cards, and also warned her not to talk union or solicit union membership in the shop, for if she did she risked "drastic measures." His denial thereof is not credited. I find these words are comprehensive enough to proscribe such action during nonworking hours. But the Act protects such conduct during nonworking hours. Diamond Shamrock Co., 181 NLRB 261. Hence I find that his said utterances are coercive and are proscribed by Section 8(a)(1) of the Act. Cf. P. R. Mallory & Co. v. N.L.R.B., 422 F.2d 757 (C.A. 7). Around this time he also con- fined Daily to her work station, whereas she for- merly was permitted to leave this area to pick up her work. But I find that so limiting the movements of Daily was proper because it is part of manage- ment's function to schedule work in any manner it see fit. And I further find that picking up work in another area is not part of Daily's regular job. Further, I find that this change in practice (1) did not render Daily's job more onerous, and (2) was not motivated by a desire to retaliate against Daily for her union sympathies. N.L.R.B. v. United States Railway Equipment Co., 424 F.2d 86 (C.A. 7) (em- ployee Berry). Hence I find that so circumscribing Daily does not violate Section 8(a)(1) of the Act. About July 29, 1969, Vecchio was asked by a committee of employees to grant a raise in wages. However, he replied that he could do nothing as long as the Union "was there ... trying to get in. It is not unlawful for an employer to deny wage in- creases during an organizational drive, for other- wise he may be accused of attempting to influence employees to decide against being represented by a collective-bargaining representative. That principle of law applies to the foregoing situation, for I find that Vecchio was avoiding even the semblance of gianting a raise which could be construed as an at- tempt to wean union adherents from their union. Thus it is proper to postpone benefits where such action is taken to avoid the appearance of attempt- ing to influence the employees' decision concerning their representation for purposes of collective bar- gaining. N.L.R.B. v. Dorn's Transportation Com- pany, Inc., 405 F.2d 706, 715 (C.A. 2); Uarco, Inc., 169 NLRB 1153. Accordingly, I find that this deni- al of a raise does not violate the Act. Paradise Bowl- 0-Mat, Inc., 180 NLRB 699; Equitable Equipment Co., Inc., 178 NLRB 302. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At another time in July 1969, Vecchio , in a con- versation with employee Marguerite Edwards, referred to a blunder he had made in that he probably would have succeeded in keeping out the Union in giving employees free insurance rather than a longer paid vacation . It is my opinion, and I find, that this statement does not contain a promise of benefit, and that it is not otherwise coercive. Hence I find that it does not contravene the Act. But Vecchio, in July 1969, did offer a promise of benefit to employee Wanda Howard when he told her that he had learned she displayed an interest in the Union "because of the insurance " and that he would give her such insurance if only that worried Wanda . Because such promise of benefit tends to alienate an employee 's prounion sentiments it must be considered coercive under Section 8(a)(1) of the Act, and I so find. At another time, in June 1969, Vecchio told a group of employees , among whom was Wanda Howard, that if the Union struck he would operate if at least 20 employees continued to work, but otherwise he would have to close the doors and return to where he came from . This statement, I find, is coercive, in that it implies that Vecchio would remove the plant to another location if a strike were successful . Thus I find it is a threat of retaliation . On this occasion Vecchio also promised to increase their wages and insurance and stated that, if he had known the Union would enter the picture he would have given them insurance rather than an additional paid holiday . This statement by Vecchio is also coercive as a promise of benefit, and I so find. Wanda Edwards overheard Vecchio threaten to fire employee LaVerne Shoemaker for writing in- formation on a pad , some of which I have found was protected. See General Counsel 's Exhibit 14. This information was to be transmitted to Gassman, an official of the Union . Hence I find that this threat is coercive. The day after the Union held its first meeting President Vecchio asked employee Virginia Blaisure if she had gone to it and, upon receiving an affirmative reply, asked her how many others at- tended and what the Union offered which he did not. At another time he asked her how she felt about the Union. On other occasions he asked her to re- peat what transpired at each union meeting she at- tended. One day he told her that he knew she had signed a union card. Vecchio's contrary evidence is not credited. I find the foregoing utterances to be coercive within the meaning of Section 8(a)(1) of the Act. At another time Vecchio told Blaisure that if the Union came in he would not be able to keep some of the slow workers and that he would have to lay off employees for about 2 months in a year during the slack season. I find this is a threat of reprisals condemned by Section 8(a)(1) of the Act. He also told her he would have to close down if he "didn't get the workers." I find this implies that a strike would shut down the plant ; but I further find that this is not coercive as it correctly predicts the usual consequences of a strike . Vecchio also denied Blai- sure a raise in pay because he insisted he could not do this during the Union 's organizing drive. I find this is not coercive because (sl) is not intended to undermine the Union , and (2) it displays that neutrality which the Act imposes upon employers when a union seeks to represent employees. Vecchio also asked employee Shirley Owen about mid-June 1969 whether she went to union meetings. Patently this is coercive, and I so find. He also told her that, after the Union went away, he might provide employees with free insurance and perhaps grant them a raise . I find this constitutes a promise of benefits and, therefore , amounts to for- bidden coercion . In this same conversation Vecchio further mentioned that he should have given the employees free insurance rather than an additional week of paid vacations. Although this may be an in- nocuous statement when isolated , his entire re- marks cannot be so fragmentized. Rather the con- versation must be viewed in its entirety . Astro Con- tainer Company, 180 NLRB 815 . So considered, I find this last statement coercive because it was rendered as part of a conversation heretofore found to violate Section 8(a)(1) of the Act. Vecchio told employee Mary Scouten that if the Union did not come in he would grant employees raises in pay and improved benefits . His denial thereof is not credited . I find this amounts to a promise of benefits proscribed by Section 8(a)(1) of the Act. Vecchio also asked employees Margaret Teetsel, Eleanor Shoemaker, William Burridge, Gail Bender, and Dawn Posten whether they signed union cards. Manifestly this interrogation is coer- cive within the contemplation of Section 8(a)(1) of the Act, and I so find . In addition, Vecchio also told Emma Burridge , the wife of William and also an employee, that he knew William had signed a card and requested her to ask William to keep out of the Union , promising that William would receive more money when the Union went away. I find this last statement is embraced by Section 8(a)(1) of the Act and, therefore, is unlawful. Vecchio assured employee Gail Bender he would take care of her if she stuck with him. Hs testimony inconsistent with this is not credited. I find this is an unlawful promise of benefit intended to alienate Gail from the Union . Also Gail was told by him that he would have to put a lock on the door if the Union came in. Vecchio 's testimony not consonant with this finding is not credited. I find this is coer- cive as it constitutes an unlawful threat of reprisal. In finding that Vecchio made statements and asked questions amounting to unfair labor prac- tices, I have not overlooked his assurances to some employees that he would not discriminate against them for attending union meetings , and his in- C & M SPORTSWEAR MFG. CORP. 241 sistence to them to go to the meetings with an open mind . Nor have I disregarded Respondent's evidence that Vecchio told many employees that he was not opposed to unions, that he did not unlaw- fully interrogate them regarding their union activi- ties or sympathies, and that he neither offered them benefits nor threatened them with reprisals. Although I have considered the foregoing evidence, which is favorable to Respondent's defense, I nevertheless find that Vecchio did engage in the unfair labor practices attributed to him and set forth above. This is because lawful conduct toward some persons does not per se disprove unlawful conduct toward others when the conduct toward such others is the very issue to be resolved. The Copps Corporation, 181 NLRB 294, fn. 1. In this connection it is desirable to point out that, in a somewhat related field of law, i.e., negligence in some tort cases, even extensive evidence of due care by the defendant in the past does not neces- sarily negative negligence by such defendant on the facts developed in the particular litigation tried in court. C. The Layoffand Discharge of La Verne Shoemaker It is my opinion , and I find, that Shoemaker was discriminatorily selected to be laid off on April 30, 1969, because of his union activity, notwithstanding that I find that work was slack at the time . This ulti- mate finding is based on the entire record in this case, and the following subsidiary facts, which I also find: 1. Shoemaker was abruptly released from the Paris puffer in the middle of a work day, rather than being permitted to finish the day. This abrupt- ness gains added significance in view of the finding, which I make, that work was available on the bench which he was competent to perform. 2. Since work was available on the bench, it is difficult to perceive why Respondent assigned the same to Malcolm Burridge and Margaret Teetsel, both of whom lacked seniority over Shoemaker. In- deed, Burridge , who had been recently hired, had been employed but 3 weeks at the time. Preferring a junior employee, and withholding work from one having seniority , when a layoff becomes necessary, strongly suggests a discriminatory motive. New Truck Transport, Inc., 178 NLRB 545. In my opinion, Awrey Bakeries, Inc., 180 NLRB 905, is distinguishable. 3. Respondent was aware of Shoemaker's union activity, since Cora Buckingham knew of it. Although I have found that Buckingham is not a su- pervisor, I find that she was hostile to the Union and was closely allied to management. Hence I find that it is reasonable to infer that she reported to Respondent her knowledge of Shoemaker's union activities. 4. Shoemaker was laid off almost immediately after Buckingham had interrogated him concerning his and other employees' union activity. And I further find that , after being recalled to work, Shoemaker was discharged for union activity on May 29, 1969, and that the reason assigned at the trial is a pretext to disguise the true reason. This ultimate finding or conclusion is derived from the entire record and the findings recited below, which I hereby find as facts: 1.--Respondent had cognizance of Shoemaker's union activity , not only because of Buckingham's knowledge thereof narrated above, but also because Vecchio knew that Shoemaker had written an account of some of such activity on General Counsel's Exhibit 14. Additionally Vecchio knew that Shoemaker took down this information for Union Representative Gassman. 2. Not only was Shoemaker abruptly discharged in the middle of the workweek , but he was not even told about it. Thus he ascertained this event oc- curred only by inquiring why his timecard had dis- appeared from the rack. 3. No reason was given as to why Shoemaker was discharged. All that President Vecchio said was that he "had to terminate " Shoemaker. I find this does not explain the cause of his dismissal . Failure to announce a reason for a discharge warrants the inference-and I draw it-that it was promipted by discriminatory motives. Virginia Metalcrafters, In- corporated, 158 NLRB 958, 962; N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 278 (C.A. 5); N.L.R.B. v. Plant City Steel Corp., 331 F.2d 511, 515 (C.A. 5). 4. Respondent entertained antiunion hostility. While this in itself is not an unfair labor practice, it may be considered in evaluating the true motive underlying the discharge. Maphis Chapman Corp. v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4); N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5). In ad- dition, Respondent committed other unfair labor practices. Similarly, this conduct throws light on the purpose inducing Shoemaker's discharge. 5. Not only was Shoemaker abruptly discharged, but his dismissal coincided with the Union's or- ganizing campaign . Arkansas-Louisiana Gas Com- pany, 142 NLRB 1083 , 1085-86. "The abruptness of a discharge and its timing are persuasive evidence as to motivation." N.L.R.B. v. Mont- gomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829. 6. Finally, although I find that lawful cause ex- isted justifying Shoemaker's discharge, such cause was used as a pretext to cloak the true reason. Such lawful cause consists of Shoemaker 's copying the names of the addresses to whom Respondent was shipping its goods. See General Counsel's Exhibit 14. Patently the names and addresses of Respon- dent's customers may not be disclosed to union agents by an employee . But I find that Respondent would not have fired Shoemaker for this miscon- duct alone, especially since Vecchio took no im- mediate action to discharge him when he discovered Shoemaker's transgression . Cf. N.L.R.B. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD v. L. E. Farrell Company, 360 F.2d 205, 208 (C.A. 2). In any event I find that, even if such intended dis- closure contributed to Shoemaker's discharge, it was not the motivating or substantial reason therefor . Rather, I find that the motivating, or a substantial , ground for his discharge was his union activity . This is sufficient to render his discharge unlawful . N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1); N.L.R.B. v. Lexington Chair Co., 361 F.2d 283, 285 (C.A. 4). I am not unmindful that Shoemaker in the past was derelict in performing his tasks, and that he could lawfully have been discharged therefor. But I further find that such misconduct was condoned by Respondent, since it did not at any time take disciplinary action against him with respect thereto. It is pertinent to observe at this point that "Direct evidence of a purpose to discriminate is rarely obtained , especially as employers acquire some sophistication about the rights of their em- ployees under the Act; but such purpose may be established by circumstantial evidence ." Corrie Cor- poration v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). Therefore it is not unusual for an employer to point to an employee's actual or doubtful shortcomings, which otherwise generally would be overlooked, as the true reason influencing a discriminatory discharge. D. The Layoffs ofRoselyn Daily In my opinion Daily was laid off twice because of her union activity , and I so find. Her first layoff oc- curred about 11:15 a.m. on April 29 , 1969, and' about 15 minutes after Vecchio reprimand her for allegedly making prounion statements at a local beauty parlor . The precipitous nature of the layoff, especially when viewed in connection with the foregoing irritation of Vecchio at Daily's prounion pronouncements, confirm the conclusion that lack of work was not the real cause for Daily's tempora- ry dismissal . Insofar as Vecchio 's testimony is in- consistent herewith, I do not credit it. It is true, and I find, that Vecchio denied Daily 's accusation that she was being released because of her union activi- ty. But this denial is not conclusive. Indeed, I find that this denial has been overcome by other testimony, which I credit, that Vecchio expressed hostility to the Union and also committed unfair labor practices. Further, I find that other work was available, so that selecting Daily, rather than an employee whom she outranked in seniority, to be laid off, renders the selection discriminatory . For it may reasonably be expected when production is decreasing that older, more experienced , hands will be preferred to employees enjoying less seniority . In addition, Daily had introduced Union Representative Gassman to Supervisor Bowman in a manner which Bowman so resented that Bowman refused to shake hands with Gassman . It is reasonable to infer-and I do so- that this incident in part entered into the decision to lay off Daily on April 29, 1969. Daily was recalled to work on May 6, 1969. But about May 12 she was again laid off for about a week, allegedly for lack of work. As in the case of her prior layoff I find that this time she likewise was picked out to be sent home because of her union activity. The reasons mentioned above relating to the finding that her first layoff was discriminatory are equally applicable here. In this connection I find that although work was slack, some was availa- ble; but I further find that Respondent chose to retain Malcolm Burridge, a new employee who had been hired but 3 or 4 weeks before this, to perform the remaining work, thus preferring an inex- F erienced employee with far less seniority than Dai- 7y. This, too, indicates that Respondent departed from normal procedures in order to visit reprisals upon a union advocate. See New Truck Transport, Inc., 178 NLRB 545. E. The Status of Cora Buckingham While the resolution of this branch of the issues is not entirely free from difficulty, I find that Mrs. Buckingham is not a supervisor or agent of Respon- dent as those terms are used in Section 2(11) and (13) of the Act. It follows, and I find, that she is an employee within the meaning of Section 2(3) of the Act, and belongs in the appropriate unit. This is because I find that Buckingham exercises none of the functions described in Section 2(11) of the Act as indicia of supervisory capacity or authority. While not decisive, three recent cases tend to sub- stantiate this result. See Display Sign Service, Inc., 180 NLRB 49, 50; Murphy Bonded Warehouse, Inc., 180 NLRB 463; G. C. Murphy Company, 171 NLRB 370, affirmed 422 F.2d 685 (C.A.D.C.). In this respect, it is my opinion-and I find-that Buckingham works under the supervision of Mrs. Bowman, a supervisor, performs manual labor dur- ing nearly all her working time, and only occa- sionally (1) gives instructions of a routine nature, (2) relays Supervisor Bowman's instructions to the few employees in the shipping department, (3) al- lows requests of employees to take time off but only after clearing such requests with Bowman, and (4) lays off employees after checking with Mrs. Bowman. Patently these minor supervisory tasks, sporadically exercised, do not vest Buckingham with that distinctive authority contemplated by the Act as characteristic of a supervisor, and I so find. It is true, and I find, that Buckingham was listed as "head of the shipping room" on Respondent's payroll, was characterized as a "supervisor" by Pre- sident Vecchio in an unemployment compensation hearing, and received a bonus which was granted to others who are supervisors. But this does not require a different result. For, as the court stressed in G. C. Murphy Company, supra: As far as the [employer's] instruction sheet [characterizing certain employees as exercising C & M SPORTSWEAR MFG. CORP. "supervision "] is concerned , it is well established that "theoretical or paper power will not suffice " to make an individual a super- visor .... The test is what power the worker actually exercises .... Almost any employee "directs" other employees in some fashion at some time. In my opinion , Huberta Coal Co., Inc., 168 NLRB 122, on which the General Counsel relies,-does not compel a contrary outcome . For in that case, unlike here, the persons found to be supervisors " were en- gaged in precisely the same course of conduct as Respondent's admitted supervisors and representa- tives." But an employee like Buckingham , who per- forms manual labor 98 percent of her working time, can hardly be described as executing or discharging "precisely the same" services or the office of an un- denied supervisor . Hence Huberta Coal Co., Inc., does not dictate or even suggest a finding that Buckingham is a supervisor or agent of Respon- dent . Likewise , Equitable Equipment Co., Inc., 178 NLRB 302, is distinguishable. Notwithstanding the foregoing findings, I find that Buckingham , although an employee, had an antipathy to the Union and displayed this feeling in some talks with employees. Her evidence incon- sistent herewith is not credited . And I further find that Buckingham 's interests were closely allied with management. Consequently , I find that because of said sentiments Buckingham conveyed to Respon- dent her knowledge that LaVerne Shoemaker had engaged in union activity. This is material solely on the question of whether Respondent was aware of Shoemaker's union activity at the time of his layoff on April 30, 1969 . It does not render Respondent responsible for her behavior . J. A. Compley Com- pany, 181 NLRB 123, is distinguishable for there, unlike here, the employee was authorized by the employer to undertake an antiunion campaign. F. The Strike of August 8, 1969 About August 8, 1969, the Union called a strike of Respondent's employees, and many of them responded by ceasing to work . See General Coun- sel's Exhibit 10. I find that said strike was resorted to in order to protest Respondent 's (1) refusal to recognize and bargain with the Union and (2) com- mission of the other unfair labor practices as al- leged in the complaint . However, I have found that Respondent did not commit some of the unfair labor practices ascribed to it in the complaint. Accordingly , I find that said strike is an unfair labor practice strike only to the extent that it remonstrates against the unfair labor practices found herein , viz, the refusal to recognize and bar- gain collectively with the Union and specific con- duct found to violate Section 8(a)(1) of the Act, as delineated in section V, above . In all other respects I find that such cessation of work is not an unfair labor practice strike. 243 VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the opera- tions described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices prohibited by Section 8(a)(1), (3), and (5) of the Act, I shall recommend that the National Labor Relations Board order it to cease and desist therefrom and to take specific af- firmative action, as set forth below, designed to ef- fectuate the policies of the Act. Since the view of the finding that Respondent discriminated against Shoemaker and Daily it will be recommended that it be required (1) to offer Shoemaker immediate and full reinstatement to his former position or one substantially equivalent thereto, without prejudice to his seniority and other rights and privileges, and (2) to make whole Shoemaker and Daily for any loss of earnings suffered by reason of the dis- crimination against them. In making Shoemaker and Daily whole Respon- dent shall pay to each a sum of money equal to that which each would have earned as wages from the date of his or her layoff, or discharge, or both, to the date of reinstatement or a proper offer of rein- statement, as the case may be, less his or her net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner established by F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated by the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and, upon reasonable request, make available to the Board or its agents, for examination and copying , all per- tinent records and data necessary to aid in analyz- ing and determining whatever backpay may be due. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer as defined in Sec- tion 2 (2), and is engaged in commerce within the meaning of Section 2(6) and (7), of the Act. 3. By discriminating in regard to the tenure of employment of LaVerne Shoemaker and Roselyn Daily, thereby discouraging membership in the Union, a labor organization, Respondent has en- 427-258 O-LT - 74 - 17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaged in unfair labor practices condemned by Sec- tion 8(a)(3) and (1) of the Act. 4. All production and maintenance employees of Respondent, employed at its Meshoppen, Pennsyl- vania, plant, exclusive of office clericals and super- visors as defined in Section 2(11) of the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 5. On or about June 2, 1969, and at all material times thereafter, the Union represented a majority, and has been the exclusive bargaining representa- tive, of all the employees in the aforesaid ap- propriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act; and Respondent was on that date, and has been since, legally obligated to recognize and bargain with the Union as such. 6. By refusing to recognize and bargain collec- tively with the Union in regard to the employees in said appropriate unit on and since about June 2, 1969, Respondent has engaged in unfair labor prac- tices prohibited by Section 8(a)(5) and (1) of the Act. 7. By engaging in the conduct set forth in section V, B, supra, Respondent has engaged in additional conduct interdicted by Section 8(a)(1) of the Act. 8. The above-described unfair labor practices af- fect commerce within the contemplation of Section 2(6) and (7) of the Act. 9. Respondent has not committed any other un- fair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Board enter an Order that Respondent, C & M Sportswear Manufacturing Corporation, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Amalga- mated , or any other labor organization, by laying off or discharging employees or otherwise dis- criminating in any manner in respect to their tenure of employment or any term or condition of employ- ment. (b) Refusing to recognize or bargain with the Amalgamated as the exclusive bargaining represen- tative of all the employees in the above-described appropriate unit. (c) Coercively interrogating employees concern- ing their and other employees' union membership, activities, and desires. ' In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event (d) Threatening to close its plant or take other reprisals if the employees chose a collective-bar- gaining representative. (e) Promising employees increases in wages and other benefits if they refused to be represented by a collective-bargaining agent or if they refused to join the Amalgamated. (f) Warning employees not to talk about the Union or to solicit union membership in the shop during nonworking hours. (g) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of rights guaranteed to them by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designated to effectuate the policies of the Act: (a) Upon request, recognize and bargain with the Amalgamated as the exclusive representative of all employees in the aforesaid appropriate unit and, if an understanding is reached, embody such un- derstanding in a written, signed agreement. (b) Offer LaVerne Shoemaker immediate and full reinstatement to his former position or one sub- stantially equivalent thereto, without prejudice to his seniority and other rights and privileges enjoyed by him, and make him whole for any loss of pay he may have suffered by reason of his layoff and his subsequent discharge, with interest on any such sums at the rate of 6 percent per annum. (c) Notify said LaVerne Shoemaker, if presently serving in the Armed Forces of the United States, of his right to reinstatement upon application in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Make whole Roselyn Daily for any loss of pay she may have suffered by reason of her layoffs, with interest on any such sums at the rate of 6 per- cent per annum. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (f) Post at its plant at Meshoppen, Pennsylvania, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 4, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " C & M SPORTSWEAR MFG. CORP. 245 thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 4, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges unfair labor prac- tices not found herein. Y In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in wnting, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Governmennt We hereby notify our employees that: WE WILL NOT discourage membership in Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, by laying off or discharging employees or other- wise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. WE WILL NOT refuse to recognize or bargain with said Amalgamated as the exclusive representative of the employees in the bargain- ing unit described below. WE WILL NOT coercively ask employees questions about their and other employees' union membership, activities, and desires. WE WILL NOT threaten to close our plant or to take other reprisals if our employees chose a union to represent them. WE WILL NOT promise employees increases in wages and other benefits if they refuse to join the Amalgamated or if they refuse to have a union in the plant. WE WILL NOT warn employees not to talk about the union or to solicit union membership in the shop during nonworking hours. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of rights guaranteed to them by Sec- tion 7 of the National Labor Relations Act, ex- cept to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization under a valid union- shop clause as authorized by Section 8(a)(3) of the Act. WE WILL offer LaVerne Shoemaker im- mediate and full reinstatement to his former job, or one substantially equivalent to it, without prejudice to his seniority and other rights and privileges enjoyed by him, and pay him backpay for any loss of pay he may have suffered as a result of his layoff and subsequent discharge by us, with interest on any such sums at 6 percent per annum. WE WILL notify LaVerne Shoemaker, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL pay Roselyn Daily backpay for any loss of pay she may have suffered as a result of her layoffs by us, with interest on any such sums at 6 percent per annum. WE WILL, upon request, bargain collectively with said Amalgamated as the exclusive bar- gaining representative of all employees in the bargaining unit described below with respect to rates of,pay, wages, hours of employment, and other conditions of employment, and, if an un- derstanding is reached, embody such un- derstanding in a written , signed agreement. The bargaining unit is: All our production and maintenance em- ployees employed at our Meshoppen, Pennsylvania, plant, exclusive of office clerical employees and supervisors as defined in Section 2(11) of the Act. All our employees are free to become or remain, or refuse to become or remain, members of said Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization. C & M SPORTSWEAR MANUFACTURING CORPORATION (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsyl- vania 19107, Telephone 215-597-7601.