The Loray Corp.

THE LORAY CORP. The Loray Corporation and International Ladies Garment Workers' Union, AFL-CIO. Cases 10-CA-7759 and 10-CA-7866 July 20, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On December 3, 1969, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, 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 affir- mative action, as set forth in the attached Trial Ex- aminer's Decision . Thereafter, the Respondent filed 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 connectionwith this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner to the extent consistent herewith. 1. We agree with the Trial Examiner that the Respondent violated Section 8(a)(1) of the Act by its numerous coercive statements and speeches and acts of interference discussed and set forth in his Decision. We also agree that the Respondent vio- lated Section\8(a)(1) and (3) of the Act by unlaw- fully laying off certain employees on March 12, 1969, for engaging in protected concerted activi- ties, by discharging Rene Clark on March 10, 1969, and Sara Helen Graham on August 17, 1969, and by refusing to reinstate Flora Mae Woods on June 23, 1969. However, in agreeing with the Trial Ex- aminer that Clark and Graham were discriminatori- ly discharged, we find it unnecessary to and do not rely on his rationale that such conduct was violative of the Act because it was inherently destructive of ' The Respondent has excepted to certain credibility resolutions made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponde- rance of all the relevant evidence convinces us that they were incorrect Such a conclusion is not warranted here. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3). 557 important employee rights as the reasonable and foreseeable consequences were to discourage union activity . It is clear from the record and from the findings of the Trial Examiner that the Respondent had knowledge of Clark and Graham 's union activi- ties and that their discharges were based on their union activities. Accordingly, we find that the Respondent knew of Clark 's and Graham 's union activities and that this was its motivation for the discharges.2 2. Although in the complaints the Respondent was charged with violation of only Section 8(a)(1) and (3 ) of the Act, the Trial Examiner in his Remedy ordered the Respondent to recognize and to bargain collectively with the Union in an ap- propriate unit of the Respondent's production and maintenance employees . The Trial Examiner held that a bargaining order is required without the need of inquiry into the majority status of the Union to redress the "outrageous " and "pervasive" unfair labor practices engaged in by the Respondent and that such an order is necessary to repair the unlaw- ful effect of those practices. The Trial Examiner found legal support for such an order in the nu- merous Board and court cases in which bargaining orders have been found to be appropriate remedies, in the absence of an allegation of an 8(a )( 5) viola- tion, or even a bargaining demand, where the union had achieved majority status,' and in the Supreme Court's recent, Gissel Packing Company decision 4 which he found suggested the possibility of impos- ing a bargaining order, without the need of inquiry into majority status on the basis of cards or other- wise in "exceptional " cases. Although we agree that Respondent's conduct was "outrageous" and "pervasive," we are of the opinion that a bargaining order in the circumstances here is not appropriate. We note that the record does not at any point reveal a showing of majority status on the part of the Union. Although on March 12, 1969, the Union through a telegram signed by approximately 16 em- ployees, and on the same day essentially the same employees orally, made a demand upon the Respondent to recognize and to bargain with the Union alleging that a majority of its employees desired the Union, no demonstration was made as to how many of the other approximately 62 em- ployees in the bargaining unit had signed authoriza- tion cards or in other ways expressed a desire for the Union. Similarly, no substantial evidence of em- ployee interest in the Union was introduced at the See Santa Fe Dulling Company, 180 NLRB 1049. ' See, e .g., United Steelworkers of America, AFL-CIO v. N L.R B., 376 F 2d 770, 772-773 (C.A.D.C ); J. C. Penny Co , Inc v. N L.R B., 384 F 2d 479,485-486 (C.A. 10). ' N.L R B. v. Gissel Packing Co., 395 U.S. 575. 184 NLRB No. 57 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing, and union authorization cards allegedly secured by the Union were not placed into evidence. The record, therefore, does not reflect how many, if any, valid authorization cards were obtained by the Union. Indeed, the issue of the Union's majority status, or the desire of the Respondent's employees to be represented by the Union, was not litigated at any stage of the proceeding. Moreover, we have devised special remedies for the aggravated and pervasive 8(a)(1) and (3) violations which in our opinion will enable employees freely to exercise their Section 7 rights to choose whether or not they wish to be represented by the Union. In the circumstances, we find, therefore, that a bargaining order is not ap- propriate, and the Trial Examiner's recommended remedy and order in regard thereto is not adopted.5 3. However, we agree with the Trial Examiner's position that, under the circumstances of this case, in view of the nature of the unfair labor practices engaged in by the Respondent, the traditional requirement of reinstatement and backpay for the 8(a)(3) violations and a cease-and-desist order for the 8(a)(1) violations with the usual posting of notices would in and by themselves not be adequate to disabuse the effects of the Respondent's conduct and to bring home to the Respondent's employees the message that the Respondent is being required to cease and desist from interfering with their rights guaranteed by Section 7 of the Act, to join or not join a union. Remedies other than the conventional ones are clearly called for and, in our opinion, should be tunedito the exigencies of the case. We note that the Supreme Court has recognized that Congress conferred upon the Board broad dis- cretion to create remedies to meet specific situa- tions, as here, where the normal modes of relief will not suffice to right the outstanding wrong.' Mindful of the proscription against remedies which may un- duly penalize a respondent, as well as of the necess- ity of being imaginative and innovative in fashion- ing our orders, we have concluded that the follow- ing would be appropriate as a remedy in the instant case.7 Because of the character and scope of the unfair labor practices found to have been engaged in by Respondent, we shall order that Respondent cease ' See H. W. Elson Bottling Company, 155 NLRB 714, 716, enfd as modified 379 F 2d 223 (C.A. 6). 0 See, e g , Phelps Dodge Corp. v NLRB., 313 U S 177, 194 See also May Department Stores dibla Famous-Barr Company v N.L R B, 326 U S 376, 391-392, N.L.R B. v Seven-Up Bottling Company, ofMianu, 344 U S. 344,International Association ofMachinists, Tool and Die Makers Lodge No 35 v NL RB., 311 Us 72, N L.R B v. Globe Products Corp, 322 F 2d 694 (C.A 4), Standard Generator Service Co. of Mo v. N.L.R B., 186 F 2d 606 (C A 8), N L.R B v Idaho Egg Producers, Inc, 229 F.2d 821 (C A. 9), Etchleay Corporation v N L.R B , 206 F 2d 799 (C A 3) See also H. R. Rep No 1147, 74th Cong, 1st Sess. 23-24, 11 Leg. Hist. 3074 (NLRA 1935) 1 and desist from in any other manner interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. We find that our usual remedies , the posting of a notice and the order for reinstatement and backpay for the discriminatees , are insufficient to dissipate the effects of the Respondent's extensive and flagrant unfair labor practices . In this case it is es- sential in view of the flagrancy of the Respondent's opposition to unionization that each employee be made individually aware of his statutory rights and that his exercise of rights will be respected by his Employer . In our view the mere posting of notices would not serve this purpose and we find additional measures are necessary . Accordingly, in addition to posting copies thereof at appropriate places, we have ordered Respondent's owner , president, and chief administrator who was directly implicated and the major mover in the numerous unfair labor prac- tices to personally sign the notices.' We have also ordered Schwartz to personally read the attached "Notice to All Employees" at assembled meetings at which all employees will be reached, thereby directly placing on the notice the imprimatur of the person most responsible for the illegal acts in question.' We order this not out of any desire to punish or embarass Schwartz . However, in the light of the repeated adamant proclamations by Schwartz that it was futile for his employees to or- ganize, we are of the opinion that unless the em- ployees hear from Schwartz himself that he will conform his conduct to the requirements of the Act the coercive and restraining effects of Schwartz' conduct and utterances will not be dissipated. In view of the Respondent 's widespread and ex- tensive coercive conduct , we have also ordered that the Respondent mail copies of the "Notice to All Employees" signed by Schwartz, president and owner, to all employees to permit those who heard the lengthy notice read in the plant or who may or may not have read the posted notice to peruse it at their leisure and to absorb it fully . The mailing of the notice will also insure that employees who are sick, on vacation, or otherwise absent when the notice is read will have an opportunity to be adequately informed of the Respondent 's intention to refrain from engaging in unfair labor practices. 10 ' See, e.g , Stevens I J P Stevens and Co., Inc, 157 NLRB 869, enfd. as modified 380 F 2d 292 (C A 2), cert denied 389 U S. 1005, Stevens II J P. Stevens Co, Inc., 163 NLRB 217 , enfd. as modified 388 F 2d 896 (C.A 2), Stevens III & IV J P Stevens & Co, Inc., 167 NLRB 266, enfd as modified 406 F.2d 1017 (C A 4), Stevens V J P. Stevens & Co., Inc, 171 NLRB 1202, enfd 417 F. 2d 533 (CA 5) ' See Great Atlantic & Pacific Tea Company, Inc , 134 NLRB 458, fn 1. s Cf. Great Atlantic & Pacific Tea Co , supra, Stevens V 10 See Stevens V, supra; Stevens 11, supra, Stevens I, supra . H W Elton Bottling Co , Great Atlantic and Pacific Tea Co , Inc , supra THE LORAY CORP. As Respondent has violated the rights of those employees who had not yet had a chance to formu- late their desires with regard to representation as well as the rights of those who had done so, we deem it appropriate that employees be afforded further opportunity to engage in organizational ef- forts without fear of becoming victims of Respon- dent's wrath or reprisals. To this end we shall require that, upon request of the Union made within 1 month of this decision, the Respondent im- mediately grant the Union and its representatives reasonable access for a 3-month period to its bul- letin boards and all places where notices to em- ployees are customarily posted." Furthermore, in order to redress the imbalance created by Respon- dent's numerous coercive speeches to its employees assembled on company time and property and the affirmative steps Respondent Schwartz took at the same time to prevent the Union's access to em- ployees, such as the harassment of employees and the union agents who attempted to engage in or- ganizational activity outside the confines of the Respondent's property and the enforcement of in- valid no-solicitation rules within the plant, we deem it necessary under the aggravated circumstances in- volved herein that the Union be given an opportu- nity to present its views. Accordingly , we shall require that, upon request of the Union, Respon- dent shall make available to the Union and its representatives , at a mutually agreeable time within 3 months of this Decision, suitable facilities such as are customarily used for employee meetings so that the Union may speak to the employees assembled on company time . Such facilities shall be made available for one 1-hour meeting. In addition, in the event the Respondent ad- dresses its employees on the question of union representation during the 6 months succeeding the issuance of this Decision, upon the request of the Union the Respondent shall make available to the Union and its representatives on each occasion, at a mutually agreeable time, similar facilities so that the Union may present its views to the employees assembled on company time for a similar period.12 The atmosphere of fear generated by the illegal threats, interrogations, and discharges will in our opinion be a deterrence to employees to engage in lawful organizing activities during nonworking time on company premises. Accordingly , because of the number of employees involved, the normal tur- nover which may be expected , and the separate ad- dresses of the employees, we shall require the Respondent to supply the Union, upon request See Stevens II through V, supra, H W Elson Bottling Go, supra " Cf H W Elson Bottling Company, supra 559 made within 1 year, the names and addresses of its current employees. This will enable the Union to contact all employees outside the plant and to present its message in an atmosphere relatively free of restraint and coercion. We find that such requirement is necessary to facilitate union commu- nication in the face of the impression of surveil- lance and other organizational difficulties imposed by the Respondent. The furnishing of such list under the circumstances is not unreasonable and would not be unduly burdensome. Is Finally, since we are convinced in the circum- stances of this case that the Respondent may have made it impossible for the Union to obtain designa- tions from 30 percent of the employees to support a petition for an election in which employees may have an opportunity to express their free choice, we shall, upon request of the Union made within 30 days immediately following compliance herewith by Respondent, conduct an election in the unit found appropriate herein. 14 CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discharging Rene Clark on March 10, 1969, Sara Helen Graham on August 17, 1969, and refusing to reinstate Flora Mae Woods on June 23 , 1969, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. By unlawfully laying off on March 12, 1969, Flora Mae Woods, Opal Allen, Gladys Daniels, Mable Small, Shirley Mabley, Lucille Driver, Leasie Bragg, Mary James, Minnie Ruth Griffin, Louella Paul, Mary Etta Holland, Majorie Covington, Agnes Forster, Mary Townsend, Betty Ann Jones, and Valeria Elders, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3 ) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 7. All production and maintenance employees of The Loray Corporation at its Savannah, Georgia, " See Stevens III and IV, supra, Stevens V, supra 14 H. W Elson Bottling Co , supra 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant excluding all office and clerical employees, guards, and supervisors as defined in the Act con- stitute an appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respon- dent, The Loray Corporation , Savannah, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Interna- tional Ladies Garment Workers' Union , AFL-CIO, or any other labor organization, by discriminatorily discharging or refusing to rehire any of its em- ployees or discriminating in any other manner in respect to their hire or tenure of employment or any term or condition of employment. (b) Creating the impression of surveillance by telling employees it knew who had signed union cards. (c) Informing employees that it would never deal with the Union, and that it would do em- ployees no good to engage in self-organization. (d) Prohibiting employees from talking about or discussing the Union in the restrooms. (e) Threatening employees with discharge for engaging in union activity. (f) Representing to union adherents that their jobs were in jeopardy. (g) Threatening employees with police action if they distributed union papers or otherwise engaged in union solicitation in the plant, and by causing the arrest of union officials for passing out union hand- bills in the vicinity of the plant. (h) Offering employees a sum of money if they returned their union authorization cards to the Respondent. (i) Falsely telling employees that it had lost con- tracts because of the Union's organizing. (j) Falsely telling employees that if the Respon- dent became unionized nonunion customers would pull their work out immediately , employees would be without work, and the factory would possibly close. (k) Informing employees that it had discharged an employee who was active in the Union because she was a troublemaker. (1) Threatening to close the plant if the Union came in. (m) Indicating that once the Union was out of the picture reprisals would be taken against union supporters. (n) Promising benefits to employees in order to discourage support for the Union. (o) Threatening to refuse to bargain with the Union if it is lawfully selected as the collective-bar- gaining agent. (p) Threatening to refuse to permit employees to discuss factory problems with it if a majority of the employees signed cards giving the Union the right to bargain for the employees. (q) Disciplining or penalizing employees for concertedly presenting demands for union recogni- tion. (r) Banning employees ' lawful rights to wear union buttons except when warranted for the main- tenance of production and discipline. (s) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their rights to self-organization , to form labor organizations , 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 engage in concerted activities with the purpose of collective bargaining or other mutual aid or pro- tection , or to refrain from any and all such activi- ties. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Rene Clark, Sara Helen Graham, and Flora Mae Woods immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions , without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of pay that they may have suffered by reason of the Respondent's discrimination against them in accordance with the recommendations set forth in the Trial Examiner's Decision entitled "The Recommended Remedy." (b) Make Flora Mae Woods , Opal Allen, Gladys Daniels, Mable Small, Shirley Mabley, Lucille Driver, Leasie Bragg, Mary James, Minnie Ruth Griffin, Louella Paul, Mary Etta Holland, Majorie Covington , Agnes Forster, Mary Townsend, Betty Ann Jones, and Valeria Elders whole for any loss of pay that they may have suffered by reason of the Respondent's discrimination against them in ac- cordance with the recommendations set forth in the section of the Trial examiner's Decision entitled "The Recommended Remedy." (c) Notify any of the aforementioned persons 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. THE LORAY CORP. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and rights of employment under the terms of this Order. (e) Mail a copy of the attached notice marked "Appendix"" to each employee and post copies at noticeable and sufficient places in its plant in Savannah, Georgia, as described below. Copies of said notice on forms provided by the Regional Director for Region 10 shall be signed by Respon- dent's president and owner, LeRoy Schwartz. Thereafter, a copy shall be mailed by the Respon- dent to each of its employees currently working in its plant, and additional copies shall be posted by it 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 the Company to insure that said notices are not altered, defaced, or covered by any other material. (f) Upon request of the Union, immediately grant the Union and its representatives reasonable access for a 3-month period beginning with the is- suance date of this Decision to its bulletin boards and all places where notices to employees are customarily posted. (g) Convene during working time after the is- suance of this Decision all its employees at an as- sembled meeting either by shifts or departments or other means so that all employees are present, and President LeRoy Schwartz shall read to the assem- bled employees the contents of the attached Ap- pendix. (h) Upon request of the Union, made within 1 year of the issuance date of this Decision, make available to the Union a list of names and addresses of all employees currently employed. (i) Upon request of the Union, make available to the Union and its representatives, at a mutually agreeable time within 3 months of this Decision, suitable facilities such as are customarily used for employee meetings so that the Union may present its views to the employees assembled on company time. Such facilities shall be made available for one 1-hour meeting. In the event Respondent addresses the employees on the question of union representa- tion during the 6 months succeeding entry of this Order, upon request of the Union it shall make 11 in the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National 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 " 561 available to the Union and its representatives on each occasion, at a mutually agreeable time, similar facilities so that the Union may present its views to the employees assembled on company time for a similar period. (j) Notify the Regional Director for Region 10, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or refuse to rehire or otherwise discriminate against employees in order to discourage membership in the Interna- tional Ladies Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT create the impression of sur- veillance by telling employees we know who had signed union cards. WE WILL NOT inform employees that we will never deal with the Union and that it would do employees no good to engage in self- organiza- tion. WE WILL NOT prohibit employees from talk- ing about or discussing the Union in the restrooms. WE WILL NOT threaten employees with discharge for engaging in union activity. WE WILL NOT represent to union adherents that their jobs are in jeopardy. WE WILL NOT threaten employees with po- lice action if they engage in union solicitation in the plant by distributing union papers. WE WILL NOT cause the arrest of union offi- cials for passing out handbills in the vicinity of the plant. WE WILL NOT offer employees a sum of money if they return their union authorization cards. WE WILL NOT falsely tell employees that we have lost contracts because of the Union's or- ganizing. WE WILL NOT falsely tell employees that if we become unionized nonunion customers would pull their work out immediately, they would be without work, and the factory would possibly close. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT inform employees that we have discharged an employee who was active in the Union because she was a troublemaker. WE WILL NOT threaten to close the plant if the Union comes in. WE WILL NOT indicate that once the Union was out of the picture reprisals would be taken against union supporters. WE WILL NOT promise benefits to employees in order to discourage support for the Union. WE WILL NOT threaten to refuse to bargain with the Union if it is lawfully selected as the collective-bargaining agent. WE WILL NOT threaten to refuse to permit employees to discuss factory problems with us if a majority of the employees sign cards giving the Union the right to bargain for the em- ployees. WE WILL NOT discipline or penalize em- ployees for concertedly presenting demands for union recognition. WE WILL NOT ban our employees' lawful rights to wear union buttons except when war- ranted for the maintenance of production and discipline. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the aforesaid Union , or any other labor organiza- tion , to bargain collectively through represen- tatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. WE WILL assemble and read this notice to all our employees. WE WILL mail a copy of this notice to all our employees. WE WILL grant the Union reasonable right to utilize our bulletin board. WE WILL permit the Union to address em- ployees at a mutually agreeable time within 3 months of this Decision at suitable facilities to address employees on company time for one 1- hour meeting. In the event that we address em- ployees on the question of union representa- tion during the 6 months succeeding the is- suance of this Decision we will also make available to the Union and its representatives on each occasion, at a mutually agreeable time, similar facilities so that the Union may present its views to the employees assembled on company time for a similar period. WE WILL, upon the request of the Union, im- mediately give to the Union a list of names and addresses of all our employees. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions, without loss of seniority or other rights and privileges, and we will make them whole for any pay they lost because of the discrimina- tion against them, with interest. Rene Clark Sara Helen Graham Flora Mae Woods WE WILL make Flora Mae Woods, Opal Al- len, Gladys Daniels , Mable Small , Shirley Mabley, Lucille Driver, Leasie Bragg, Mary James, Minnie Ruth Griffin, Louella Paul, Mary Etta Holland, Marjorie Covington, Agnes Forster, Mary Townsend, Betty Ann Jones, and Valeria Elders whole plus interest for any wages lost on March 12, 1969, when we sent them home because they tried to present a de- mand that we recognize the Union. WE WILL notify any of the aforementioned persons if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application after discharge from the Armed Forces, in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act. All our employees 'are free to become or remain, or refrain from becoming or remaining , members of the International Ladies Garment Workers' Union, AFL-CIO, or any other labor organization. THE LORRY 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, Peachtree Building, Room 701, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THE LORAY CORP. 563 LOWELL GOERLICH, Trial Examiner: In Case 10-CA-7759 the original charge was filed on April 25, 1969, and served on The Loray Corporation, the Respondent herein, by registered mail on April 25, 1969; a copy of the amended charge in the same case was filed on April 28, 1969, and served on the Respondent by registered mail on April 28, 1969. The complaint and notice of hearing was is- sued on June 9, 1969. In Case 10-CA--7866 the charge was filed on July 18, 1969, and was served on the Respondent by registered mail on July 18, 1969. The complaint and notice of hearing was is- sued on August 13, 1969. The General Counsel's motion to consolidate cases was granted on August 18, 1969, and Cases 10-CA-7759 and 10-CA-7866 were consolidated. In the complaints the Respondent was charged with violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed timely answers denying that it had engaged in or was engaging in the unfair labor practices alleged. The cases came on for hearing on July 8, 9, and 10, 1969, and August 26, 27, and 28, 1969, at Savannah, Georgia. Each party was afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered by the Trial Ex- aminer. Upon the whole record and upon his observation of the witnesses, the Trial Examiner makes the fol- lowing: FINDINGS OF FACT AND CONCLUSIONS' AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT The Respondent is and has been at all times material herein a Georgia corporation with its prin- cipal office and place of business located at Savan- nah, Georgia, where it is engaged in contract manu- facture of ladies' and children's ready-to-wear clothing for other manufacturers. Respondent, dur- ing the past calendar year which period is represen- ' In making his findings of fact and conclusions the Trial Examiner has considered the demeanor of the various witnesses who appeared before him and has passed upon their credibility. As to those witnesses who testified in contradiction to the Trial Examiner's findings, the Trial Ex- aminer has discredited their testimony either as being in conflict with the testimony of credible witnesses or because it was in and of itself incredu- lous and unworthy of belief "A trier of fact may find that though uncon- troverted, testimony may bear inconsistencies when viewed in the light of the record as a whole , common experience , and credibility determnna- tions."J C Penney Company, Inc. v N L.R B , 416 F 2d 702 (C A 7) The Trial Examiner is not unmindful of the Supreme Court's observation in tative of all times material herein, received more than $50,000 for manufacturing apparel from other manufacturers located outside the State of Georgia. The Trial Examiner finds that the Respondent is and has been at all times material herein engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Ladies Garment Workers' Union, AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts At all times material herein Leroy Schwartz was the Respondent's owner, president, and chief ad- ministrator, "having to do with all phases of the operation"; Mable Anderson was the Respondent's plant manager; and alleged discriminatee , employee Flora Mae Woods, was the chairman of the Union's organizing committee. The Union commenced an organizational cam- paign among the Respondent's employees in Janua- ry 1969.2 The organizational period continued until shortly before May 9, the date upon which a stipu- lated consent representation election was to have been conducted in a unit of the Respondent's em- ployees, to wit: "All production and maintenance employees including truck drivers, mechanics and janitors at the Employer's Savannah, Georgia plant, but excluding office clerical employees, profes- sional employees, floor ladies, guards and super- visors as defined in the Act." The election was can- celed at the request of the Union. Throughout the organizational period employees who favored the Union and those who opposed the Union were ac- tive protagonists.3 The Union's first organizational meeting was held on January 17. On the day before such meeting, Schwartz initiated a series of captive meetings of the Respondent's employees which continued until May 9. Schwartz was the only speaker at these meetings and by his remarks he left no doubts that he favored union disaffection. The Union was referred to as a "cancer." At the January 16 meet- ing Schwartz informed the employees that he heard N L.R B v Walton Manufacturing Company, 369 U S 404,408 For the demeanor of a witness may satisfy the tribunal , not only that the witness' testimony is not true, but that the truth is the opposite of his story, for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance , as to give assurance that he is fabricating, and that , if he is, there is no alternative but to assume the truth of what he denies " Dyer v MacDougall, 201 F 2d 265, 269 r All dates herein refer to the year 1969 unless otherwise noted 3 Edna Hodges, a witness called by the Respondent, testified. "The union had their little crowd and others that didn 't want the union had theirs. " 427-835 0 - 74 - 37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rumors that the Union was trying to organize and he knew that "there was going to be a Union meet- ing the following Friday night." On February 26' Schwartz again addressed the employees. Among other things he told employees that he knew all who had signed union cards and that he could not "say the word [he] would like to call them." He said that "he had friends that would come back and tell him things, volunteer him that information."5 Schwartz further observed that he "wasn't making any money and when he did make money he would pay it to the girls and not to no Union," and that he was "not paying his money to no Union for the Union men to ride around in new automobiles all over the country and giving his money to the Union men to get out of jail on." He remarked that "[t]his is a nonunion plant and it is going to stay a nonunion plant." He said, "I can tell you now that there is to be no union in this plant next Tues., Wed., Thursday, or Friday.... I do not intend to have a union in this plant.... I can not do anything about the girls after working hours but if anything happens during working hours they will be fired on the spot, no talking in the bathroom on my time,6 before work-lunch time, and after work. I can not do anything about that unless some one is harrassing anyone." He advised, "This is a free country so just shut the door in their face." On March 4, Ramelle McCoy, union director of organization, addressed a telegram to Respondent listing the following employees as members of the Union's organizing committee: Flora Mae Woods, Agnes Forster, Gladys Daniels, Marjorie Covington, Minnie Ruth Griffin, Mable Small, Mary Townsend, Rene Clark, Shirley Mabley, Opal O'Berry, Louella Williams, Ella Mae Jones, Katherine Hardy, Mary Wilkins, and Murle Cunningham. On March 6, Schwartz read the telegram to as- sembled employees. He reiterated that "no damn union is coming into the plant now or ever." He continued, "I want to tell you one of the union committee talked another girl into signing her name ' Commencing with the meeting of February 26, the findings of the Trial Examiner are for the most part drawn from the notes transcribed by Flora Mae Woods as viewed in the light of the record as a whole . After each of Schwartz' speeches, either at noontime , or in the evening of the same day, Flora Mae Woods committed to writing her recollection of Schwartz' re- marks. The probative value of these notes is limited , of course, by the in- tegrity and the recollection of the witness at the time the notes were trans- cribed and whether the notes actually reflect the purport of Schwartz' re- marks in the context used The Trial Examiner has considered these limita- tions. The Trial Examiner has further considered the veracity of Schwartz as a witness. His comportment and demeanor as a witness, his union an- tipathy, his failures to recall, his supererogatory testimony , and his im- plausible remarks, all when viewed in the light of the record as a whole, convince the Trial Examiner that Schwartz was an incredible witness. It is noted, as examples of Schwartz' dissembling, that in the face of his prolific and massive efforts to defeat the Union he testified, "I was less concerned with the Union than anybody" and "I could care less about the Union." s Employee Edna Hodges testified that she volunteered union informa- tion to Schwartz and told him that she was "strictly" against the Union, that she did not think a union was needed, and that she was going to do everything she could "to keep it out." ° Employee Mable Small remembered that Schwartz had said that "any- body talking about the union during working hours would be fired " on a napkin for job security, which was a lie. I can fire anybody anytime not for union, but for 44 other reasons . I will not let anyone go as long as their work is good and they make production, just do not listen to any of this union mess if you want information come to me I will answer your questions. "7 On Friday, March 7, the Union distributed a handbill at the employer's premises, which con- tained a copy of the March 4 telegram with the words, "The members of your union committee are doing their part, do your part. Sign and mail the detached card today." On Monday, March 10, the Respondent discharged Rene Clark, a black member of the or- ganizing committee, who had assisted in passing out handbills on March 7. According to Schwartz, Clark was discharged for "nonproduction." Her makeup pay for the week ending March 1 exceeded $37.8 After the hand- billing incident Schwartz reviewed certain produc- tion records. He explained, " I was getting a-I wanted to analyze my particular payroll. I had the time on that particular day, let's say, that particular week. I decided I wanted to go over my payroll which is my privilege and frankly speaking, when I noticed this over here, I thought as I will state and I will my reasons why I took the action, that I don't think Rene Clark was producing anything near her ability at the time and was purposely nonproduc- tive. "e Schwartz additionally explained that he em- ployed an "at-random" procedure "to check em- ployees' production records" and that he "just hap- pened" to review Clark's earnings. Prior to the date of Clark's discharge, according to Schwartz, he had not reviewed a payroll for 2 or 3 months. Schwartz acknowledged that he gave Clark no warning; he did not inquire why she was so low in earnings for the week in question; he made no inquiries of her supervisor; he made no investiga- tion at all; he knew that in other weeks her produc- r Along this line employees testified that Schwartz had said that no em- ployees would be discharged for union activities "[iIf they could do their work right" and that employees " had a perfect right to sign anything that [they] wanted to sign" and that "if anybody was harassed or bothered that he would discharge them." In view of Schwartz' other repeated coercive remarks, these assurances could have had little effect to instill in employees the idea that they were free to engage in union activities without reprisals . Schwartz was blowing hot and cold in an attempt to comply with the letter of the law but not with its spirit ° Makeup pay is the deficit in earnings incurred by an employee who does not earn, based upon her piecework rate, the minimum wage of $1 60 per hour ° Schwartz also testified, I will say it this way that she just didn't want to work that week over there for some reason or the other This was my thinking at the time I terminated her. In our business it stands, Your Honor, you have people that will some times for various reasons have a fight with their husband and they will come in and it is impossible to work under this, where some weeks you will have your peaks and your valleys and so on; but you have to have a overall outlook if you have been in this business and let's say you do have a sixth sense about certain things THE LORAY CORP. 565 tion was better and for her last week of work "con- siderably greater"; he was aware that she had "one thing that was very good," the "desire to become an operator"; he knew that she was acceptable to her supervisor; he knew that her discharge was not recommended by her supervisor; and he was cogni- zant that other girls may have had as high makeup pay as Clark.10 According to Schwartz, without in- vestigation as to why Clark's earnings were so low, he said "terminate that girl at once." Clark had not been warned either by her super- visor, Betty Taylor, or Plant Manager Anderson that her production record made her amenable to discharge and, except for the action taken by Schwartz, it seems clear that she would not have been discharged on March 10. Clark's actual discharge was effected by Ander- son upon the direction of Schwartz.tt According to Anderson she did not remember discussing the discharge with Schwartz. Anderson testified that the Respondent had no set policy as to how long it tolerated excessive makeup pay on the part of an employee. Anderson explained, "If a girl were to run make-up pay consistently week after week, then you would have trouble. But, as you will find, on some paycheck stubs there will be no make-up pay, and then next week she might have. It could have been during the time that a regular operator, production operator, when the job she was on they had caught up on that and she was put somewhere else." Anderson added, " it is the policy of the company to look into the situation with regard to each girl to determine why she had this make-up pay, and then based upon that you make a determination what to do with her. . . ." This policy was not followed in respect to Clark's discharge. On the day after Rene Clark's discharge, March 11, Schwartz again assembled the Respondent's employees. Among other things he said, "I want you to know that there are less people in here today than was in here yesterday and there is going to be less everyday." Schwartz accused Union Represen- tative Leste of lying by telling employees that they could have a union "but no dam [sic] union is going to be in this plant ." He told employees that if they wanted their union cards back to get in touch with their lawyer who could get it for them.12 Schwartz made reference to the handbill dis- tributed on March 7. He said that there would be no more handbilling at the plant. "The police will be out here everyday to arrest anyone that takes part in handing out union papers." He added that handbillers would have been arrested on March 7 but that he had told them he would give them a warning. On that afternoon Union Representative Leste was arrested for distributing handbills in the vicinity of the Respondent's plant by two off-duty county policemen who were hired by Schwartz after March 7. The Respondent's plant is located on Louisville Road, a comparatively busy highway. A driveway on each side of the plant connects the plant premises with Louisville Road. A ditch runs parallel with Louisville Road between Louisville Road and the Respondent's premises. At or about 4:30 p.m. Union Representative Leste arrived in the vicinity of the plant where he handed union leaflets to em- ployees Flora Mae Woods and Marjorie Covington (who had just emerged from the plant) for distribu- tion to employees who were also leaving the plant. Woods and Covington posted themselves at the right-hand driveway. Leste walked along Louisville Road toward the left-hand driveway carrying leaflets for distribution to employees. While yet on the roadside of the ditch two uniformed policemen approached Leste; he was told that "the people who own this shop don't want you here." He was ordered to leave the premises. Leste replied that he was there for "the purpose of distributing Union literature" which was his right. He further stated that he was not on company property; that he was on the side of the road, and that it was his intention to stay and "disseminate this literature." The of- ficers warned him either to "leave the premises and discontinue leafletting" or be arrested and "taken . to jail." Leste declared his intention to distribute union literature. He was placed under arrest. By this time Woods had reached the group. Leste handed her all but three or four of the leaflets in his possession and said, "Here, take these and leave, I am going to jail." The officers directed Leste toward the Respondent's plant. When Leste showed reluctance to step on the Respondent's property, one of the officers grabbed Leste by the left shoulder and with his right hand pushed him across the ditch and escorted him onto the Respondent's premises and into the Respondent's offices. While these events were occurring employees were exiting from the Respondent's plant. At the time of his ar- rest Leste had distributed no leaflets to the exiting employees. In the Respondent's office the officers asked for Mr. Schwartz. They were told that he was not there but was expected "back any minute."13 Schwartz did not appear. After a phone call by one of the of- ficers another police officer arrived about 5 o'clock 10 For the week ending March 1, 1969, Flora Mae Woods had makeup pay of $37 65. She was not discharged at that time i i Anderson was asked, "You don't know whether it was your decision or his decision ? A. Right " Schwartz was asked, "Did Mrs. Anderson say anything to y iu before you discharged Rene Clark" A No " ri On this subject Schwartz testified "I said I would be willing to give $25 00 to see the first card that ever came back [from the Union] because in my experience I have never seen it period " 13 Referring to March 11, Schwartz testified "I am satisfied I was out of town that day " When asked where he had been he answered, "It might be personal " Later when he was asked if he were present in the plant anytime during the day Leste was arrested, he answered, "I don't recall " As noted above the Trial Examiner has found that Schwartz addressed assembled employees on March 1 I 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with a marked police car and Leste was taken to jail where he was charged with "failing to move when ordered by police officers." Thereafter on March 14 a hearing was conducted before the Honorable Henry Brennan, Judge of the Recorder's Court of Savannah, Chatham County, Georgia. Schwartz appeared as a prosecuting witness. The case was dismissed. On the morning of March 12, certain of the Respondent's employees engaged in a "standout" pursuant to a decision made at a union meeting. By the time work commenced at 8:30 a.m. 15 em- ployees had joined the "standout" group. Union Representatives McCoy and Leste were present. Numerous police officers were also present. About 8:30 a.m. according to Schwartz, McCoy indicated a desire to speak to him, whereupon Schwartz turned to the officer whom he had hired or another officer and said "to the effect," "[T]hese people are trespassing on my property.... I expect you to see that these people do not trespass on my proper- ty." Schwartz then entered the plant. The police of- ficer directed McCoy to move. McCoy inquired, "You mean these girls that work here can't go in that plant." The officer replied that if they were employees they could enter. McCoy, who was hold- ing a number of union authorization cards in his hand, handed them to Flora Mae Woods who then entered the plant followed by employees Marjorie Covington, Shirley Mabley, Agnes Forster, Opal Al- len, Leasie Bragg, Valeria Elders, Minnie Ruth Griffin, Mary Ruth Townsend, Lucille Driver, Mary Etta Holland, Louella Paul, Betty Ann Jones, Mable Small, Mary James, and Gladys Daniels. Some time prior to this event, during the "stan- dout," it had been decided that the group would go into the building with the idea of speaking to Schwartz about union recognition. According to witness Leasie Bragg, McCoy said, "Flora, you lead the way. If he won't let you go to work, just turn around and come back out." In any event it ap- pears that if Schwartz's response was negative, it had been resolved that the group would return to the outside of the plant. Woods, followed by the others, proceeded down a short hallway to the door opening into the sewing department where Schwartz appeared. Holding the union cards in her hand Woods said, "Mr. Schwartz, we want to talk to you about the majority of Union cards that we have got signed." Schwartz replied that he did not have time to talk to the em- ployees, that if they wanted to talk with him to talk with his lawyer, that they should get out and go home, that they were trespassing, that they were late for work, and that they should report for work tomorrow morning."' The group turned and de- parted. " Schwartz testified " I said something to the effect, you will have to make an appointment with me or if you want to discuss anything with me speak to my attorney I also added something, I don't recall exactly what it Schwartz acknowledged that he needed the em- ployees and that he had never turned an employee away from work who came in late. He explained, when asked the reason why he didn't ask these em- ployees to work, "For the same reason I don't ask anyone any morning since I have been in business. I have never asked one of them to come in and go to work." Later in the day on March 12, Union Representa- tive McCoy directed a telegram to the Respondent. The telegram was as follows: THIS IS TO AGAIN INFORM YOU THAT A MAJORITY OF THE PRODUCTION AND MAINTENANCE EMPLOYEES OF THE LORAY CORP. PLANT LOCATED AT 2041 LOUISVILLE RD. SAVANNAH, GEORGIA HAVE DESIGNATED THE INTERNATIONAL LADIES GARMENT WORKERS' UNION AS THEIR EXCLUSIVE BARGAINING AGENT FOR PURPOSES OF COLLECTIVE BARGAINING AND TO REITERATE THE REQUEST MADE TO YOU THIS MORNING BY MYSELF AND BY UNION ORGANIZING COMMITTEE CHAIRMAN FLORA WOODS. TOGETHER WITH THE OTHER MEMBERS OF THE ORGANIZING COMMITTEE, THAT YOU PROMPTLY MEET FOR THE PURPOSE OF NEGOTIATING A COLLECTIVE BARGAINING AGREEMENT COVERING WAGES HOURS AND WORKING CONDITIONS. YOU ARE REQUESTED TO PROMPTLY RECALL TO WORK THE MEMBERS OF THE UNION ORGANIZING COMMITTEE WHO WERE LAID OFF BY YOU THIS MORNING AND TO MAKE THEM HOLD [SIC]FOR ALL WAGES LOST DUE TO THEIR LAYOFF. THE MEMBERS OF THE ORGANIZING COMMITTEE WHO WERE LAID OFF BY YOU THIS MORNING AT THE TIME OF THEIR REQUEST FOR A CONFERENCE WITH YOU ARE: FLORA MAE WOODS, LUCILLE DRIVER , MARJORIE COVINGTON, OPAL ALLEN, LEASIE BRAGG, AGNES FOSTER [SIC], GLADYS DANIELS, MARY JAMES, MARY TOWNSEND, MABLE SMALL, MINNIE RUTH GRIFFIN, BETTY ANN JONES, SHIRLEY MOBLEY [SIC], MARY ETTA HOLLAND, LOUELLA HALL [SIC], AND VALERIA ELDER [SIC]. On March 13 the Respondent responded to the foregoing telegram by a letter written by its attor- ney, Anthony J. Leggio. In part the letter con- tained: Irrespective of your representations, Loray Corporation has a reasonable doubt that the International Ladies Garment Workers Union represents an uncoerced and valid majority of its employees for purposes of collective bar- gaining . Under these circumstances the Com- pany feels that the most reliable determination of the desires of the majority of its employees in this respect would be best resolved by an was, something about those of you people please be here on time to come to work tomorrow, something to that effect " THE LORAY CORP. 567 election conducted by the National Labor Relations Board. While it does not appear to be material at this time the company wishes to further inform you that it does not acquiesce in or agree with factual representations contained in your tele- grams; e.g., that Flora Mae Woods informed Mr. Schwartz on March 12, 1969, of the union's majority status; that certain employees were laid off on the morning of March 12, 1969; and that any employees are entitled to back pay for lost wages due to their lay off. On March 26, 1969, Schwartz again addressed the employees, at or about 11:45 a.m. Among other things, he said "that no damn union was going to be in his plant." He indicated that the union represen- tatives were running around all over the States in their new cars getting arrested every day and using up union money to get out of jail. He said he was not going to pay his money to a union and "if and when he made some money he would pay it to the girls that worked for him. Not to no damn union." He stated that "he never had been union and he damn sure was not going union now." He further said, "I want you few union people to run back and tell him Walt Leste that I will never pay no health and welfare benefits into no damn union. I do not run no damn sweat shop here and we have no need for a union. Some of you have asked for your cards back. They say write to the office, my advice is to send a registered letter to the address I have posted. "ls Schwartz also said that he had "lost a few of his contracts because they had heard there was going to be a union in his shop, and they could not afford union prices. "16 Schwartz further stated "that no damn union is to be in his shop, but if one did come in he would not talk to anyone. They could write up their grievances but he would not talk to anyone." On April 14 the Union filed a petition for an election. The election, later vacated, was set for May 9, 1969. On April 15 Schwartz delivered another speech to his employees. During the speech Schwartz com- mented that he had received a notice that there was going to be a union election in the plant. Referring to the election he stated: "I am very glad to hear this for I want to get this cancer over with once and for all.17 I hope I can get it in the next 2 or 3 weeks. We will beat this thing for sure. I will say now as I have said before no damn union is going to come into this plant. We don't need no damn union in here. We have a union pro in here whose husband works with her." He further stated that he would repeat that Union Representatives McCoy and Leste were "damn liars" and he referred to Leste as a kind of man who ran around getting arrested. In his speech he also said, "I will say no damn body can make my right hand sign a damn thing.""' He further said, "The election will be held in this plant. I want to tell you all to vote as you please this is a free country, but I still say no damn union will be in here. But I will survive as I have done before. I had a plant in Gainsburg, 19 Tennessee, which because of union trying to come is a ghost town today. I have fired people before and never hired anyone back or payed [sic] any money to them for being fired. I never have and I never will." Schwartz noted that the people with which the Respondent did business would "pull" their con- tracts and the plant would not have enough work.20 He also related, "I will still say I will never sign a union contract no one can make my right hand sign a damn thing. I will never pay health and welfare benefits to no damn union. I have been in this busi- ness for 3 years here in Savannah, Ga., and am now starting to make a little profit from it. So if the union comes in we will not have a damn thing." Schwartz further commented, "All of this is I am saying is why I don't want a gosh damn union in here, that is why I spit on them." On April 17, 1969, Flora Mae Woods and Sara Helen Graham appeared at the Respondent's plant wearing union buttons which were 4 inches in diameter. [One read, "Union-Made for Union Maids," and the other, "Look for Our Label... We'll Look For Yours!" Both depicted a replica of the ILGWU cloth label.] Shortly after Woods commenced working "Schwartz came bouncing over to [her] machine." He put both of his hands on her machine and said, "Flora, what is that you have got on, what does that say, that thing say that you are wearing." Woods " Posted on the Employer's bulletin board was a notice which employee Dorothy Rudolph had " written to the union for her card back " " Edna Hodges testified that in one of his speeches, Schwartz said that "he had lost two or three [ customers ] already " n Admitted by Schwartz 18 Witness Shirley Mabley remembered that Schwartz had said that "nobody could make his right hand sign anything he did not want to sign" and that "he had never signed anything" and "nobody was going to make hum sign anything he didn 't want to " Schwartz testified that he said that "no one can make anyone's right hand sign anything they do not want to or words to that effect " 18 The town was Gainesboro, Tennessee R0 Agnes Forster remembered that Schwartz said that if the Respondent "didn't get the contracts ," there would be "no other choice but to close it " And that "if we go union . that some of the companies didn't want their work done under the union so if we went union and they cut off our work, we just didn't have any work " Betty Jean Mitchum remembered that Schwartz said that he "would not close the plant because of union activi- ties, but that the people that he would get work from, the contractors, would close it for us because they would not give us any work." Schwartz testified that he told the employees, " I told them that I was not for the Union That this company did not need a Union and that we ulti- mately since we were contractors if the people, the non-Union customers which I had would pull their work out immediately if we were a Union shop and that in all probability we would be without work and that because of that this factory would close in all probability because we would have no work", and "I said that the people we contract with are non-Union resources or manufactures and that they would not have their work made in a Union shop and would probably pull out all of their work out of our factory and that we would just not have a business anymore " There was no credible proof to support Schwartz' statements 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responded, "What, this?" He replied, "yes." She said, "Read it, I am busy." (At the time she was tying up a bundle.) He replied, "You mean that is what you are doing is Union work." (The button carried the wording "Union-Made for Union Maids.") Woods responded, "You can't prove it by me." Schwartz left Woods' machine and rushed toward Sara Graham's machine. Graham credibly described the event. ". . . around 9:30, Mr. Schwartz came rushing up to my machine and he said `what is this thing you are wearing' and before I could answer him, he said `speak up, I am talking to you' and I answered him then and he pointed as he rushed up toward my Union button, almost putting his hand on it and I was wearing it right here on my blouse; and I said Mr. Schwartz, I took my finger and I pointed, I said `this stood for what I stood for' and as he walked away the best that I re- member him saying or understanding him, he said `I will expect your work to be checked."'21 Shortly after the morning break at 10:20 a.m., Plant Manager Anderson escorted Graham to Schwartz' office. Here, after greeting her as a "troublemaker," Schwartz confronted her with two signed statements. In one, dated April 16, signed by Sara Parker, Edna Hodges, and Dorothy Rudolph, Graham was charged with threatening Parker, slamming the door to the bathroom in her face, and sticking her tongue out at her. In the other dated April 17 Betty Mitchum claimed, "While getting in line to clock out Sara Graham ask[ed] me to hurry up and I told her that I was to[o] tired to run and I dropped my time sheet and I was pushed and I nearly fell on my face." Graham denied the charges. Graham was discharged-in the words of Schwartz-"I discharged her because I felt the things that were told me, that that was the reason then and I believed them at that point and after I talked to her I was convinced that was what I wanted to believe and that is the action I took." (Emphasis supplied.) During the discharge scene Graham asked him why he rehired her if she was "so bad." He an- swered, "You are a good worker and I need good workers." Graham was first employed by the Respondent on May 19, 1966. She worked until July 1, 1966, at which time she quit in order to care for her child. She returned to work in October 1966, and con- tinued until October 1968, at which time her production rate was cut. She quit because the Respondent refused to restore the cut. Graham again returned to work on March 14, 1969. During her work periods she had been neither reprimanded nor disciplined. According to Schwartz, "At times, Sara[h] was a good operator." Discharge was never _' Such statement suggests the action Schwartz took against Clark whose work he checked after she appeared at the plant passing out handbills. " Schwartz testified that he asked Mitchum to commit the incident to writing "because previously my attorney had told me if there was any recommended by her supervisors. Schwartz was unable to recall another discharge for like cause. Graham's discharge was the first discharge based upon written statements of fellow employees. There is no credible proof that Schwartz heretofore ad- ministered a harsh discharge policy. On April 16, according to the uncontroverted testimony of Graham, she told Plant Manager An- derson that she would like to discuss something with her that she had been "wanting to tell [her] for a long time." Anderson suggested an immediate discussion. Graham suggested a later discussion in that the discussion would be protracted. Anderson responded that she would be available at 5:30 p.m. every day except Saturday. In the meantime Schwartz and Anderson con- versed after which Schwartz appeared at Graham's machine. Graham had mentioned to Anderson earlier that in order to make production she needed a board on her machine. Graham reviewed her need with Schwartz. Schwartz and Anderson again conversed outside the hearing of Graham. A board was placed on her machine and she was informed by Anderson that her rate was raised 40 cents. Graham, because of a church attendance con- flict, did not appear for a discussion with Anderson at 5:30 on that day. The next day she appeared with a union button. She was discharged. Prior to Graham's discharge Schwartz inter- viewed Betty Mitchum, Sarah Parker, Edna Hodges, Dorothy Rudolph, and Lucille Driver. Eu- dine Miley, also a witness to the Parker incident, was not interviewed. Betty Mitchum testified, in respect to the pushing incident, that she told Forelady Anderson and later Schwartz that, "I was going in line [to the timeclock] and Sarah Graham asked me to run and I told her I was too tired to run, and she pushed and I fell." Schwartz told her "to write it down and sign it. "22 The incident occurred on April 15, but was not reported to Schwartz until April 17. Mitchum remembered no witnesses although "about ten" employees were in the area. During the interview Schwartz did not inquire concerning witnesses. Schwartz testified, "Betty Mitchum volunteered this information to me and I decided right then and there yes that Sarah Graham would be discharged." Mitchum was opposed to the Union, a fact known to management. Sarah Parker testified that she reported to Plant Manager Anderson that she "was standing in the bathroom and Sarah came in and slammed the door back against [her]." She told Schwartz "about [her] being standing in the bathroom smoking and Sarah pushing the door up against [her]"; that she "was in the bathroom smoking somewhere around 3:30 and Sarah Graham came in to the smoking reason that I felt we should record it then we should and I felt at this par- ticular time since I was aware at this particular time that there was some Union activity that a statement of this kind was necessary " THE LORAY CORP. 569 area to go into the bathroom and pulled the door open and shoved it back against [her]." Schwartz asked for witnesses. Parker named Edna Hodges and Shirley Mabley. Parker "wrote it down on paper and signed it." Parker was opposed to the Union, a fact known to management. As Parker was leaving, Hodges entered Schwartz' office. Hodges testified that she told Schwartz that "Sarah Graham had hit Sarah Parker in the face or the head with the door." Schwartz asked Hodges to sign the statement which Parker had signed. She complied and upon Schwartz' request named Dorothy Rudolph and Shirley Mabley as witnesses. Hodges was opposed to the Union, a fact known to management. Dorothy Rudolph testified that she related to Schwartz that while in the smoking room "Sarah Graham came in the room as if to go in the bathroom ... She took the door knob and pulled the door back way open and she turned and looked at Sarah Parker. ... She took her hand and slammed it [the door] up against her." Rudolph queried, "What was all that about," then turned and walked away. Anderson showed Parker's state- ment to Rudolph and asked her if that was what happened. She answered, "Yes." After receiving assurances that she would get in no "trouble" she signed the statement. Rudolph was opposed to the Union, a fact known to management. Lucille Driver was also called to Schwartz' office in regard to the Parker incident. She was shown Parker's statement, after which she commented to Schwartz and Anderson that she "thought it was the most ridiculous thing that [she] had ever seen." Driver refused to sign the statement. When asked by Schwartz whether she thought the door hit Parker she told Schwartz, "I didn't know. I couldn't say because I don't think I am supposed to say what I think; only what I could see. I certainly don't think the door hit her because I did not see it," but I did whenever I looked up I realized that the door was being shut with more force than what the closing would allow it. When I looked up Sarah Parker was standing with her hands like this (indicating) and the person who had opened the door was going on into the bathroom. ... Sarah Parker's and Edna Hodges was standing over to the left and almost directly in front of me and she shook her finger at Sarah, she said, "I told you to behave yourself," and Sarah says, "Ain't no damned son-of-a-bitch going to push me around." On the same day during break Driver approached Anderson and asked if she could see Schwartz. Schwartz was telephoning so Driver gave this message to Anderson for transmittal to Schwartz: "I think since there are accusations and threats being made that all the accusations and threats that are made should be brought out into the open or either they should all be hushed and stopped, unless everybody was going to be tried. I could not see any reason why just one should be tried." Whereupon Anderson asked her what she meant. She replied, "Well, on several occasions I have heard Sarah Parker make a threat in actual words as she was going to slap the shit out of someone.... And she would stomp the shit out of Sheila [sic] Graham as well as several others." Eudine Miley23 also witnessed the Parker incident but was not interviewed by Schwartz. Miley testified that several employees were standing in the smoking room which is adjacent to the bathroom, the door to which opens toward the smoking room. Parker was standing behind the bathroom door next to the wall. Miley was standing next to her. "Sarah Graham started in there to the bathroom which she could not help bumping her with the door. She opened the door and just bumped her." Parker jerked the door backwards and then slammed it back against Graham. Edna Hodges shook her finger24 at Parker and said, "I told you to behave." The door "barely bumped" Parker. Betty Cail, a supervisor, was standing about 6 feet from Parker. Miley testified that it was not unusual for employees who were standing against the wall to be bumped by the door. Anderson's first knowledge of the Mitchum in- cident was between 9 and 9:30 a.m. on April 17. The Parker incident was reported to her on the same day. Anderson made no recommendations as to what discipline, if any, should be administered to Graham. Shortly after Graham's discharge Woods was called into the office. Schwartz said to her that the button she was wearing was "distracting the production girls from making production." He said that he would like to have her remove it. She questioned, "What if I don't?" He replied, "I will take further steps." She replied, "Well, I will take it off now but I have got small ones." Schwartz said that he wouldn't mind her wearing one about an inch in diameter but not that "Mickey Mouse look- ing thing." Woods took the button off and put it in her pocketbook and said, "What it represents is what I stand for." Whereupon she was directed to go back to work.25 " Miley left the employ of the Respondent about 6 weeks prior to August 26,1969. 24 Hodges testified that she pointed her finger and said , "Just leave it go" and that Rudolph said, "What 's that all about " The Trial Examiner con- siders Miley to be a credible witness even though he has considered and weighed in this regard the Respondent's proffered evidence reported at pages 579 and 580 of the transcript !S Schwartz testified, "I don't verbatim exactly what I said but I can say without question that I said very nicely to Flora Woods that I would like her to remove that conspicuous button, it is objectionable, and that she could feel free to wear a Union button of normal size, a small button if she has it, to feel free to put it on " Schwartz also testified that several employees mentioned that they found the button "objectionable," and that he told Woods that "it was objectionable and asked her to please remove it." 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the same day, April 17, Schwartz addressed' the employees. He called attention to the "bick- ering" among the girls. He said that he would not have "this kind of stuff" in the plant; "the union girls cannot say things about the nonunion girls, and the nonunion girls cannot talk about the union girls." He informed the employees that he had "already let one girl go today bacause she was a troublemaker." He noted that she was active in the Union and had signed a union card.26 He further asserted he would "not pay anyone [he] fire[d]" backpay. He referred to a plant he operated in Tennessee where a ghost town now ex- ists because of the union. "' He said that the papers there printed that he had paid $5,000 in backpay to the girls but that that was a "damn" lie. He said that he had never paid any of the girls backpay and would "not start now." He said he wanted to hurry the election up so that he could "get rid of this cancer once and for all."' He predicted that the Respondent was going to win the election "hands down." He further observed, "No one is going to make my right hand sign a damn thing.29 I will close my doors if a union come in here.30 Wait until the verdict is over. You have heard about hanging a man from the highest tree, wait for six months then hang him. After this cancer is gone once and for all then I am going to take action. "31 He ended his re- marks by saying, "As you all know this is the only contractor shop in Savannah, Ga. or the only one within sixty miles of here. The other shops manu- facture but not me. So if a damn union come[s] in here the contract[or]s will pull everything out."32 On April 21 Schwartz again addressed his em- ployees. Among other things he said, "You know two of the union pros are wearing aprons. They are right pretty if I do have to say so. Much better than the others things they wore. I want you to know we have some low down loud mouth bettle [sic] brain union pros in here. I want you to know as I have said before no dam[n] union is coming in this plant. I will not pay no 9 per cent to no health and welfare benefits. If I have anything to give I will give it to you girls not to no damn union. My lawyer advised me not to make no comments but I will tell you this. You union pros don't know how dirty I can be but when this election is over I will hold my court. Then you will all see. I have a bargain but you will know about it later." Schwartz again addressed his employees on May 5. In this speech he discussed the election which was to be held on May 9, 1969. Among other things he said, "I want every one of you to vote as you please but if you vote the Union in I will close the doors of this plant. You will have no work because the contractors will pull all of their work out. As you know we have already lost Miss Wendy. The others are standing by waiting. They cannot afford to pay union prices. These doors will be closed because I have never operated under union and I never will. I do not stand here and tell lies as the damn union men do. I do not run no sweat shop here so we do not need no union." He reiterated, "I will say again no one is going to make my right hand sign a damn thing." On May 6, he again called the employees together in a captive group. He indicated that the speech was for the purpose of answering certain questions which had been propounded to him. He said that he would say again that he would not "operate this plant under no damn union." He further said that "if the union went into the plant and the doors were shut it would hurt the City of Savannah." He further observed that the employees did not "need a union in here. Everybody [was] getting fair treatment . Everybody [was] being treated alike." He further told the employees, "I want to kill this cancer once and for all with a big victory against the union." He said that Friday would tell the story whether there would be any work. He observed that "he would deal with the union pros after Friday. They would get to know him in person. He would hold his court later." He further observed, "I will never sign no I.L.G.W.U. contract. I can tell you that for sure." On May 7 Schwartz again addressed his em- ployees. In this address he noted that he had called the employees together to answer questions which they had been asking about the election. He said that someone had asked him if he would close his doors if the Union came in the plant. He asserted that he had not said that he would close his doors but he had said, "My contractors would close them because they would pull their work out." He further said that he would do his "surgery" after the election was over. He said that "the girls who work for me would never pay their hard earned money to no union," or that the union would ride a "gravy train on the backs of these employees in this plant." He stated that he did not like the Union because it was no good; it did not help the em- ployees and never would. He reiterated that he 26 Driver testified that Schwartz said that "he had discharged an em- ployee for one thing because she was causing trouble She had admitted that her only intention in coming back into the plant to work was to work with the union and cause dissension and trouble in the plant " z! Mable Small testified that Schwartz told employees " about a plant he had in Tennessee which was closed because of the union" and that he had "fired people before and would not pay them any money for the time they missed " Schwartz admitted the remark Schwartz testified he told employees that "nobody has to sign anything .can't be forced to sign anything they don't want to sign . . m Mable Small testified that Schwartz told employees that "if the union wins the election the doors would be closed because he had never operated under a union and never would " 'i Driver remembered that Schwartz had said that "he would have his own trial when everything cooled down and quieted down and he would try each and everyone and they would have their day in court." Mable Small testified that Schwartz said he would "wait until this thing is over and then he would have his own trial " a Edna Hodges testified that Schwartz said that "the plant would close, not from his doings but by his customers pulling out, which he had lost t'wo or three already " According to Hodges, Schwartz gave the names and addresses of these customers . Hodges further testified that Schwartz said than "if it was union, he could not get orders .. from anyone " THE LORAY CORP. would never sign a "I.L.G.W.U." contract. Said he, "I never have and never will." He urged the people to vote no and "keep Loray." On May 8 Schwartz again called the employees together. He advised the employees there would be no election in the plant the next day and that the Union had called it off. He said that he would tell the employees why. He said , " I will tell you- because they knew they had lost that is the reason. I told you all along that was the way the union worked. They would get you all hoped [sic] up and then fizzle out. They knew if they held the election they would lose and they could never live that down so they just called it off . I want you to know that I am real pleased . I am going on a trip real soon and get this work going for the rest of the year. We will roll it 1, 2, 3, now that the union is over with. As you know we still have a spark fire for the union here in the plant but that is all. Everybody is going to have to abide by my regula- tions." On May 9 he spoke to the girls again. He said that he wanted the employees to know there were still a few in the plant who thought there would be an election . He observed that as far as he was con- cerned and for the rest of the employees , the Union was gone . He referred to one employee who when he finished talking ran off and licked her wounds. Schwartz recalled that , as he told the employees be- fore, the contractors would give them plenty of work now that the Union was out . He said he would repeat what he said yesterday: "the reason the Union called off the election was because they knew they had already lost the election ." He said that he had "a good plan worked out" for the em- ployees which he would give to them in the next 2 weeks. He noted that the Union had charges against him of which he would take care. He said that he "might even go to the Supreme Court with this." Flora Woods, a known union activist, received the following letter from Schwartz on June 17: We wish to advise that due to your extended absenteeism , we can no longer hold a machine for you. We will be glad to reconsider our position should your health permit you to return at some later date . Please contact Mrs. Anderson before returning to the factory. Woods had been absent 9 days during the month of June . Prior to June 17, the last day Woods worked was June 11. On May 19 Woods called the employer and ad- vised it that she was going to the doctor. On May 20 she called the employer again and advised it that she did not visit the doctor on May 19 but that she was seeing the doctor that day. The doctor in- formed Woods that she had an infection and could not work the remainder of the week. He took a cancer smear . Woods informed the employer. 571 On Friday Woods reported to Plant Manager An- derson that the doctor had received the report from the lab and wanted to see her . Anderson suggested that after Woods visited the doctor she should let her know "what it's all about." On Saturday morn- ing Woods informed Anderson that the cancer test was positive . Woods was referred to a gynecologist whom she visited on Monday . She advised the em- ployer. She told Anderson that the doctor had given her medicine "to try to burn the cancer cell" and that he "wanted [her] to stay off work the rest of that week and see how it done ." Anderson responded , "O.K. I heard the medicine will do good." On Monday, June 2, Woods was troubled with bronchitis. The employer was informed that she was going back to the doctor. The doctor advised no work for the remainder of the week. Woods returned to work on June 9. On June 11 Woods sat under an air conditioner and the bronchitis recurred. She was absent June 12 and 13 . She informed the employer of her dis- tress. On June 16 and 17 she was again absent. Spasms occurred in her back. She informed the em- ployer as well as noting that Anderson knew she was visiting the doctor for a test on June 17. On June 17 the doctor advised Woods that the medicine got "rid of that cancer cell." He also said that the "medicine shrunk the muscles so fast that it caused muscle spasms." He told her she could return to work the following Monday, June 23. Woods has not been ill since. Woods submitted to Anderson a disability cer- tificate from Dr . William H. Lippitt dated June 17, 1969, certifying that Woods had been under his professional care and was totally incapacitated and "may return to work on Monday, June 23, 1969." There is no credible evidence in the record which supports a finding that Woods was not physically able to work on and after June 23. After Woods received Schwartz ' letter of June 17, she telephoned Anderson and asked her what the letter meant . Anderson replied that she could not hold the machine for her because she was "out a lot sick." Woods said that she was able to return to work. Anderson responded , "Check back with me later." On Monday Woods appeared at the plant with Dr. Lippitt's certificate. Anderson's response was, "You'll just have to check with me later." She did not answer Woods' question as to whether she was fired. She said, "I just don't have a machine for you.,, On June 25 Woods wrote the employer in part: This is to advise you of my desire and physi- cal fitness to return to work full time. Mrs. Anderson has seen my doctors release certificate allowing me to return . I have seen your ad in the paper for help and know too that you are busy and have the work. Since I called in with regularity and you were kept appraised of my situation , I don't 572 DECISIONS OF NATIONAL understand your reluctance to permit me to return. Schwartz replied on June 28: Your letter of June 25 received, and I am sur- prised at your request since you know that your absentee record could no longer be ac- ceptable. The following is a breakdown of your attendance record for 1969: Working Days Month Days Out Jan. 24 Feb. 20 Mar. 21 April 22 May 22 Till June 17 12 121 15 10 8 4 16 9 62 33/ I have omitted Saturdays and Sundays from the above months which clearly shows you were out more than fifty (50) per cent of the possi- ble working days during that period. It is because of your past unacceptable absen- tee record that I could no longer consider you for employment. On July 16 Woods again contacted Anderson who told her she "wasn't hiring anybody that week and she probably wouldn't hire anybody the next week." Woods reminded her that she had seen an advertisement in the paper and "knew they were wanting workers." Woods had never been warned that her absences were excessive. Schwartz acknowledged that Woods was a productive employee, "one of our better ones without question. . . ." Schwartz ad- mitted that during the period after Woods' discharge the Respondent was in need of serging machine operators, the job performed by Woods. In fact, employees were hired to fill serging machine operator jobs. Schwartz' reason for not reemploying Woods was expressed by him as follows: THE WITNESS: I'm saying to you at this par- ticular time that I regard Flora Woods as someone who is not trying to find a job or keep a job with the Loray Corporation and has pur- posely gone out of her way or her doctors are liars. If the doctors have stated she is physically " According to Woods' absentee record (G.C Exh 33B) she was absent 47 times rather than 62 times. Fourteen absences were for lack of work, January 15 , 23 to 31, inclusive, February 3 to 7, inclusive, and May 16, at least 15 of the absences were due to Woods' cancer problem '' Schwartz' testimony borders on the galimatias. LABOR RELATIONS BOARD able to go to work, and I am going back for at least I would say three or four months-I mean three or four notes covers a good month period I imagine-and they say three days later she is going to be able to go to work and then we would get a call from her for one reason or another. I will accept the fact that everything she says is true if that be the case. Whatever it is, we can't count upon her to come to work. Now, another thing that puzzles me, frankly speaking, is this. On the occasions of the other girls who were off for three or four weeks, such as the sickness of her son, or the surgical operation, we know at once. We accept it and know they are going to be off for three weeks or so. We are not happy with it but we know and it is a one parea [sic] period. Why, she kept calling us every day. I don't know if it was ex- actly every day but I do know this, though, that it was-she would call on several occasions and state that she was going to be in at such and such a time and on one particular occasion she never called and did not show up.3' Schwartz' lenient leave policy is depicted in the testimony of Leasie Bragg: I worked for Mr. Schwartz when he was in Allendale and I lost my little daughter and I stayed off of work for eight months and he took me back and never asked me no questions. The year before last I got sick. I stayed off from February until December and when I went back to work my card was right there and I clocked in and went to work and he didn't ask me no questions. Bragg indicated that she was absent many times because of the condition of her 85-year-old mother. Anderson said that "it was all right because she knows Mama's condition." B. Conclusions and Reasons Therefor First: The Coercive Character of Schwartz' Speeches In the light of the entire record and in the con- text used the Trial Examiner finds that: 1. The Respondent, by Schwartz' remarks to em- ployees on February 26 that he knew all who had signed Union cards, created an impression of sur- veillance, violative of Section 8(a)(1) of the Act.' 2. The Respondent, by Schwartz' remarks to em- ployees on February 26, to wit: "This is a nonunion plant and it is going to stay a nonunion plant" and " "[T]he law reasons that when the employer either engages in surveil- lance or takes steps leading his employees to think it is going on, they are under the threat of economic coercion , retaliation, etc " Hendrix Mfg Co v NLRB., 321 F 2d 100, 104-105 (C.A 5) See also N L.R.B. v. Ralph Printing and Lithographing Company, 379 F 2d 687, 691 (C A. 8) THE LORAY CORP. 573 "I can tell you now there is to be no union in this plant next Tues., Wed., Thursday, or Friday"; on March 6, to wit: " no damn union is coming into this plant now or ever"; on March 11 , to wit: "no dam[n ] union is going to be in this plant"; on March 26 , to wit : that "no damn union was going to be in his plant," that "he never had been union and he damn sure was not going union now," " I will never pay no health and welfare benefits into no damn union," "we have no need for a union," and that "no damn union is to be in his shop , but if one did come in he would not talk to anyone. They could write up their grievances but he would not talk to anyone "; on April 15, to wit: "no damn union is going to come in this plant," "We don't need no damn union in here," "no damn body can make my right hand sign a damn thing," " I will never pay health and welfare benefits to no damn union" and "if the union comes in we will not have a damn thing"; on April 17, to wit : "No one is going to make my right hand sign a damn thing"; on April 21 , to wit: "no dam [n] union is coming in this plant"; on May 5, to wit : "We do not need a union," "No one is going to make my right hand sign a damn thing "; on May 6, to wit: that the em- ployees did not "need a union in here" and "I will never sign no I.L.G.W.U. contract"; on May 7, to wit: that the Respondent would never sign an I.L.G.W.U. contract, conveyed to the employees the futility of self-organization, and thereby the Respondent interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act.' 3. The Respondent , by Schwartz' remarks ad- dressed to employees on Febeuary 26, that there would be no talking about the Union in the bathroom, in the context used, imposed an invalid restriction on employees' rights of solicitation and, thereby, interfered with , restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 4. The Respondent, by Schwartz' remarks ad- dressed to employees on March 6 , to wit: "I can fire anybody anytime not for union but for 44 other reasons," strongly implied that it would seize upon reasons other than union activity as pretexts for the discharge of union partisans and thereby interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 5. The Respondent , By Schwartz' remarks ad- dressed to employees on March 11 , the day follow- ing the discharge of Rene Clark, a known union partisan, to wit: "I want you to know that there are less people in here today than was in here yesterday and there is going to be less everyday," represented to employees that the jobs of union partisans were in jeopardy and, thereby, interfered with, restrained, and coerced employees in rights guaran- teed by Section 7 of the Act. 6. The Respondent, by Schwartz' remarks ad- dressed to employees on March 11, to wit: "I will also say there will be no more handing of papers at this plant. The police will be out here everyday to arrest anyone that takes part in handing out union papers," imposed an invalid restriction on em- ployees' rights of solicitation and, thereby, inter- fered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 7. The Respondent, by Schwartz' admitted re- mark that he "would be willing to give $25 to the first card that ever came back [from the union]," offered a benefit to employees for retrieving their union authorization cards and, thereby, interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 8. The Respondent, by Schwartz' unsupported and false remark addressed to employees on March 26 that he had "lost a few of his contracts because they had heard there was going to be a union in his shop, and they could not afford union prices," in- terfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 9. The Respondent, by Schwartz' admitted and unproved remarks addressed to employees that, if the Respondent was a union shop, the nonunion customers would "pull their work out immediately" and that in all probability the Respondent would be without work and "because of that the factory would close in all probability," interfered with, restrained, and coerced employees in rights guaran- teed by Section 7 of the Act 37 10. The Respondent, by Schwartz' remarks ad- dressed to employees on April 17 that he had discharged an employee who was active in the Union "because she was a trouble maker," inter- fered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 11. The Respondent, by Schwartz' remarks ad- dressed to employees on April 17 that a plant which he operated in Tennessee was closed because of the union, impressed employees with the idea that the same result would transpire if the Union ' See N.L.R.B. v Bailey Co, 180 F 2d 278, 279 (C A 6), The Deutsch Company, Metal Components Division , 178 NLRB 616, Brandenburg Telephone Co, 164 NLRB 825, enfd 408 F 2d 377 (C A 6), Trane Co, 137 NLRB 1506, 1510 In the case of N L.R.B. v Patent Trader, Inc, 415 F.2d 190, 198-199 (C A. 2), the court said. At the meeting of January 31, 1966, president Tucker told several of the pressroom employees that he "didn 't have to sign a contract at all" and that "nobody could force him to sign one " In the context of Tucker's other communications to the employees, these statements operated as a violation of the Act by conveying to employees the futili- ty of self-organization. "If there is any implication that an employer may or may not take ac- tion solely on his own initiative for reasons unrelated to economic necessi- ties and known only to hun, the statement is no longer a reasonable predic- tion based on available facts but a threat of retaliation based on misrepresentation and coercion , and as such without the protection of the First Amendment.. . 'conveyance of the employer's belief , even though sincere , that unionization will or may result in the closing of the plant is not a statement of fact unless , which is most improbable, the eventuality of closing is capable of proof ' 397 F 2d 157, 160 . ." N.L.R B. v Cassel Packing Co., 395 U S. 575, 618-619, see also International Union of Electri- cal, Radio and Machine Workers, AFL-CIO v N L R.B , 289 F 2d 757, 763 (C A.D C ), cf. The Aire-Flo Corporation, 167 NLRB 679, see also Water- ways Harbor Investment Company, Inc , 179 NLRB 452, fn 5 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come in the Respondent's plant and, thereby, inter- fered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 12. The Respondent, by Schwartz' remarks ad- dressed to employees on April 17, to wit: "I will close my doors if a union came in here," interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 13. The Respondent, by Schwartz' remarks ad- dressed to employees on April 17, to wit: "Wait until the verdict is over. You have heard about hanging a man from the highest tree, wait for six months then hang him. After this cancer is gone once and for all then I am going to take action," implied that once the union campaign was con- cluded it would take reprisals against its employees and, thereby, interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 14. The Respondent, by Schwartz' unsupported remarks addressed to employees on April 17, to wit: "So if a damn union come[s] in here the con- tract[or]s will pull everything out," interfered with, restrained, and coerced employees in rights guaran- teed by Section 7 of the Act. 15. The Respondent, by Schwartz' remarks ad- dressed to employees on April 21, to wit: "I will tell you this you union pros don't know how dirty I can be but when this election is over I will hold my court, then you will all see," represented to em- ployees that upon the conclusion of the election it would visit reprisals upon employees and, thereby, interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 16. The Respondent, by Schwartz' remarks ad- dressed to employees on April 21, to wit: "I have a bargain but you will know about it later," in the context used, implied a promise of a benefit and, thereby, interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 17. The Respondent, by Schwartz' remarks ad- dressed to employees on May 5, to wit: "[I]f you vote the union in I will close the doors of this plant" and "These doors will be closed because I have never operated under union and never will," interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act.38 18. The Respondent, by Schwartz' remarks ad- dressed to employees on May 6, that he would not "operate this plant under no damn union," inter- fered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 19. The Respondent, by Schwartz' remarks ad- dressed to employees on May 6, that Friday would tell the story whether there would be any work, in- terfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 20. The Respondent, by Schwartz' remarks ad- dressed to employees on May 6, that he would "deal with the union pros after Friday. . . He would hold his court later," impressed employees with the idea that reprisals would be visited on union partisans after the election and, thereby, interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 21. The Respondent, by Schwartz' remarks ad- dressed to employees on May 7 in which he urged employees to vote no and "keep Loray," implied that if the Union came in the plant would be closed and, thereby, interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act. 22. The Respondent, by Schwartz' remarks ad- dressed to employees on May 9, that he had a good plan worked out for the employees which he would give to them within 2 weeks, implied a promise of a benefit and, thereby, interfered with, restrained, and coerced employees in rights guaranteed by Sec- tion 7 of the Act. 23. The Respondent, by Schwartz' admitted re- marks addressed to employees, to wit: "I did say if they signed they gave away their right to ever bar- gain with me if the Union came in. I wanted to make sure they understood that if the Union got enough signature cards that they would then give up their right to bargain with me and would have no right to discuss any factory problems any more with me if they signed that card and the Union represented them, that I told them," interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act.39 Second: The Discharge of Rene Clark ` .. an employer may hire and discharge at will, so long as his action is not based on opposition to union activities." N.L.R.B. v. Little Rock Downtowner, Inc., 341 F.2d 1020, 1021 (C.A. 8). However, the "mere existence of valid ground for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds , and not by a desire to discourage union activity." N.L.R.B. v. Symons Manufacturing Company, 328 F.2d 835, a "Threats, such as to move the plant or close it if the union won in the course of an organizational campaign constitute interference and restraint within the scope of § 8(a)( I) " Marshfield Steel Company v N.L.R.B., 324 F 2d 333, 336 (C.A. 8), Holly Hill Lumber Co, 380 F.2d 838, 841 (C.A. 4), N L R.B v Murry Ohio Manufacturing Ca, 328 F.2d 613 (C.A 6). 'See N.L.R.B v. Vinylex Corp., 404 F.2d 1200, 1201 (C.A 6) The court stated "The letter further stated , contrary to the provisions of Sec- tion 9 of the Act, that in the event of unionization , the employees ` would be unable to talk personally with management about any of our problems."' The court found this a violation of Section 8(a)( I) See also Brandenburg Telephone Co., supra, Graber Manufacturing Company, Inc, 158 NLRB 244,246; Henryl Siegel Co , Inc. v. N L.R B., 417 F.2d 1206 (C.A. 6). THE LORAY CORP. 837 (C.A. 7).40 "A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." N.L.R.B. v. Solo Cup Co., 237 F.2d 521, 525 (C.A. 8). "... the `real motive' of the em- ployer in an alleged § 8(a)(3) violation is decisive. . " N.L.R.B. v. Brown Food Store, 380 U.S. 278, 287. "It is the `true purpose' or `real motive' in hir- ing or firing that constitutes the test." Local 357, International Brotherhood of Teamsters [Los An- geles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667, 675. "Section 8(a)(3) prohibits discrimination in re- gard to tenure or other conditions of employment to discourage union membership. ... It has long been established that a finding of violation under this section will normally turn on the employer's motivation." American Ship Building Co. v. N.L.R.B., 380 U.S. 300, 311. However, a "wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership," are permitted under Section 8(a)(3) as "essential if due protection is to be accorded the employer's right to manage his enterprise." Id. at 311. But "there are some practices which are inherently so prejudicial to union interests and so devoid of sig- nificant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required. In some cases, it may be that the employer's conduct carries with it an inference of unlawful intention so com- pelling that it is justifiable to disbelieve the em- ployer's protestations of innocent purpose." Id. at 311-312. The discharge of Clark directly related to the dis- tribution of union leaflets was "inherently so preju- dicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other an- tiunion animus is required." The discharge of Clark, as machinated by the Respondent, was the kind of conduct which carried with it unavoidable consequences which the employer must not only have foreseen but which it must have intended. Thus such conduct bears its own indicia of intent. Cf. Erie Register Corp. v. N.L.R.B., 373 U.S. 221.41 e The principle was well stated by the Court of Appeals for the Second Circuit in N LR B v Great Eastern Color Lithographic Corp, 309 F 2d 352, 355, enfg 133 NLRB 9I 1. The issue before us is not, of course, whether or not there existed grounds for discharge of these employees apart from their union ac- tivities The fact that the employer had ample reason for discharging them is of no moment It was free to discharge them for any reason good or bad, so long as it did not discharge them for their union activi- ty. And even though the discharges may have been based upon other reasons as well, if the employer was partly motivated by union activity, the discharges were violative of the Act 41 " an employer's protestation that he did not intend to encourage or discourage must be unavailing where a natural consequence of his action was such encouragement or discouragement . Concluding that encourage- ment or discouragement will result, it is presumed that he intended such consequence In such circumstances intent to encourage is sufficiently 575 Signal Oil and Gas Company v. N.L.R.B., 390 F.2d 338 (C.A. 9). The sole foreseeable result of the discharge of Clark following upon the heels of her distribution of union leaflets at the employer's premises was to "discourage membership in any labor organization" and to dissuade employees from distributing union leaflets.42 Any other conclu- sion would be at odds with the realities of the in- dustrial world and in opposition to sound reason. Thus the employer's conduct must be deemed to have been "inherently destructive of important em- ployee rights" and an unfair labor practice may be found "even if the employer introduces evidence that the conduct was motivated by business con- siderations." N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26. Indeed a clearer manifestation of an employer's intent to discourage union activity is sel- dom observed.93 The facts bear out these conclusions. At the threshold of the Union 's organizational campaign, Schwartz commenced his antiunion campaign, utilizing, as tactics , the commission of unfair labor practices. He warned employees that there would be no union in the plant and 2 working days before Clark's discharge threatened employees that he could fire any employee at any time "not for union but for 44 other reasons." On the next working day after Clark participated in distributing handbills at the plant, Clark was summarily discharged. Her abrupt discharge on the next working day after she distributed union handbills coupled with Schwartz' statements on the next day that there were "less people in here today than was in here yesterday," "the police will be out here everyday to arrest any- one that takes part in handing out union papers" and that there would be no union in the plant could not have been reasonably read by the employees otherwise than that Clark's discharge was triggered by her union affection and her temerity in distribut- ing union handbills and that her discharge stood as a warning to other employees that they would be treated likewise if they persisted in engaging in union activity.44 In that it must be presumed that the employer intended this result, since no other result is reasonably foreseeable under the circum- stances, motive to discourage union membership must follow. Thus, in that the employer committed established " The Radio Officers' Union of the Commercial Telegraphers Union,AFLv.NLRB, 347US 17,45 u That the Respondent intended this result is implicit in Schwartz ' threat the next day that "the police will be out here everyday to arrest anyone that takes part in handing out union papers." " "It would indeed be the unusual case in which the link between the discharge and the union activity could be supplied exclusively by direct evidence intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial evidence." N L R B v Melrose Processing Co., 351 F 2d 693,698 (C.A 8). 4' As was stated in N L.R B v Jamestown Sterling Corp., 211 F 2d 725 (CA 2) [T]he unexplained coincidence of time with respect to the principal events was really no coincidence at all, but rather part of a deliberate effort by the management to scotch the lawful measures of the em- ployees before they had progressed too far toward fruition 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acts inherently prejudicial to employee interests, the reasonable and foreseeable consequences of which were to discourage employees' membership in a labor organization, the Respondent's "real mo- tive" must be deemed unlawful and the discharge of Clark a violation of Section 8(a)(1) and (3) of the Act. Since the Respondent's motive was clearly unlawful, its asserted reasons for the discharge of Clark become immaterial for the mere existence of an alternate ground for action taken is no defense where, as here, the employer's actual motivation is based on unlawful discrimination. Webster Wood In- dustries, Inc., 169 NLRB 67. ". . . the existence of a proper reason for a discharge is no defense if the discharge was actually made for an improper pur- pose." The John Klann Moving and Trucking Co., 411 F.2d 261, 263 (C.A. 6). Third: The Arrest of Union Representative Leste In that the Respondent has produced no credible proof that the arrest of Union Representative Leste for attempting to distribute handbills was in viola- tion of the law or constituted interference with the employer in the operation of its business, the arrest was violative of employee rights protected by the Act. Aldora Mills, 79 NLRB 1, enfd. 180 F.2d 580 (C.A. 5). The language of Trial Examiner Alba B. Martin in the case of Priced-Less Discount Foods, Inc. d/b/a Payless, 162 NLRB 872, 876, is equally applicable here: Under the circumstances ... causing him [a union organizer] to be arrested in the presence of employees, because he was soliciting on the parking lot, was violative of employee rights protected by the Act. In all probability Respondent's actions were viewed by em- ployees as an indication of the dangers and ob- stacles awaiting them should they in the future show any interest in the Union. It is a reasona- ble inference that the normal effect of Respon- dent's conduct was to cause its employees to weigh the possibility of incurring reprisals or other hostile employer action before undertak- ing to exercise their rights secured by the Act. Threatening and having the union organizer ar- rested displayed to the employees Respon- dent's bitter opposition to the Union and the extent of the measures it would resort to in re- sisting it. By causing the arrest of Union Representative Leste on March 7 for attempting to distribute hand- bills in the vicinity of the Respondent's plant the Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. Fourth: The "Standout" and the Request for Recognition The General Counsel pleads that the employees, who on March 12, after "standing out" entered the employer's plant and presented a demand for recognition, were laid off for the remainder of the day "because of their membership in, and activities on behalf of the Union and because they engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection." Whether employees engage in a "walkout'15 or a "walkup"46 which is not forbid- den by a valid subsisting collective-bargaining agreement or plant rule it is protected activity within the meaning of Section 7 of the Act; a for- tiori a "walkout" or a "walkup" of employees in a group in demand of union recognition is protected activity. The employees' "standout" on March 12 was protected activity; the "walkup" on March 12 was likewise protected activity. Thus Schwartz' response to the "walkup," i.e., dismissal for the day of those who engaged in the "walkup," if it tended to discourage employees' membership in a labor organization was in violation of Section 8(a)(1) and (3) of the Act. Under the circumstances herein and in view of the employer's failure to justify its action by a credible explanation the Trial Examiner finds that the Respondent's dismissal of the subject employees for the remainder of the March 12 workday discouraged employees' membership in a union and employees, union activity (which the Trial Examiner finds to have been the employer's motive), and, thereby, the Respondent violated Section 8(a)(1) and (3) of the Act. In this regard it is significant that on the morning in question the Respondent needed the employees dismissed.' Indeed, as a justification for its action, the Respondent came forward with no credible valid explanation as to why these employees were not utilized according to the Company's need. Furthermore Schwartz' action in this regard may not be disassociated form his zest to drive the Union from the plant, which up to that point in- cluded coercive speeches, a wrongful discharge, and an illegal arrest of a union handbiller. Fifth: The Discharge of Sara Helen Graham As in the case of Rene Clark, Schwartz timed the discharge of Sara Helen Graham so that the natural and probable consequence of her discharge would discourage membership in a labor organization. The time chosen for the discharge was immediately after Graham appeared in the plant wearing a union button and shortly after Schwartz boasted to ern- 15 In Electromec Design and Development Company, Inc , 168 NLRB 763, the Board found that a "walkout , being in quest of improved terms and conditions of employment , was protected concerted activity within the in- tendment of Section 7 of the Act " 06 " that the employees suddenly dropped their tools and insisted upon presenting their gretvances during working hours does not detract from the lawfulness of their conduct " N L R B v Kennametal, Inc, 182 F2d817,819-820(C.A 3) THE LORAY CORP. 577 ployees (in reference to his operation of a Tennes- see plant in which a union had appeared), "I have fired people before and never hired anyone back or paid any money for being fired. I never have and never will." Thus the true motive for Graham's discharge at the time selected, immediately after Graham appeared wearing a union button, seems clear. Additionally, in that the natural and foreseea- ble consequences stemming from the discharge of Graham (in view of the Respondent's antipathy to the Union and the timing of the discharge) was the discouragement of union membership and the coer- cive deterrent to the exercise of employee rights to wear union buttons (see infra), the fact that the Respondent, notwithstanding, effected the discharge is an indicia of its true intent to cause the resulting discouragement of union membership and the wearing of union buttons. Moreover, the intent of the employer to gain this end was not left to em- ployee speculation for shortly after Graham's discharge Schwartz told the employees he had let go an employee active in the union "because she was a troublemaker."47 As in the case of Rene Clark '411 in that the Respondent committed acts in- herently prejudicial to employee interests, the reasonable and foreseeable consequences of which was to discourage membership in a labor organiza- tion, the Respondent's real motive must be deemed unlawful and the discharge of Graham in violation of Section 8(a)(1) and (3) of the Act. (See cita- tions supra.) Sixth: The Union Button Incident Involving Flora Mae Woods A naked rule prohibiting the wearing of union buttons or insignia is unlawful. Unless special cir- cumstances are present which justify the main- tenance of production and discipline, an employer may not require an employee to remove union in- signia while on the job or in the plant. Such a restriction collides with the employees' rights guaranteed by Section 7 of the Act. Serv-Air Inc., 161 NLRB 382, 416-417. Portage Plastics Com- pany, 163 NLRB 753, 759. Unless the size of the union button worn by an employee is related to the impairment of production or discipline, the size of the button is immaterial and the employer may not curtail the button's use as a union propaganda device. Serv-Air Inc., supra. In that the Respondent has presented no credible proof that the restriction placed upon Woods, i.e., the limitation of the size of the union button she was allowed to wear, was justified under the cir- cumstances, the Respondent, by imposing such limitation, interfered with, restrained, and coerced employees in rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. Seventh: The Discharge of Flora Mae Woods "... A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." Marshfield Steel Company v. N.L.R.B., 324 F.2d 333, 337 (C.A. 8). In this regard the Trial Ex- aminer is convinced that "the moving cause" or "real movtive" of the Respondent in discharging employee Woods was to discourage membership in a labor organization and to interfere with em- ployees' "right to self-organization and to form, join, or assist labor organizations." Controlling fac- tors in this regard are: (1) The strong union animus of the employer,49 (2) the Respondent's knowledge of Woods' strong union advocacy, (3) Woods' otherwise acceptable work record, (4) the Respon- dent's refusal to reconsider its "position should [Woods'] health permit [her] to return at some later date" as represented in its letter to Woods when Woods presented proof that she was physi- cally able to work,50 (5) the Respondent's vacilla- tion between June 17 and 25 as to whether Woods was actually discharged,51 (6) the unrealistic character of the Respondent's cited cause for Woods' discharge in that the unacceptability of her absentee record was based on 62 "days out" whereas her "Absentee Record" listed only 47 days out and whereas, of the days out charged against her, 11 absences were for lack of work and not at- tributable to her personal conduct, (7) the Respon- dent was in need of serging machine operators, Woods' classification, (8) Schwartz' weak explana- tion as to why he refused to reemploy Woods, (9) the Respondent's lenient leave policy, and (10) Schwartz' threats that he would deal with the union "pros" after the election .51 " In this regard it is noted that charges against Graham did not relate to her productivity or that of others Her alleged offenses occurred at break- time and on the way to the timeclock ' Pertinent here is the observation of Judge Prettyman, speaking for the court in E Anthony & Sons, Inc v N L.R B , 163 F 2d 22, 26-27 (C A D C, 1947), cert denied 332 U S 773 All were discharged summarily, without preliminary warning , admoni- tion, or opportunity to change the act or practice complained of. Such action on the part of an employer is not natural If the employer had really been disturbed by the circumstances it assigned as reasons for these discharges, and had had no other circumstance in mind, some word of admonition, some caution that the offending laspe be not re- peated, or some opportunity for correction of the objectionable prac- tice, would be almost inevitable The summanness of the discharges of these employees, admittedly theretofore satisfactory, gives rise to a doubt as to the good faith of the assigned reasons. I" [Ejvery equivocal act that was done may be properly viewed in the light of respondent's animus toward the effort to organize its men " N.L. R B v Houston and North Texas Motor Freight Lines, Inc., 193 F.2d 394, 398 (C.A 5), cert denied 343 US 934 See Kline Iron and Steel Company, 178 NLRB 465 " During this period Anderson did not answer Woods' question whether she was fired Anderson's response was "Check back with me later." iS "When a . manager holding and expressing . . antiunion bias is involved directly in the decision whether to discharge an employee, the Board is entitled to conclude that this was a case of the threat made good Under these circumstances management cannot ignore the significance of such opportunity to carry out the discriminatory threats, or retreat to the innocence-no matter how genuine it might have been-of its nominal actor or spokesman." N.L.R B v Neuhoff Brothers Packers, Inc., 375 F 2d 372,374,376(CA 5) 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The discharge of Woods, the in-plant committee chairman, was the clincher which drew the final curtain on Schwartz' successful antiunion cam- paign. It doused the "spark fire from the Union" to which Schwartz referred as remaining after the Union withdrew from the election. Accordingly, the Trial Examiner concludes and finds that by refusing to reinstate Flora Mae Woods to her job on June 23, 1969, Respondent dis- criminated against her in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discharging Rene Clark on March 10, 1969, Sara Helen Graham on August 17, 1969, and refusing to reinstate Flora Mae Woods on June 23, 1969, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. By unlawfully laying off Flora Mae Woods, Opal Allen, Gladys Daniels, Mable Small, Shirley Mabley, Lucille Driver, Leasie Bragg, Mary James, Minnie Ruth Griffin, Louella Paul, Mary Etta Hol- land, Marjorie Covington, Agnes Forster, Mary Townsend, Betty Ann Jones, and Valeria Elders, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 7. All production and maintenance employees of the Loray Corporation at its Savannah, Georgia, plant excluding all office and clerical employees, guards and supervisors as defined in the Act con- stitute an appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act.' The Effect of the Unfair Labor Practices Upon Commerce The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE RECOMMENDED REMEDY It having been found that the Respondent has en- gaged in certain unfair labor practices, it is recom- mended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged Rene Clark and Sara Helen Graham, unlawfully refused to reinstate Flora Mae Woods, and unlawfully laid off Flora Mae Woods, Opal Allen, Gladys Daniels, Mable Small, Shirley Mabley, Lucille Driver, Leasie Bragg, Mary James, Minnie Ruth Griffin, Louella Paul, Mary Etta Holland, Marjorie Covington, Agnes Forster, Mary Townsend, Betty Ann Jones, and Valeria Elders and thereby violated Section 8(a)(1) and (3) of the Act, it is recommended that the Respondent remedy such unlawful conduct. It is recommended in accordance with Board policy' that the Respondent offer Rene Louise Clark, Sara Helen Graham, and Flora Mae Woods immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, by payment to them of a sum of money equal to the amount they would have earned from the date of their discriminatory discharges to the date of an offer of reinstatement, less net earnings, if any, during said period and make Flora Mae Woods, Opal Allen, Gladys Daniels, Mable Small, Shirley Mabley, Lucille Driver, Leasie Bragg, Mary James, Minnie Ruth Griffin, Louella Paul, Mary Etta Holland, Marjorie Covington, Agnes Forster, Mary Townsend, Betty Ann Jones, and Valeria El- ders whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment to them of a sum of money equal to the amount they would have earned on March 12, 1969, had they been permitted to work, all to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Com- pany, 90 NLRB 289, and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The Union "maintains that the Company should be required to bargain with it to redress unfair labor practices `so pervasive that, even in the absence of Section 8(a)(5) violation, a bargaining 53 This unit is the unit appearing in the stipulation upon consent election executed by the Respondent and the Union and approved by the Regional Director, Region 10, in Case l0-RC-7751, dated April 24, 1969 There having been offered no competent proof that this unit is an inappropriate unit, the Trial Examiner finds, as approved by the Regional Director, that the unit is an appropriate unit for the purposes of collective bargaining within the meaning of the Act ' ` See Rushton Company, 158 NLRB 1730, 1740. THE LORAY CORP. order would (be) necessary to repair the unlawful effect of those (practices).;"' Further contending the Union asserts, "The illegal conduct of Schwartz was so continuous, pervasive and ultimately effec- tive that the Union maintains that only a bargaining order remedy can effectively remedy the viola- tions. "5G The Trial Examiner is convinced that the claim of the Union has merit. Reliance is placed on the case of N.L.R.B. v. Gis- sel Packing Company, 395 U.S. 575, 613-614, wherein the Court said: While refusing to validate the general use of a bargaining order in reliance on cards, the Fourth Circuit nevertheless left open the possi- bility of imposing a bargaining order, without need of inquiry into majority status on the basis of cards or otherwise, in "exceptional" cases marked by "outrageous" and "perva- sive" unfair labor practices. Such an order would be an appropriate remedy for those practices, the court noted, if they are of "such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had." N.L.R.B. v. Logan Packing Co., 386 F.2d 562, 570 (C.A. 4th Cir. 1967); see also N.L.R.B. v. Heck's, Inc., 398 F.2d. 337, 338. The Board itself, we should add, has long had a similar policy of issuing a bargaining order , in the absence of a § 8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices. See, e.g., United Steelworkers of America v. N.L.R.B., .. . 376 F.2d 770 (C.A.D.C. Cir. 1967); J.C. Pen- ney Co., Inc. v. N.L.R.B., 384 F.2d 479, 485-486 (C.A. 10th Cir. 1967). It is stressed that a bargaining order is pertinent in the instant case "without need of inquiry into majority status on the basis of cards or otherwise." While the Union made a demand, claiming that it represented a majority of the employer's employees and the record discloses that employees did sign union authorization cards and that the employer engaged in unfair labor practices "so coercive that, even in the absence of a § 8(a)(5) violation, a bar- gaining order would have been necessary to repair the unlawful effect of those [unfair labor prac- tices]"" the Union's alleged majority was not tested by the submission of authenticated union authorization cards S6 But the question of "reasona- ble doubt" was put in issue by the submission of the Respondent's letter dated March 13, 1969, in S1 Bnefof Charging Party, p 1. 'e Brief of Charging Party, p. 3 " N.L R B v Gissel Packing Co , 395 U.S 575,615 ' Under the theory of the Union, of course, this was not necessary 19 "The Board's test for good-faith doubt . . is whether the employer has engaged in substantial unfair labor practices calculated to dissipate union support." The National Cash Register Company, 167 NLRB 1047; 579 which it asserted that "Loray Corporation has a reasonable doubt that the International Ladies Gar- ment Workers Union represents an uncoerced and valid majority of its employees for the purpose of collective bargaining." On the basis of the record and by reason of the employer's unfair labor prac- tices this doubt cannot be credited .59 Hence, under the circumstances of this case as revealed in the record as a whole, the employer by reason of its misconduct must be without standing to righteously resist a bargaining order on the ground that it har- bored a valid reasonable doubt as to the Union's majority status and, as far as the employer is con- cerned at this stage of the proceedings, proof of the Union's majority status is immaterial. Although, when confronted with a claimed card majority the employer may decline union recognition and either request and insist on an election or, file a petition himself under Section 9(c)(1)(B) of the Act, the employer in the instant case, bent on discouraging union affection, not only declined to inspect the cards proffered by its employees but marked its dis- pleasure at such effrontery by punishing them.60 By thus refusing to receive the cards, Schwartz by his own conduct deliberately prevented the Respon- dent from ascertaining whether the Union actually possessed authorization cards from a majority of the employees. He chose thereby to protect his al- leged ignorance on the subject which, if dispelled, might have caused the attachment of a bargaining obligation. Schwartz wanted no proof; he wanted no union . His rejection of the showing of cards was clearly in bad faith and in anticipation of a defense against a refusal-to-bargain charge. The Respondent capped its adamant rejection of the showing of cards by the further commission of unfair labor practices "so coercive that, even in the absence of a § 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of those [unfair labor practices]" by which it destroyed the possibility of resolving the majority status of the Union by a free election. By such misconduct the employer stopped potential union growth whereas it was its duty "to permit the Union to have a free opportunity to increase and retain its membership by legitimate organizational activity and to participate in a free and uncoerced election, which would determine whether or not it was the statutory representative .... "61 Under these cir- cumstances to permit an employer to raise the defense of lack of union majority as a bar to a bar- gaining order would "in effect be rewarding the employer and allowing him to profit from [his] own "Where unlawful conduct is aimed at and does undermine a union's majority, it is irrelevant that the employer may have a rational, albeit er- roneous, doubt of majority ... "General Stencils, Inc, 178 NLRB 108 "Where unlawful conduct is aimed at and does undermine a union's majority, it is irrelevant that the employer .. has a general distrust of cards " General Stencils, Inc, 178 NLRB 108. 11 International Broadcasting Corporation (KWKH), 99 NLRB 130, 133 427-835 0 - 74 - 38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wrongful refusal to bargain"' and other insidious unfair labor practices. In effectuating the policy of the Act it was not intended that such an uncon- scionable result should ever come to pass. Implicit natural justice and the rules of fair play, if for no other reasons, command a bargaining order as the realistic, feasible means of effectuating the policies of the Act. Moreover, the Board recognizes that "it may be assumed that an employer's unwillingness to par- ticipate in an election without engaging in unfair labor practices aimed at influencing that election indicates his fear that in the forthcoming election a majority of employees will vote for union represen- tation." General Stencils, Inc., 178 NLRB 108. By reason of the exigencies herein and the stat- ute's clear intent that its policies be effectuated, one of which is to encourage "the _practice and procedure of collective bargaining" (which was deliberately frustrated by the employer), proof of the Union's majority status by the Union's assertion thereof,' in light of the employer's lack of good- faith doubt and its blatant unfair labor practices, ought to be deemed sufficient to satisfy at least a prima facie showing of majority status, which if un- rebutted will sustain a bargaining order.' But, since the Supreme Court teaches that a bargaining order may be imposed "without need of inquiry into majority status" in "`exceptional' cases marked by `outrageous' and `pervasive' unfair labor practices" (N.L.R.B. v. Gissel Packing Co., supra), the threshold question in any case in which a bargain- ing order is sought is whether the unfair labor prac- tices found are of an "outrageous" and "pervasive" character. If an affirmative finding is made on this point a bargaining order may be imposed without further inquiry. "Pervasive" has been defined as "diffused throughout every part of. "" Here the Respondent commenced its campaign at the very advent of the Union and throughout the Union's organizational campaign it resorted to almost daily unfair labor practices sedulously pursued, by which it caused a frigorific effect on its employees' union affection. The employer's unfair labor practices ceased only when it finally fired the in-plant chairman of the Union's organizing committee. The Trial Examiner is convinced that the Respondent's unfair labor practices were "pervasive." "Outrageous" implies exceeding the limits of what is bearable or endurable."' By at least 12 cap- tive audience speeches Schwartz conveyed to em- ployees no less than 20 times the futility of self-or- ganization, threatened to fire employees for union activity, threatened to cause the arrest of em- ployees who distributed union leaflets, threatened to close the plant if the Union were successful,"6 threatened employees with reprisals after the elec- tion was concluded, threatened never to operate under a union, threatened never to sign a contract with a union or talk to it, and promised benefits and interfered with employees' solicitation rights. In this coercive atmosphere caused by these remarks the employer fired Rene Clark, one of the first union handbillers, a black member of the Union's organiz- ing committee; Sara Graham, one of the first union button wearers, a white69 union partisan; and Flora Mae Woods, the in-plant chairman of the Union's organizational committee.70 In addition Schwartz laid off 16 employees who sought to hand him union authorization cards. Even more devices were employed to chill union affection. A union representative was wrongfully jailed for attempting to pass handbills in the vicinity of the plant, at " See N L.R.B. v Gissel Packing co, supra The Board has said, where an employer has embarked upon serious violations of the Act justifying a bargaining order even in the absence of a finding that the employer had violated Section 8(a)(5) of the Act, "To require the Union to submit to another election under these circumstances would be to permit Respon- dent to profit from its own unlawful conduct at the expense of the Union and the majority of the Respondent's employees (Emphasis supplied.]" Northwest Engineering Company, 158 NLRB 624, 630, enfd 376 F.2d 770 (C.A D C ) =In Republic Steel Corporation v N LRB , 311 U S. 7, 10, Chief Justice Hughes, speaking for the Court, said- The remedial purposes of the Act are quite clear It is aimed, as the Act says (§ I) at encouraging the practice and procedure of collective bargaining and at protecting the exercise by workers of full freedom of association, of self organization and of negotiating the terms and con- ditions of their employment or other mutual aid or protection through their freely chosen representatives. In Division 1287 of the Amalgamated Association of Street, Electric, Railway and Motor Coach Employees of America v State of Missouri, 374 U.S 74, the Court said that collective bargaining is the "essence " of the Federal scheme In this connection it is significant that Schwartz confirmed that he had heard that the Union had "50 , 60, 70 percent of the people signed " m In the case of International Union of Electrical, Radio and Machine Workers, AFL-CIO v N L.R.B, 418 F 2d 1191, 1196 (C A D C ), the court said On the other hand , the Board has the duty of implementing the statutory policy in favor of collective bargaining, [and then added in footnote 15] Some courts forget that Congress has not directed the Board to be neutral on the question of collective bargaining, but on the contrary has stated. "It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have oc- curred by encouraging the practice and procedure ofcollective bargain- ing ...." 29 U S C § 151 (1964 ) (Emphasis added ) "Pervade , vt to become diffused throughout every part of-pervasion, n -pervasive , adj -pervasively, adv -pervasiveness , n " Webster's Seventh New Collegiate Dictionary 87 "Outrageous , adA Excessive, extravagant, fanciful, fantastic, violent, unrestrained , doing grave insult or injury, extremely offensive ... implies exceeding the limits of what is bearable or endurable " Webster's Seventh New Collegiate Dictionary. "The Board held in I.T.T Semi-Conductors, Inc, 165 NLRB 716, that the threat to close a plant if the Union should be designated bargaining agent is by itself "sufficient to establish that the Respondent had as its pur- pose the rejection of the collective-bargaining principle or the desire to gain time within which to undermine the Union and dissipate its majority " ® It is significant in evaluating Schwartz' deliberate attempts to fob off union organization that he fired a black union partisan followed by a white union partisan thus scotching union organization in each group. 70 "We believe that a discriminatory discharge of an employee because of his union affiliations goes to the very heart of the Act " N L.R.B v Entwistle Mfg Co., 120 F.2d 532, 536 (C A 4) See also May Department Stores dibla Famous-Barr Company v N L R B., 326 U S 376; Bethlehem Steel Company v. N.L.R.B, 120 F.2d 641 (C.A.D C.) THE LORAY CORP. whose trial of acquittal Schwartz appeared as a prosecuting witness; and an employee after being threatened with discharge was limited in the kind of union button she could wear. Additional proof that the employer's unfair labor practices became "un- bearable" is the fact that the Union filed unfair labor practice charges and withdrew from the elec- tion. By election time the chill was complete and union organization was so to speak frozen stiff. There is little doubt that the unfair labor practices were of an aggravated character, massive and prolific .71 Accordingly the Trial Examiner is convinced and finds that the unfair labor practices of the employer were "outrageous." For an informed employer, after 30 years of national labor policy flowing from the National Labor Relations Act, now an impor- tant part of our national heritage, to deliberately flout the Act, as was done in this case, and as Schwartz put it, to "spit" on the Union, is indeed "outrageous." The Respondent's unfair labor practices were not matters to be treated lightly but were substantial unfair labor practices which have an inherent ten- dency to cause employees to desert union associa- tion. Such threats, calculated to dissipate union support, conceptually placed the employees' future welfare in jeopardy and destroyed the atmosphere of free choice which the Board seeks to preserve in its elections. Thus it is evident that the Respon- dent's failure to accord recognition to the Union was not inspired by a genuine or good-faith doubt of the Union's right to represent the employees but by an intention to repudiate the concept of collec- tive bargaining and thwart union organization of its employees. The Trial Examiner is persuaded that the Respondent had completely rejected the collec- tive-bargaining principle and that it refused to recognize the Union in order to utilize the time to undermine the Union and dissipate its alleged majority. Schwartz was well informed. He has harbored a deep-seated distaste for the Union for 20 years.72 Schwartz was no tyro. He had confronted unions before.73 That Schwartz might comply with the Trial Examiner's recommendations or an order of the Board, if entered, is at best wishful thinking for Schwartz has already informed the employees that he might take the Union's charges to the Supreme Court. A portent of his recidivism is implicit in his discriminatory discharge of Woods, even after the General Counsel had issued a complaint against the Respondent involving similar misconduct. "The sanctions of the Act are imposed ... for the protection of the employees." N.L.R.B. v. Vir- " In a case where the unfair labor practices do not appear to be as inten- sive, repetitive , protracted, or devastating as in the instant case, the United States Court of Appeals for Second Circuit (N L R B v Marsellus Vault & Sales, Inc., F 2d (October 1 , 1969)), held that the "strong medicine" of a bargaining order was appropriate "in light of the extent of the Company's antiunion campaign " " Schwartz told the employees, " I do not like the Union never have for 581 ginia Electric and Power Company, 314 U.S. 469, 477. The Trial Examiner is convinced that in order to protect the employees in their rights guaranteed by Section 7 of the Act, as well as to deter the Respon- dent from a repetition of its misconduct , a bargain- ing order should be entered and so recommends. Surely a feckless remedy is not contemplated by the statute. Guidance for such an order is found in the Supreme Court's language in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 610-613: If the Board could only enter a cease-and-de- sist order and direct an election or a rerun, it would in effect be rewarding the employer and allowing him "to profit from [his] own wrong- ful refusal to bargain ," Frank Bros., supra, at 704, while at the same time severely curtailing the employees' right freely to determine whether they desire a representative . The em- ployer could continue to delay or disrupt the election processes and put off indefinitely his obligation to bargain; and any election held under these circumstances would not be likely to demonstrate the employees' true, undistorted desires. ... a bargaining order is designed as much to remedy past election damage as it is to deter future misconduct. If an employer has suc- ceeded in undermiming a union 's strength and destroying the laboratory conditions necessary for a fair election, he may see no need to vio- late a cease-and-desist order by further unlaw- ful activity. The damage will have been done, and perhaps the only fair way to effectuate em- ployee rights is to re-establish the conditions as they existed before the employer's unlawful campaign. There is, after all, nothing per- manent in a bargaining order, and if, after the effects of the employer's acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a decertification petition. For, as we pointed out long ago, in finding that a bargaining order involved no "in- justice to employees who may wish to sub- stitute for the particular union some other ... arrangement," a bargaining relationship "once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to suc- ceed," after which the "Board may ... upon a proper showing, take steps in recognition of changed situations which might make ap- the last 20 years because it is no good, it does not help you, and it never will.., " On this subject he told employees, "I had a plant in [Gainesboro] Ten- nessee that is a ghost town today because of union . The papers there printed that I payed [sic] over 5 thousand dollar s in back pay to girls but that was a damn lie. I have never payed [sic] anyone I will not start now " 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD propriate changed bargaining relationships." Frank Bros., supra, at 705-706. As recognized by the Court of Appeals for the Fifth Circuit in J. P. Stevens & Co. v. N.L.R.B., 417 F.2d 533, 538, "In order to enable employees to enjoy these rights, especially in lawful efforts to or- ganize for collective representation, there are many instances in which the inescapably negative cease and desist order will not suffice. Nor is the rein- statement with backpay order universally and fully effective. In the first place, this merely assuages the direct economic injury suffered by the victims of unlawful discrimination, except to hold out some hope that the incidents will not recur because each will be met by this mild sanction, the backpay or- der's impact on the efforts of the remaining em- ployees to organize is at best uncertain. "74 The court quotes in footnote 16: "When an employer has engaged in massive unfair practices, there can be a resulting fear of reprisals that must be dispelled before the situation is restored. See Bok, The Regulation of Campaign Tactics in Representa- tion Election under the National Labor Relations Act, 78 Harv. L. Rev. 38, 140-141 (1964); Note, The Need for Creative Orders under Section 10(c) of the National Labor Relations Act, 112 U. Pa. L. Rev. 69, 90-94 (1963)." The pertinent question is what remedy shall "`ef- fectuate the policies of ... this [Act]"' and "must dispel, compensate for, or at least neutralize, the frustrating effects of persistent, illegal activity. "75 The Respondent's unfair labor practices destroyed the employees' freedom of choice by frightening them into withdrawing their support of the Union and were of such a nature as to have a lingering effect and make a fair or coercion-free election impossible . Moreover, it is illusory that the lingering coercive effect of these egregious unfair labor practices can be neutralized by conventional remedies so as to ensure a fair election . Not only is a fair election an unlikely possibility but it may be years before the lingering effect of the Respon- dent's unfair labor practices will have been dis- sipated to the extent that the Union may regain enough strength to satisfy the 30-percent require- ments for the filing of a representation petition.76 The Circuit Court of Appeals for the Sixth Cir- cuit has recognized that "a mere cease and desist order ... may serve only to represent formal acknowledgment of the law while the offender maintains full possession of the fruits of its viola- tion." N.L.R.B. v. Montgomery Ward & Co., 339 F.2d 889, 894. ' There is a substantial danger that the backpay award has degenerated into "a license fee for union busting " Staff or Subcommittee on NLRB, House Committee on Education and Labor , 87th Cong, Ist Sess, Ad- ministration of the Labor -Management Relations Act by the NLRB 2 (Comm. Print 1961) See also Stevens 1, at 303-304." r' "It bears emphasis that the protected collective activity-and conver- sely the object of formidable employer opposition-was attempting to or- ganize. A remedy 'to effectuate the policies of .. this [Act],' § 10(c), As far as the employees who have been subjected to the Respondent's unfair labor practices are con- cerned ("Nor may we forget that the interests to be protected are primarily those of employees ...." Philip Carey Manufacturing Company v. N.L.R.B., 331 F.2d 720, 735), a cease-and-desist order (which they may never see) and the Respondent's name attached to a notice "We will not" are not really an assurance that the Respondent will change its way of life and suppress its manifested propensi- ty to engage in unfair labor practices and to frus- trate the Act's policies and the employees' rights. An intractable employer, who without compunction has been found to have been a dissembler and is unworthy of credence, must engender the belief that he will, nevertheless, put into practice his heretofore uttered threats even though he remains silent. A more effective prophylactic is needed. Acts are called for, not words. There must be a valid, viable demonstration. Paltering is not enough. An order to bargain will provide the groundwork for such a demonstration. An order to bargain accompanied by bargaining in good faith will dispel the effect of the employer's threats that the Union will never come in the plant or that it will never talk with the Union or listen to employee grievances. It will dispel threats that the employer will never sign a contract or pay health and welfare benefits, threats that it will cause the arrest of union handbillers, threats that it will close the plant before it will deal with the Union, and threats to chastise union partisans. Thus, the underlying objective of the Act to promote collective bargaining will be obtained. Cf. James B. Cary v. Westinghouse Electric Corporation, 375 U.S. 261, 265. As is apparent the employees' organizational campaign for a union of their choice has been frus- trated. They have been overwhelmed with coercive representation both as to the futility of choosing a union as a bargaining agent and the lack of need for the Union, whereas the Union, as the statute con- templates, may have emerged as a useful and worthwhile instrument for collective bargaining, an eventuality which the employees had the right to test. To countervail the effect of these representa- tions of futility and lack of need, a bargaining order will afford the Union an opportunity to demon- strate its need and worth to the employees. Such an order will not interfere with the employees' ulti- mate redetermination of their desire to be represented by the Union or the exercise of their right to refrain from union activities, for after the employer bargains with the Union for a reasonable must dispel, compensate for, or at least neutralize , the frustrating effects of persistent illegal activity " J. P. Stevens & Co v N LR B , supra, 541 'Cf. NLRB v. Wylie Manufacturing Company, 417 F.2d 192, 196 (C A 10) "The Board can consider an employer's unfair labor practices in the light of their effect on election conditions and if it finds that there is slight possibility of ensuring a fair rerun election because of past conduct and that a bargaining order is better protection, it may issue such order." THE LORAY CORP. time (which the Trial Examiner fixes as a period of at least 90 days following the posting of the recom- mended notice ), the employees may seek a decer- tification of the Union or can, if that is their plea- sure, choose another labor organization as their representative. Wherefore the Trial Examiner recommends that the Respondent be ordered to bargain in good faith with the Union for a period of at least 90 days fol- lowing the posting of the notice herein recom- mended. If an understanding is reached within this 90-day period, the understanding shall be embodied in a signed agreement in writing. The agreement shall contain a recognition clause, in which the Union is recognized as the exclusive representative of all employees in the unit herein found ap- propriate for the purposes of collective bargaining in respect to rates of pay, wages , hours of employ- ment, and conditions of employment . The agree- ment shall take effect upon its ratification by a majority of the employees in the unit herein found appropriate . If there is a dispute as to this fact, it shall be resolved by the Regional Director for Re- gion 10. In the event a contract is not ratified as above set out, unless during the 90 -day period the Union presents convincing evidence satisfactory to the Re- gional Director for Region 10 that the Union has been designated as the collective -bargaining agent of a majority of the employees in the unit herein found appropriate , the order to bargain herein shall 583 not constitute a bar to the resolution of a question of representation , if one exists within the meaning of the Act and the Board's Rules and Regulations, Series 8 , as amended, provided that during the in- terim Respondent has complied in good faith with the Recommended Order. It is the Trial Examiner 's opinion that a bargain- ing order is the only efficacious remedy under the circumstances of this case. It was wrong for the Respondent to frustrate the aspiration of its employees to choose a collective- bargaining agent. This was wrong, for "the avowed and interrelated purposes of the Act are to en- courage collective bargaining and to remedy the in- dividual worker's inequality of bargaining power . . " N.L.R.B. v. Hearst Publication , Incorporated, 322 U.S. 111, 126. The remedy herein recom- mended corrects in part that wrong and gives vitali- ty to the right . It serves to effectuate the purposes of the Act which was the intent of Congress. "Drawn to deal substantially with substantial things, the National Labor Relations Act has been from the beginning, it must continue to be, con- sistently with its avowed purpose and the language employed in the Act, broadly construed and as broadly given effect to cope with and prevent the mischiefs it was designed to meet and do away with." N.L.R.B. v. Metallic Building Company, 204 F.2d 826, 828 (C.A. 5), cert . denied 347 U .S. 911. [Recommended Order omitted from publica- tion. ]