Marlene Industries Corp.

SYLCO CORPORATION 741 Sylco Corporation , a division of Marlene Industries Corporation and International Ladies' Garment Workers' Union, AFL-CIO. Cases 11-CA-3606, 11-CA-3673, and 11-RC-2662 July 31, 1970 DECISION, ORDER, AND DIRECTION By MEMBERS MCCULLOCH, BROWN , AND JENKINS On October 30, 1969 , Trial Examiner Melvin Pollack issued his Decision in the above-entitled proceeding finding that Respondent had engaged in and was engaging in certain unfair labor practices, in violation of the National Labor Relations Act, as amended , and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Deci- sion. He also found that Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them . Finally , the Trial Examiner recommended that the Board overrule the challenges to certain ballots cast in Case I1-RC-2662 . Thereafter, 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 connection with these cases 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, 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 with the Decision herein. Although we agree with and adopt the Trial Ex- aminer's 8(a)(3 ) and (1 ) findings in all other respects , we disagree with his conclusion that Respondent violated Section 8(a)(3) by terminat- ing the knitwear operation at the Sylco plant and discharging the knitwear employees. By way of background , the facts show that the plant herein was acquired by Respondent in February 1967.2 Immediately thereafter , Respon- dent began the manufacture of baby sleepers and knit shirts. By April 1967 the plant had been di- vided into two sections : knitwear and sleeper. As this line of work was somewhat new to Marlene operations , Respondent initially experienced poor sales. As sales remained far below Respondent's ex- pectations, a review of Sylco's operations was begun in November 1967. On November 14, 1967, Hann , vice president of Sylva, Sylco 's sales agent, sent a letter to Plant Manager Sturken indicating a consensus that as Respondent 's knit department was being operated at a loss, Respondent was con- templating phasing that department out. More specifically , Gulker, Marlene 's comptroller, had prepared an analysis of Sylco's operations which showed a net loss of $63 ,690.65 for the knitwear department for the 6-month period ending July 31, 1967, and a net loss of $61 ,092.40 for the same de- partment for the 9-month period ending October 31, 1967 . The same analysis revealed the sleepwear department realized a $69,090 .84 profit at the end of the 6-month period and a profit of $70,417.31 by the end of the 9-month period. On December 2, 1967, Abraham Dansky, Mar- lene's vice president for manufacturing , Vice Pre- sident Hahn , Accountant Brodsky, and Gulker discussed production at Sylco . On the basis of the Gulker analysis and further discussion , Dansky at that time decided the knitwear operation should be phased out. As several orders for knitwear goods were still outstanding, however , Respondent de- cided those orders should be honored and that the actual phaseout would not come until after Christ- mas. On December 4, 1967, Hahn wrote Sturken that Respondent had decided to discontinue the knit de- partment but "to hold people as long as can [sic] before Christmas , as [Dansky ] would hate to ,have them laid off, before Christmas ." Thereafter, on December 11, 1967, Hahn again wrote Sturken in- forming him that General Manager Cole would ar- rive shortly and assist him in closing down the knit section . There is no evidence in the record to sug- gest Respondent became aware of the Union's or- ganizational campaign until union representatives began distributing leaflets on December 8, 1967. In his decision , the Trial Examiner accepted the authenticity of the letters and memorandums from Respondent's files relative to the closedown and credited testimony by Gulker and Dansky that by December 2, 1967, Respondent had decided to close down the knitwear section . Nevertheless, he ' The findings and conclusions of the Trial Examiner which we adopt are based , in part , on his credibility determinations , to which Respondent has excepted After a careful review of the record herein , we conclude that the Trial Examiner 's credibility findings are not contrary to the clear prepon- derance of the relevant evidence and, accordingly , we find no basis for disturbing them Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F2d(CA 3) ' Dates are 1968 unless stated differently 184 NLRB No. 82 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluded that the December 2, 1967, decision was not final and that as Respondent's business condi- tions improved , sometime thereafter Respondent reversed that decision and decided to continue producing knitwear garments and would have con- tinued such operations at Sylco had it not been for the Union 's apparent success and Respondent's desire to defeat the Union . Accordingly, the Trial Examiner concluded that the ultimate closedown of the knitwear section violated Section 8(a)(3) and (1) of the Act. In concluding that improved business conditions caused Respondent to shelve its earlier decision to close the knitwear operation , the Trial Examiner relied on the timing of the actual phaseout opera- tion shortly after the Union 's January 11 demon- stration of employee support, the statements by su- pervisors during December as to increased orders and work for the knitwear department, the ex- istence of a substantial number of unfilled SSR or- ders on hand at the time of the shutdown, and delivery of skat-a-bout material to Sylco and the removal of said material for subsequent manufac- ture at a new knitwear operation established at Liberty, Kentucky. Additionally the Trial Examiner relied on Respondent's history of unfair labor prac- tices at its other plants, and the coercive conduct engaged in by the Respondent to defeat the Union in the instant case , including supervisory statements that the advent of the Union was the reason for the shutdown. In our opinion, the evidence is insufficient to establish that Respondent 's economically motivated decision to terminate knitwear operations at Sylco, made prior to the advent of the Union , was ever reversed. The scant and largely inconclusive testimony concerning improved business conditions was based largely upon vague statements by super- visors and employees and is hardly sufficient to overcome the hard economic facts which prompted the initial decision to close , and which offered little hope for improvement. While the business records introduced at the hearing to show that the knitwear department was operating in the red appear to show a slight profit during the August-October period, that profit did nothing more than reduce the net operating loss from $63,690. 65 during the prior 6-month period to $61,092.40 for the entire 9-month period. Aside from this profit-loss statement, there is no evidence in the record to indicate further increased sales or a reduction in the loss on the knitwear side. Nor is there evidence to show substantial increases in con- tracting out to knitwear manufacturers or produc- tion of knitwear at other plants at times contem- poraneous with the instant closing. Regarding the SSR 's, the record indicates the first cutting of these garments was begun in Oc- tober and cutting continued until after the closedown decision had been announced , and ap- pears consistent with the Trial Examiner's crediting testimony that Respondent had received orders for 20,000 dozen SSR 's at one point , was getting more, and ultimately received orders totaling 37,000 dozen . Since the SSR cutting began in October, it is apparent that the number of SSR orders was a fact within Respondent 's knowledge at the time of the decision to close the plant. Also unpersuasive are the statements by super- visors during December concerning increased or- ders and additional work for employees. These statements were not substantiated by any evidence, showing rather that they were motivated by a desire to maintain employee morale during the preholiday season. Indeed such a view of the testimony is per- fectly consistent with management's instruction to keep the closedown decision secret , and to avoid confronting employees with it until after the holidays. Regarding the skat-a-bouts, the record reveals about 10,000 yards of skat-a-bout material was received in January and was not in the inventory taken 3 months later, and the skat-a-bouts were subsequently manufactured at another plant. There is no evidence in the record, apart from the delivery of the material, which shows skat-a-bouts were intended to be manufactured at the Sylco plant, and the record shows this material was not delivered until after the closeout decision had been reached and Respondent had begun making plans for carrying it out. Also significant is the fact that the skat-a-bouts, being a winter line, would not be an item usually produced until well after the time the closedown occurred . While the removal of material in the midst of an antiunion campaign, characterized by other unfair labor practices, and its subsequent manufacture elsewhere appears suspicious, under the circumstances in this case, we are not persuaded that this factor, considered in context, evidenced a reversal of the December 2 decision to close . Thus, while the issue is not free from doubt, the facts surrounding the skat-a-bout are highly speculative and do not support an in- ference as to employer motivation adequate to sup- port a finding that Respondent changed its mind and decided to continue its knitwear operations. Accordingly , as Respondent proved it had de- cided to close its knitwear operations before the Union appeared on the scene , and as the General Counsel has failed to produce sufficient evidence to show that at any point during the time in question this decision was abandoned , we reverse the Trial SYLCO CORPORATION Examiner 's finding that Respondent 's termination of its knitwear operation violated Section 8(a)(3) and (1) of the Act . Accordingly , we do not adopt the Trial Examiner's finding that the employees discharged as a result of the termination of the knit- wear section are entitled to reinstatement and backpay, or to have the ballots cast by them in Case 11-RC-2662 opened and counted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent , Sylco Corporation, a division of Marlene Industries Corporation , Sylva, North Carolina , its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Ruth Brooks, Martha Cagle, Mary Sue Smith , Clarice Crisp, Mary Doris Jones, Susie Birdell Ward , and Pat Colosi full and immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges , dismissing if necessary their replacements , and make these em- ployees and Robert Mills, Jr., whole for any loss of pay suffered by reason of the discrimination against them . The loss of pay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. [2. Substitute attached notice for Trial Ex- aminer's.] d. Post at its place of business in Sylva, North Carolina, copies of the attached notice marked "Appendix . "3 Copies of said notice , on forms pro- vided by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter , in conspicuous places, in- cluding all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. IT IS FURTHER ORDERED that the complaint, in- sofar as it alleges violations of the Act not herein found, be, and it hereby is, dismissed. DIRECTION 743 It is hereby directed that in Case 1I-RC-2662, the Regional Director for Region 11 shall, pursuant to the Board 's Rules and Regulations, within 10 days from the date of this Direction , open and count the ballots of employees Ruth Brooks, Martha Cagle, Mary Sue Smith , Clarice Crisp, Doris Jones, Susie Birdell Ward , and Pat Colosi and all other overruled challenges and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of the challenged ballots cast by the above-named employees , and issue an appropriate certification. MEMBER BROWN , dissenting in part: Contrary to the majority , and for the reasons fully stated by the Trial Examiner, I would affirm the finding that Respondent violated Section 8(a)(3) and ( 1) of the Act by closing the knitwear department and terminating knitwear employees. I In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the 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." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, refuse to employ, suspend, or otherwise discriminate against em- ployees in order to discourage membership in or support of International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT threaten employees with discharge for engaging in union activity. WE WILL NOT coerce employees by telling them that other employees had been ter- minated because of the Union and because of their union activities. WE WILL NOT threaten employees with clos- ing or moving the plant should they select the Union as their collective-bargaining represent- ative. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT promise employees benefits if they refrain from union activity. WE WILL NOT encourage and assist em- ployees opposed to the Union in the circula- tion of antiunion petitions and the promotion of antiunion meetings. WE WILL NOT interrogate employees con- cerning their own or other employees' union activities and sentiments. 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 Inter- national Ladies ' Garment Workers' Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid and protec- tion , and to refrain from any or all such activi- ties. WE WILL offer to Ruth Brooks , Mary Cagle, Mary Sue Smith , Clarice Crisp , Mary Doris Jones, Susie Birdell Ward , and Pat Colosi rein- statement to their former positions or to sub- stantially equivalent positions , without preju- dice to their seniority and any other rights and privileges previously enjoyed , and make them and Robert Mills, Jr., whole, with interest, for any loss of pay they may have suffered by reason of our discrimination against them. WE WILL notify immediately the above- named individuals , if presently serving in the Armed Forces of the United States , of the 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. SYLCO CORPORATION, A DIVISION OF MARLENE INDUSTRIES 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, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-2300. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MELVIN POLLACK, Trial Examiner: These proceedings under Sections 9(c) and 10(b) of the National Labor Relations Act, Series 8, as amended, were heard at Waynesville, North Carolina, on various dates between November 13 and December 13, 1968, and at Sylva, North Carolina, on December 19, 1968. In Case 1l-CA-3606, pursuant to a charge filed on April 24, 1968, a complaint was issued on July 11, 1968, and amended at the hearing. In Case 11-CA-3763, pursuant to charges filed on July 11 and August 27, 1968, a complaint was issued on August 28, 1968. The outcome of an election conducted on May 2, 1968, in Case 11-RC-2662, turns on the voting eligibility of employees alleged in the complaints to have been discriminatorily discharged. Briefs filed by the parties on July 7 and 8, 1969, have been carefully considered. Upon the entire record,' and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Sylco Corporation, a division of Marlene Indus- tries Corporation, herein referred to as the Respon- dent or the Company, is a North Carolina corpora- tion engaged in the manufacture and distribution of wearing apparel at its plant in Sylva, North Carolina, herein referred to as the Sylco plant. Respondent 's annual interstate sales and purchases each exceed $50,000. I find that Respondent is en- gaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction In May 1965, the Union began an organizational campaign among employees of seven plants operated by Respondent's corporate parent, Mar- lene Industries Corporation, in Tennessee, ' The record is corrected pursuant to the joint motion of the parties, dated April 9, 1969 SYLCO CORPORATION Alabama, and South Carolina . Marlene responded by a "massive" antiunion campaign "of deliberate and flagrant violations of ' the Act ." Decaturville Sportswear Co., Inc . v. N.L.R.B., 406 F.2d 886 (C.A. 6), enfg. 166 NLRB 703. In a subsequent case , Marlene Industries Corporation , 171 NLRB 848, the Board found that Marlene did not commit further unfair labor practices at its two Tennessee plants. Marlene opened three new plants in 1967: the Sylco plant in February ; a plant at Russell Springs, Kentucky , in April; and a plant at Liberty, Ken- tucky, in May. The Sylco plant was divided shortly after its opening into a sleepwear side and a knit- wear side . The complaints allege inter alia that Respondent, by its supervisors or agents , coercively interrogated and threatened employees, solicited employees to sign antiunion petitions , and dis- criminatorily discharged several employees , but the principal issue litigated in this proceeding is whether Respondent discriminatorily terminated the knitwear operation to discourage support for the Union. B. The Termination of Knitwear Operations Prior to its acquisition by Respondent, the Sylco plant manufactured baby sleepers and boys' knit shirts, both lines being new to the Marlene opera- tions . Respondent opened the plant in February 1967 and ' by May was manufacturing baby sleepers, boys' and girls' knit shirts, and ladies ' blouses,2 Toward the end of June , the knitwear side of the plant was also sewing ladies' pants . Some ladies' skirts were sewn in July and August, and ladies' dresses were also sewn throughout September, Oc- tober, November , and December . 3 A line of chil- dren 's and girls ' knit shirts (Styles SSR 1-2-3) was put into production about the end of October and was cut regularly until January 22, 1968.4 Respondent maintained separate lines of machines on the knit side of the plant for knit shirts,5 dresses, pants, and blouses . Slack periods on the various lines became quite frequent in the fall of 1967 and operators were transferred from one line to another. Style changes requiring the resetting of machines were common and operators at times had little or nothing to do. Respondent, nevertheless, continued to hire employees and in late November 1967 had about 150 knit operators and about 85 sleepwear operators. On November 14, 1967, "Ricky " Hahn , vice pre- sident of Sylva Manufacturing Corporation, the ' In May 1967, Robert Cole, Marlene's general manager, advised a newspaper man that "future plans call for expansion programs in all areas" and that Sylco would have in "the neighborhood of 500 people by the end of 1967." 3 Knitwear Supervisor William Harper told employees in November or December that they had enough cotton dresses to work on through Februa- ry and March 1968. ' There was no cutting of SSR's from January 22 until February 26, 1968, when 820 dozen SSR 1's were cut. 745 sales agent for the Sylco plant, sent the following "speed letter" to Thomas Sturken, Sylco's plant manager: Just got finished reviewing preliminary figures on Sylco with Dansky and Gulker and it looks like we lost $200,000.00 in knit operation.' Dansky already told me we are getting out of -the knit business and he has told Meltzers the same thing . Sales stink and since Marlene is strictly a ladies house it seems difficult for us to break into boys' operation. Lot of buyers don't want to talk to us. I'm spending too much time trying to get knits straightened out. I 'm afraid the sleeper busi- ness will hurt and you know this is the' only business I know and I don 't want it to go down the drain like the knits have. I understand Bob Cole has been informed by Dansky that we are going out of the knit busi- ness and he will work with you in phasing it out. I have been going over production schedule on sleepers that Richie was working on when he was in Sylva during inventory time and we are preparing our purchasing of piece goods and trim and laying out a schedule so we can get a plan. I'm still getting complaints on shortages and wish someone would find out what is going on in the shipping department. Our cost on sleepers is still high and I can't af- ford to pay the factory any more money. I've been trying to get on the watts line to go over some problems but the Meltzers keep the phone tied up all the time. I'm getting samples lined up for a new line and will probably visit the plant and go over them with you. I will put it on telo when I find out when I will be there and you can make a reser- vation for me. Manager Sturken called a meeting of the em- ployees in late November 1967 . He said questions had been raised about the moving around of opera- tors and the frequent change of styles . He said the Company was "still experimenting" and that there ' Respondent began sending knit shirts to sewing contractors in the summer of 1967 s An analysis of Sylco's operations prepared by Abraham Gulker, Mar- lene's comptroller, shows a net loss on the knit operations of $63,690,65 for a 6-month period ending July 31, 1967 , and a net loss of $61,092.40 for a 9-month period ending October 31, 1967 The analysis shows net profits in the sleepwear operation of $69,090.84 and $70,417 31 for the same 6- and 9-month periods. Abraham Dansky is Marlene's vice president of manufacturing 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not be as much switching around when the Company decided what to make in the knitwear de- partment. On December 2, 1967, Vice President Dansky discussed the production situation at Sylco with Comptroller Gulker, Vice President Hahn , and Ac- countant Brodsky . Gulker presented his analysis of the Sylco operations and, after some discussion, Dansky decided to phase out the knitwear opera- tion after Christmas . Hahn sent the following letter to Manager Sturken:' December 4, 1967 Mr. Tom Sturken Sylco Mfg. Co. Sylva, North Carolina Dear Tom, This past week-end I attended a meeting with Abe Dansky, Abe Gulker and Brodsky, the company accountant . As we discussed be- fore, the experimental period on the knit operation is coming to an end . Up until now we haven 't been able to do very well and state- ments show that we have lost a great deal of money in the knit operation. After Buddy left and Sam hired Lou Marks we still haven't been able to increase the boys knit sales. The Meltzers have turned us all over the coals and they have been screaming they are closing down knit operation . We have decided that this is best thing for us to do and since Lou Marks' contract is for only 6 months it is best that we work out whatever we have in process and our commitments and take our beating now . This is better for me as I can con- centrate on selling sleepers. I know this news will make you happy as you have had more problems in the knit section. Dansky tells me that it will be hard to keep giv- ing Sylco other products as he is hurting other plants . The dresses we put into Sylco together with other unfamiliar items, in order to keep unit going, hoping we would build up boy knit sales has created more difficulty than ex- pected . I know you have been complaining about moving operators from job-to-job and retraining them for various operations with a great deal of loss to the company. We still have some knit goods on order with knitters that Lou Marks committed us to that we will have to make . I haven 't been able to confirm as Lou is avoiding me. I think he suspects we intend going out of knit business. Suggest you confer with Bob Cole for method that he wishes to discontinue this knit ' This letter was the only one in ordinary letter form sent to Sturken by Hahn The letterhead indicated that Respondent manufactured blanket operation. You will have to sit down with him and make out a schedule of what cuttings we will have and I will try to check our fabric purchases and try to give you delivery dates. Dansky says to hold people as long as can before Christmas , as he would hate to have them laid off before Christmas. Will send you more information as soon as I am able to assemble it. /ct Ricky On December 8, 1967, the Union handed out leaflets in front of the plant. A few days later, General Manager Cole spoke to the Sylco super- visors about the Union's organizing campaign. He told them not to talk to anyone about the Union, to keep their mouths shut . He added that the Com- pany had been fighting the Union for years and would ' fight it anyway, that they had to. He was asked what the supervisors should do if they saw an employee signing a union card on the job and replied that it was all right for the employees to sign cards at the break hour or the lunch hour but that the su- pervisors could fire anyone who passed or signed a card, during working hours. On December 11, Hahn sent the following "speed letter" to Sturken: I have just finished talking to Dansky and he tells me Bob Cole will be in Sylva this week or next and will work with you in closing down the knit section. Bob will transfer the equip- ment to whatever factory it can be used. I am not familiar with Marlene procedure along this line but I am sure Cole will help you make out whatever papers are necessary to transfer this equipment. I don't know whose job it is to inform Lou Marks his services will be terminated when his contract is up, but I wish you would not say anything when you talk to him, but I have a feeling that it will be me. Sleepers sales doing pretty good and I have good prospects for long range program. The next day, Hahn sent another speed letter to Sturken, as follows: Dear Tom: I need to know soon as possible when you expect to finish the knits you have in process. I might be able to recoup some losses we expect to take on some special deals for Xmas selling. 8 As noted above, the Sylco plant started to sew SSR children's and girls ' knit shirts in October 1967. In December, Plant Engineer Elliott told em-' ployee Carolyn Hughes, who had an opportunity sleepers, knit shirts and coordinates , and children 's sportswear " The record shows no action taken by Sturken in reply to this letter SYLCO CORPORATION 747 for a job elsewhere but preferred to stay at Sylco, that Sturken had told him that Respondent had or- ders for 20,000 dozen SSR's and "we were getting more." Cutting Foreman Copeland testified that Sylco received orders totaling about 37,000 dozen SSR's. At a Christmas party, Sturken announced that the new Federal minimum wage of $1.60 an hour would become effective at the plant im- mediately after the Christmas holidays rather than on February 1, 1968, as required by law, and that production rates would be set so that the operators could make $1.75 an hour. He assured the em- ployees that there was plenty of work to do.9 The plant closed for the Christmas holidays and reopened on January 2, 1968. During the first 2 weeks in January, about 6,750 dozen SSR's and about 2,250 dozen of all other items were cut. In January, over 100,000 yards of material for the manufacture of a new line of children 's knit outer- wear (skat-a-bouts) was delivered to the Sylco plant.'° On the morning of January 11, about 85 percent of the 300 Sylco employees stayed outside the plant while Ramelle MaCoy, a union official, entered the plant accompanied by employees Clyde Phillips, Glenda Nations, Ruth Brooks, Ed Stephens, Bonnie Allison, and others. tt MaCoy tendered Manager Sturken petitions signed by over 200 employees designating the Union as their bargaining represent- ative. Sturken refused to look at the petitions, the delegation left and the employees outside the plant reported for work. On January 16, 1968, General Manager Cole in- formed the plant's top supervisors that the Com- pany was going to phase out the knitwear side of the plant. Some maintenance men and cutting de- partment employees were discharged early in February and the knitwear operators were ter- minated on various dates in February and March 1968. Respondent had cut over 16 ,000 dozen SSR gar- ments up to January 22 and cut another 820 dozen SSR's on February 26, 1968. It thus cut about 17,000 dozen of the orders for 37,000 dozen SSR's received by Respondent.12 The 10,000 yards of skat-a-bout material shown on Respondent 's January 31, 1968 , inventory did not appear on the "Spring Inventory " taken 3 months later . James Cogdill and Richard Sitton credibly testified that they, Alvin Burrell, Cutting Foreman Copeland , Assistant Plant Manager Don Wood, and Supervisor Dan Stephens loaded 1900 cloth on a trailer on a Saturday after the layoff of some knitwear employees . Respondent's parent, Marlene , added a knitwear department to its plant at Liberty Kentucky, in the spring of 1968. Many machines used in this department came from the Sylco plant. Bill Harper, Sylco's former head knit- wear supervisor, took over the supervision of this department the latter part of June . The Liberty plant manufactured the skat-a-bout garments from June through October 1968 . 13 Sylva Manufacturing Corporation , Sylco's sales agent, marketed the skat- a-bouts manufactured at Liberty . Some of these garments, identified as "Sylva " garments by their hangers, labels, and plastic shipping bags, were returned by customers to the Sylco plant . Sylva's invoices give the address of the Sylco plant as its shipping and receiving office. C. Respondent's Antiunion Campaign The Union on January 16, 1968, filed a petition for a Board election , which was set for May 2 pur- suant to a stipulation for certification upon consent election approved by the Board 's Regional Director on March 21 . The complaints allege that Respon- dent's supervisors and agents engaged in a course of coercive conduct to discourage support of the Union . The evidence may be summarized as fol- lows: 1. Interference , restraint, and coercion 14 a. Supervisory conduct15 9 Sturken denied telling the employees that there was plenty of work to do I credit the contrary testimony of Elaine Stewart, Leona Moody, Dorothy Burch , and Evelyn Buchanan ` An inventory of goods for the Sylco plant, dated January 31, 1968, shows 17 rolls of " 1900" skat-a-bout cloth from "Dyersburg " and 125 rolls of "019-" cloth from the same supplier Charles Queen and James Edward Lamb credibly testified that the 17 and 125 rolls were the same cloth, that skat-a-bout cloth was ordinarily entered as a 6-digit number beginning "019," and that " 1900" was a "short -hand" way of recording the "019" se- nes Queen , a cutter, also testified that he saw from 150 to 200 rolls of skat- a-bout cloth at the plant Robert Childers, a shipping department em- ployee, testified that he saw 4 to 5 stacks of the cloth used to cut skat-a- bout samples and that each stack "consisted of approximately 15 or 20 re4Is of cloth " A roll is about 80 yards of material " Knit Supervisor Harper testified that about 25-30 knit employees re- ported for work as usual Assistant Manager Don Wood confirmed Har- per's testimony and said about 8-10 sleeper employees and 2 or 3 cutting department employees also reported as usual. " Cutting Foreman Copeland testified that 9,000 or 10,000 dozen SSR's were cut and that the remaining orders for SSR's were not filled because customers "objected to the way they was made " Copeland gave no details concerning the alleged cancellation of SSR orders and Respondent produced no supporting documents SSR's were the primary items of production after the Christmas holidays, SSR's were sent to sewing con- tractors as late as January 18, 820 dozen SSR's were cut at the Sylco plant on February 26, and Respondent received shipments of knit shirts from contractors into April and May 1968 In these circumstances, I reject Copeland's testimony concerning the cancellation of SSR orders and find that Respondent had on hand substantial orders for SSR garments when Cole informed key Sylco personnel on January 16 that the knit operation would be terminated 1s Samples for these garments were cut at the Sylco plant in January and February 1968 The Sylco plant generally manufactured garments for which it cut samples. 14 I have' not included in this section some incidents not alleged in the complaints as violative of Section 8(a)(1) of the Act and some other in- cidents which I consider of little consequence to the disposition of the case 1s The supervisors denied making the coercive remarks attributed to them by the employees who testified concerning the incidents described in the text The employees' testimony on many incidents is quite detailed and the employees impressed me generally as more reliable witnesses than the supervisors The incidents described in the text are therefore based on the credited testimony of the employee witnesses 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) Don Wood On February 8, 1968 , Georgia Johnson told Assistant Plant Manager Don Wood that Dona Thomasson , her sister-in-law, wanted to transfer over to the sleepwear department . Wood asked if Thomasson had anything to do with the Union and Johnson said Thomasson had signed a card. Wood remarked that three people had told him that John- son too had signed a card. Johnson replied he "might hear anything," whereupon Wood com- mented that he knew she needed the job because her husband was ill , that he would "hate for [her] to get messed up," that the union girls were "going to have it hard , whether they made production or not," and that "the company would move before they would have a union ." Dona Thomasson was discharged on February 26. A week or two later, following a telephone call from Wood , Thomasson went to Wood 's office . Wood asked her how she felt about the Union . Thomasson said she needed the work and was getting tired of fooling with "this confounded outfit ." Wood said , "That's good enough for me, Dona," and put her to work. The date of the Board election , May 2, Wood asked Thomasson how she and Georgia Johnson were going to vote at the election. Two or three weeks before the election on May 2, Wood asked James Lamb, a receiving depart- ment employee, how he felt about the Union, told him he "should go for the Company," and re- marked , "Well, if we get this union here , we will all 'be out of a job." Lamb wore a union badge on elec- tion day . That morning , Wood, in the presence of Supervisor Dan Stephens , commented that Lamb was wearing "a mighty nice looking badge," asked Lamb how he was going to vote, and said they would be out of a job if the Union got in. (2) Dan Stephens Ed Stephens , a mechanic , participated in the Union's organizing campaign and became a member of its organizing committee . About the middle of February , his brother , Dan, supervisor of the knit finishing section, visited him at his home, called him into the kitchen and said , " I guess we're fighting each other." Ed replied, "Not unless you're working for the Company." Dan commented that Ed would "get all of those people fired over there" and, when Ed said he had not forced anyone to sign a union card , added, "Well, you are next, you are going to get your damned ass fired too." In March , Dan Stephens asked Richard Sitton, a cutting department employee , whether he had at- tended a union meeting held the night before and what he was told at the meeting . He added that he "knew all about the meeting ," said the employees would have to pay $7 a month dues if the Union won the election, referred to the Union as "a Com- munist outfit," and said the Company would be good and give the employees raises if they left the Union alone . About April 15, Sitton spoke to Stephens about the many layoffs and terminations at the plant . Stephens replied , " If it hadn 't been for the damn union , there would be two rows of machines out there, and everybody would have been working just about." In January at a Sylva restaurant , Stephens, in the presence of Mike Cooper and Charles Hooper,1e asked maintenance man James Nicholson how he felt about the Union and told him that he would probably be out of a job if he "kept messing around with Ed Stephens and the boys." In February, Joseph Thompson, a service boy in the finishing department, asked Stephens if there were any more orders to sew. Stephens replied that there would be no more orders to sew "if we didn't quit with this union." The day after a union Bingo party, Stephens asked sewer Helen Davis why she had attended the Bingo party. When Davis replied , " it's a free country, you can go where you please ," Stephens commented that he had not noticed her at a nonu- nion meeting. In March , Stephens asked shipping department employee Thelma Cooper if she was "for the Union or for the plant." In a subsequent conversation, he suggested that she "could play along with the union and vote for the plant," and on another occasion he asked her if she was going against her mother.17 On March 22, Stephens asked Robert Childers, a shipping department employee, whether he had thought "about going against the union ," and said that Childers "might have a chance of a move up" if it lost the election. Stephens "went into figures" concerning the number of union adherents at the plant and said that the Company " would close the plant" before it would "put up " with the Union. Stephens asked Childers "to think about it" and on March 27 said to him, "Well, what have you de- cided?" Childers replied he "could not see it his way." In March or April, at a gasoline station, Stephens told cutter Charles Queen , who had been ter- minated in February, that a lot of people would be hurt if they "kept on" with the Union, that "you all hit the Company at the wrong time," and that the Company might close the plant down because of the employees' union activity. (3) Robert Cole On February 28, in the restroom, repair girl Mar- garet Turpin handed Bertha Hall an antiunion peti- tion to sign . Sleepwear operator Ruth Brooks took the petition from Hall, folded it, and tried to put it in her pocket. Turpin grabbed at and tore part of Hooper was not a Sylco employee. "The record shows that Bonnie Dietz , Cooper's mother, actively op- posed the Union. SYLCO CORPORATION the petition out of Brook 's hand. Brooks pushed her way past Turpin out of the restroom and returned to her machine . Turpin "hollered for Dan Stephens and Juanita Brooks to come there." Stephens said to Ruth Brooks at her machine, "You had better let her have that petition ." Brooks refused to return the piece of paper to Turpin and Stephens said , "We will take you to the office." Stephens opened the door to the office where Wood , Plant Manager Sturken , and General Manager Robert Cole were sitting . Stephens said, "Margaret Turpin is here wanting to see you about the petition ," and Sturken told Turpin and Brooks to come in. The two women sat down and Cole asked what was wrong . Turpin said, " She took that paper from me . I know I wasn 't supposed to let her see it but I thought she was going to sign it. She kept it." Cole asked Brooks to return the piece of paper to Turpin but Brooks said , "No." Cole said he would not have scuffling in the plant and told Brooks and Turpin to hand the pieces of paper to him. Turpin handed her paper to Cole , who tore it up and put the scraps in a waste basket . Brooks refused to hand over her portion of the petition. Cole said , "That's her property, give it to her," but Brooks said , "No." Cole then said , "This union stuff ... that 's the reason the knitwear side is laid off" and added that the sleepwear side would also be laid off "if you all don 't stop it," that "the ones that needed the work " would lose their jobs, that he would close the plant down and move it to another State, but that he would transfer Sturken and Woods to another plant . Cole looked at Brooks and said , " If I hear anymore of that scuffling going on out of you , I am going to fire you." Brooks and Turpin returned to work and later that day were given warning notices signed by Plant Manager Sturken.18 (4) Jolene Justice In January or February , Floorlady Jolene Justice asked Elaine Stewart and Lorena Enloe, in the presence of Lorene Sutton, whether they had signed union cards. Stewart said it "wasn't any con- cern " of Justice , who answered it was "of con- siderable concern because we would probably lose our jobs." (5) Jackie Mull On February 7, on the way home after work, Su- pervisor Jackie Mull said to Georgia Johnson that 's Except for Cole's coercive statements, Brooks' testimony concerning the Turpin antiunion petition is substantially corroborated by other wit- nesses I do not believe that Brooks fabricated the coercive statements she attributed to Cole and credit her testimony in this respect over the contrary testimony of Cole, Sturken, Woods, and Turpin. 19 Alma Beasley was I of about 25 employees in the knit finishing depart- ment, which performed trimming and inspecting , pressing , folding, and bagging operations. Beasley regularly performed production work, but in the absence of Supervisor Dan Stephens assigned work to other employees in the section She also occasionally instructed and assigned work to em- 749 she had heard Johnson had signed a union card that day. Johnson, who had signed a card that after- noon , replied "they might tell you anything." On May 1, Mull asked sewer Marie Cope if she was going to the Union meeting that night and whether she was "with us." Cope said she was for the Union and Mull said, "Well, you'd better think about it . . . the Union can't feed you." (6) Juanita Brooks During an afternoon break , Sleepwear Supervisor Juanita Brooks urged Pat Colosi to sign an antiu- nion petition tendered her by Gypsy Dietz, saying, " Pat, please sign it; if we bring a union in here, Mr. Dansky will close the plant down before he will let us have a union in here." (7) Bill Harper On February 20, Head Knitwear Supervisor Harper notified a number of knitwear employees that they were terminated . An employee asked Harper if they were fired bcause of the Union and he replied, "Yes, no, not altogether." (8) Gerald Elliott In March , sewer Dorothy Burch remarked to Plant Engineer Gerald Elliott , "It looks as if you are firing everybody that is for the union on the Wear- A-Blanket [sleeper ] side." Elliott replied, "Yes, ma'am , we're getting them out of here as fast as we can. Some of them are mighty damn slow, mighty damn slow." b. The Antiunion petitions, letters, and meetings Employees Margaret Turpin , Bonnie Dietz, and Alma Beasley19 solicited other employees at the plant to sign "petitions" that the signers did not want a union at the Sylco plant. Supervisor Juanita Brooks urged Pat Colosi to sign a petition , saying, " Pat, please sign it; if we bring a union in here, Mr. Dansky will close the plant down before he will let us have a union in here." General Manager Cole ordered Ruth Brooks to return a part of a petition torn in a scuffle with Turpin , and, when she refused , declared that "this union stuff" had brought about the termination of the knitwear operation and, if continued, would lead to the closedown of the entire Sylco plant.20 ployees temporarily assigned to the department Like supervisors of other departments, Beasley was paid by the hour and regularly "took up" the production of the piece workers . Other than in assigning work, the record does not show that Beasley took any independent action in dealing with other employees in the section . I consider Beasley a production worker whose occasional assignment of work to other employees was essentially routine in nature I find that Beasley is not a supervisor under Section 2(11) of the Act. 30 Dan Stephens had remarked , upon bringing Turpin and Brooks to the office, "Margaret Turpin is here wanting to see you about the petition " 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In February, Turpin asked Susie Ward to sign a "little paper" that she did not want a union in the Company. Ward refused. A week or two later Tur- pin again asked Ward to sign , saying that most of the employees had signed it and Ward should do so if she wished to hold her job. Ward refused to sign the paper and on March 5 refused Turpin's third request to sign . Turpin said, "Well, I guess that will get your job." Ward was one of a number of em- ployees discharged that day. In February, Turpin asked Doris Pannell to sign the antiunion petition , saying that the plant would not close if enough people signed it . When Pannell remarked that the "petition " was "just a plain piece of paper with words on it," Turpin said, "Well, the main petition is in the office . They are going to sta- ple this one to it." The Sylva "Herald" published a notice on April 4 inviting "all present and past" Sylco employees to attend a "Non-union meeting" at the Sylva Armory to be held at 7:30 p.m. on April 5. A radio an- nouncement by Assistant Plant Manager Wood, re- peated all through the day of April 5, urged every- one to attend the armory meeting. Dan Stephens, Turpin, and Alma Beasley told Ethel Heffner to be sure to attend the armory meeting . Margaret Tur- pin was the principal speaker at the meeting, which was attended by about 50 persons . Linda Dean credibly testified that Turpin said her information came "directly from the Company, that they had said that one side of the plant had closed down, but if the people were for the company that they could come back to work." She also spoke about the clos- ing of plants because of union activity and said the Company "didn't want anybody that had anything to do with the Union." Turpin distributed badges which read, "I would rather fight than join. "21 In April , Reta Shuler asked Helen Davis to read and sign a letter. Davis took the letter and gave it to Ed Stephens after work .22 About April 24, Dan Stephens came to Davis' machine, said he had given the letter to Shuler to get it signed, and he wanted it back . He asked Davis , using vulgar lan- guage, why she had given the letter to her brother- in-law , Wallace Swann, a union supporter. Davis said she did not appreciate his language and would go to the office about it. She added that she had given the letter to Ed Stephens and Dan Stephens declared, "Well, hell, that's worse than ever, that son-of-a-bitch." Davis repeated that she was going to the office . Stephens said he would break her leg if she did so. Davis complained to Don Wood as he walked by and asked him to go to the office with her. Wood said he did not want to get involved. Davis went to Manager Sturken's office and told 11 The possession of a similar badge by an antiunion employee at Mar- lene's Trousdale plant is noted in Marlene Industries Corporation, 171 NLRB 848. n Ed Stephens identified the letter as similar to an antiunion letter published by the Sylva "Herald " Sturken that Stephens had "been out there cussing" her. Sturken said he would see that Stephens ,apologized to her . Sturken spoke to Stephens im- mediately after his conversation with Davis and told him "this wouldn 't happen again, and [he ] wouldn't have it happen in [his] plant." 2. The discharges for low production On February 26 and 27, Don Wood gave written warnings to sleepwear employees Ruth Brooks, Martha Cagle, Mary Sue Smith, Clarice Crisp, and Mary Doris Jones that their work was unsatisfacto- ry because of low production and that they would be discharged if they were not out of "make up" by March 8 .23 These employees did not get out of make up and were discharged on March 8. All five had signed union petitions on January 10 or 11, and Brooks was one of the employees who entered the plant on the morning of January 11 to present the petitions to Manager Sturken . Brooks and Cagle had worked at the plant since the spring of 1967, Crisp and Jones since the fall of 1967, and Smith started work in March 1967 , quit after a month, and returned in November 1967. None of them had been criticized for low production before the warnings on February 26 and 27. Jones, Smith, and Crisp sewed crotches , and Brooks and Cagle serged feet, on the sleepwear production line. Payroll records in evidence indicate that most employees, including crotch and serge feet operators , regularly receive makeup pay. It does not appear that Respon- dent ever discharged any other employee for failing to get out of makeup. Sleepwear employee Susie Birdell Ward was also discharged on March 8, allegedly for not making production on three different jobs. Ward started work at the plant on February 15, 1967. She never made production regularly but twice received boxes of candy for making production. The second time she made production she received a letter of con- gratulations from Respondent. Both Don Wood and Supervisor Jackie Mull assured her that her work was satisfactory when she expressed concern at not "doing [her] work up to what the standard was." Supervisor Virginia Pangle also told her that she "was doing real well." Ward signed a union authorization card and she participated in the January 11 union demonstration. As previously described, Margaret Turpin asked Ward on several occasions to sign an antiunion petition . On the day of Ward's discharge, Turpin asked her, "Susie, you are not planning to sign." Ward said, "No, ma'am," and Turpin remarked, "Well, I guess that will get your job." 0 "Make up" is the sum of money added , if necessary , to an employee's actual piece-work earnings to meet the minimum wage requirements of the Federal wage and hour law Another sleepwear employee, Ella Mae Fisher, was also warned on March 8 to get out of makeup by March 23 Fisher quit before March 23. SYLCO CORPORATION 3. The suspension of Robert Mills, Jr. Robert Mills, a service boy on the sleeper side, solicited employees to sign union cards and par- ticipated in the January 11 union demonstration. On March 20, 1968, Supervisor Jackie Mull asked Mills if he would work overtime and Mills told her no. When Mills left the plant that evening, he helped pass out union papers near the entrance to the plant shipping department . He did so for about 5 minutes. The next day, Don Wood asked him why he had not worked over the day before . Mills said it was not Wood's business. Wood said "it didn't matter, because he knew where Mills was ." He said that the next time he wanted Mills to work over that he "had better" do so. Mills said he did not mind working overtime but he could not do so the day before "or that day either." Wood said Mills was "going to work over , because he was going to find some machines to move." Mills said he could not do so because he had "no way home."24 Wood told him to work over or not to come back the next day. Mills said he would not be back . Later that day, Mills asked Wood if he had changed his mind. Wood said no and that Mills should come back the next morning for his check and termination slip. The next morning , Wood called Mills into his of- fice. He said he did not want people to think he had fired Mills because of the Union and so he was "just going to suspend [Mills] for a week." He gave Mills a suspension slip. Mills did not return to work. 4. The failure to rehire Pat Colosi Pat Colosi, a sewer on the sleepwear side, made production on five jobs and received three boxes of candy from Respondent . Colosi had "a slight alter- cation over machines" with another employee in November 1967 and threatened to quit . She was persuaded to stay by Sturken and Wood . Sturken said she was a good operator and offered to train her on another job. Colosi said she needed a steady job and Sturken assured her that Respondent needed all the operators it had and more, and that it had enough orders on hand to carry through 1968. Colosi signed a union card and also signed a union petition during the January 11 union demon- stration . She received an unprecedented warning some time after the demonstration for being 1 minute late. As previously related , she refused to sign an antiunion petition tendered her by Gypsy Dietz, although Supervisor Juanita Brooks urged her to sign , saying that the plant would be closed if the employees brought a union in. Colosi 's husband died on February 27, 1968, and she told Manager Sturken over the telephone on Tuesday, March 5, that he might want to get a replacement for her as she was planning to take a 751 job at Asheville . The next day , about 6 p .m., Colosi spoke to Don Wood over the telephone . She said she had changed her plans and would be able to return to work . Wood said he was sorry but he had hired a replacement who was coming the next morning . He suggested that Colosi call him the next day to see if the replacement "was going to work out." Colosi called Wood the next day . Wood said the replacement was going to work out fine and he was sorry but that he had nothing else for Colosi to do. Colosi was allegedly replaced on her job as an applique girl by Linda James , an antiunion em- ployee discharged on February 19. James did not report for work until March 11. 5. The discharge of Jeannette Childers Jeannette Childers started work on the knitwear side of the Sylco plant in April 1967. In February or March , she refused to sign a paper tendered her by Bonnie Dietz during a morning break . Childers was transferred to the sleepwear finishing depart- ment on Monday , March 18 , 1968 . Dan Stephens told Childers and several other operators to take Thursday and Friday off because the plant had run out of bags "to put the sleepers in." He told the operators to call back on Monday . Childers called Stephens on Monday and was told the bags had not come in and she should call back the next day. Childers spoke to office employee Emma Henson the next day . Henson "laid the phone down" and then told Childers that Stephens would call her when he was ready for her . A week or so later, Childers' son , Robert, a shipping department em- ployee, asked Don Wood "if there was any chance on him calling my mother back to work." Wood said "he didn 't have anything right then," that there would be more employees laid off before the elec- tion, and "they weren 't going to do anything until that damned election was over with ." Jeannette Childers called the plant office concerning unem- ployment compensation "slips," but she did not ask to speak to Stephens again . Stephens testified that he told Sturken in early April that Childers must have quit because "she hasn 't called in or nothing, and so we might as well terminate her." Childers was sent her termination papers . According to Stephens , all the other operators laid off with Chil- ders called him each afternoon until they were told to report back to work. D. Analysis and Conclusions 1. The termination of the knit operation Respondent 's explanation for the termination of the knitwear operation at the Sylco plant may be summarized as follows : When Marlene opened the " Mills had taken his car in for repairs that morning and had arranged for his father to pick him up after work . Mills on a few previous occasions had refused to work overtime because he had no transportation home 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sylco plant in February 1967, it planned to manu- facture baby sleepers and boys' knit shirts, both lines being new to Marlene's operations. Sales of boys' knit shirts were disappointing and, to keep the knitwear section busy, Vice President Dansky sent in lines of garments manufactured at Marlene's other plants. Sales of knit shirts did not improve and, on December 2, 1967, Dansky discussed the Sylco operations with Vice President Hahn, Comp- troller Gulker, and Accountant Brodsky.2S Gulker presented an analysis of the operations and, after some discussion , Dansky decided to terminate the knitwear side of the plant and to expand the production of sleepers. He telephoned General Manager Cole and Plant Manager Sturken and ad- vised them of his decision. Sturken was instructed not to tell anyone about the decision and to keep the employees at work until after Christmas. About the middle of December, Cole came to the Sylco plant and discussed with Sturken some preliminary aspects of the phaseout of the knitwear side of the plant. On January 16, 1968, Cole notified Sylco's key supervisors that the Company was going to phase out the knit operation because of a lack of business , but that it expected to expand the produc- tion of sleepers. The knit section was thereafter phased out as it completed orders on hand. Gulker's analysis of the Sylco operations,26 and the Hahn letters to Sturken between November 14 and December 12, 1967,27 support the testimony of Gulker and Dansky that the latter decided at the December 2 meeting to terminate the knit opera- tion. I am convinced, however, that this decision was not "final" and that Respondent would have continued the Sylco knit operation but for the overwhelming support of the Union demonstrated by the Sylco employees on January 11, 1968. I note initially that Hahn wrote nothing to Stur- ken after December 12 about the termination of knit operations and that Sturken himself said nothing to anyone at the plant about such a ter- mination . On the contrary, Sturken told engineer Elliott in December that an order had been received for 20,000 dozen SSR children knit shirts and that more were coming in. This improvement in knit business was reflected in Sturken' s state- ment to the employees at a Christmas party that the plant had plenty of work for them to do after the holidays. Sturken said nothing about a termination of the knit operation to key personnel or anyone else when the plant reopened on January 2, 1968. The knit section continued to sew large quantities of SSR garments and the plant received cloth in production quantity during January for the manu- facture of a new line of children's garments known as skat-a-bouts. Unless otherwise explained, it is reasonable to infer that this cloth in production quantity was delivered to the Sylco plant for the manufacture of skat-a-bouts. Indeed, skat-a-bouts subsequently manufactured at the Liberty plant were marketed as if manufactured at Sylco.28 Respondent, however; offered no explanation for the delivery of skat-a-bout cloth in quantity to the Sylco plant but simply asserted at the hearing that Sylco received only 17, rolls of skat-a-bout cloth for the cutting of sample garments.29 Respondent's in- ventory of goods for the Sylco plant, dated January 31, 1968, shows, however, that another 125 rolls of skat-a-bout cloth was on hand as of that date. Although denied by Respondent, the record establishes that these latter rolls of skat-a-bout cloth were shipped out of the plant before the next quarterly inventory. In my opinion, Respondent's efforts at the hearing to disprove the delivery of large quantities of skat-a-bout cloth to the Sylco plant confirm that Respondent intended to manu- facture skat-a-bouts at the Sylco plant in 1968. I note in this connection that the Sylco knit section "Gulker did not name Brodsky as present at this meeting The Hahn letter to Sturken of December 4 supports Dansky 's testimony that Brodsky was present. "Gulker's analysis is subjective in some respects and is not accurate in its allocation of some expenses between the knit and sleepwear operations The General Counsel also asserts that the analysis-for 6-, 9-, and 12- month operating periods- "appears to have been written at one single time, with the same lead pencil , sharpened to the same degree of pointed- ness throughout the document" and, if so , must have been prepared after the December 2 meeting, for the analysis extends to January 31, 1968 Gulker's analysis, whatever its deficiencies , indicates that the knit section operated at a slight profit for the 3 -month period ending October 31, 1967 It would therefore seem to have been prepared in good faith Moreover, ab- sent expert testimony to the contrary , I see no reason for rejecting Gulker's testimony concerning the preparation of each section of the analysis as the support data became available " The General Counsel argues that the November 14 letter grossly overstates the alleged loss on the knit operation , that the December 4 letter is the only "regular" letter in the Hahn correspondence to Sturken and is in effect a "pat" summary of Respondent 's defense , and that the December I I letter does not accurately deal with General Manager Cole 's December visits to the Sylco plant I do not consider that these and other alleged ir- regularities cited by the General Counsel warrant giving little weight to these letters on the issue whether Respondent decided to terminate the knitwear operation on December 2 The General Counsel further argues that Gulker's analysis showing a small profit for the knitwear operation for the 3 -month period ending October 31, the hiring of additional employee throughout November, and the assurances of ample work given employees in November and December , demonstrate , notwithstanding the Hahn let- ters, that no decision was taken on December 2 to terminate the knitwear operation . Respondent claims that hiring was continued in November in hopes that the sale of knit shirts would improve It is not disputed that Gul- ker's analysis shows a profit for the August-October period . I do not con- sider that these matters , and the assurances of work given employees in November and December, warrant discrediting the testimony of Dansky and Gulker concerning the December 2 meeting, but I do consider that they added support to my finding below that improved business caused Respondent to shelve the December 2 decision " Respondent cites one instance where Sylva Manufacturing Corpora- tion handled an order for a garment manufactured at another Marlene plant The fact remains that Sylva 's marketing of some skat-a-bouts manu- factured at the Liberty plant as "Sylva" garments was unusual and Respon- dent has not explained why Sylva, the exclusive sales agent for the Sylco plant, handled all sales of skat-a-bouts for Liberty "According to Howard Schmehl , Marlene 's director of engineering, General Manager Cole instructed him in November 1967 to cost skat-a- bouts for manufacture at the Liberty plant Respondent asserts that Cole generally supervises the cutting of samples for new lines of merchandise and that the 17 rolls of skat-a-bout cloth were sent to the Sylco plant in January because Cole would be there to supervise the phasing out of the knit operation SYLCO CORPORATION in January 1968 had a trained force at hand for such manufacture and needed only some additional equipment in order to begin the manufacture of skat-a-bouts . The Liberty knitwear department was not established until several months later. I find from the foregoing circumstances that Respondent did not intend to terminate the Sylco knit operation when the Sylco plant reopened after the Christmas holidays. On January 11, 1968, how- ever, about 85 percent of the Sylco employees stayed outside the plant while a delegation headed by a union official sought to present Manager Stur- ken with evidence that the Union represented a majority of the employees for purposes of collective bargaining .30 A few days later , on January 16, General Manager Cole advised key personnel that the knitwear operation would be terminated. At this time , orders for about 20,000 dozen SSR's remained to be filled . The Liberty plant sub- sequently manufactured the skat-a-bouts which I have found were intended for manufacture at Syl- co. For the foregoing reasons, the background of un- fair labor practices at Marlene 's other plants, and Respondent's coercive campaign to defeat the Union at the May 2 election , particularly the threats of plant closing and General Manager Cole's statement to Ruth Brooks on February 27 ascribing the termination of the knit department to the employees' union activity, I find that Respond- ent discriminatorily terminated the knitwear opera- tion, in violation of Section 8(a)(3) and (1) of the Act. 2. Interference , restraint, and coercion I have found : ( 1) Assistant Manager Wood told Georgia Johnson that the union girls were "going to have it hard , whether they made production or not," and that "the company would move before they would have a union "; ( 2) Wood told James Lamb before the election of May 2 and on election day that they would be out of a job if the Union got in; (3) Supervisor Dan Stephens told his brother Ed that his union activity would get the employees fired and that Ed would be the "next" employee fired; ( 4) Stephens told Richard Sitton in April that just about everybody would have been working but for the Union; ( 5) Stephens told James Nicholson that he would probably be out of a job if he "kept messing around with Ed Stephens and the boys"; (6) Stephens told Joseph Thompson that there would be no more orders to sew "if we didn't quit with this union "; ( 7) Stephens told Robert Childers that the Company would close the plant before it 30 A comparison of the employees who signed union petitions on January 10 and I I and of the employees on Respondent's payroll of February 2, 1968, shows no concentration of union strength on the knitwear side of the plant . As only a handful of employees reported for work as usual on the morning of January 11, Respondent had reason to believe that the Union 753 would "put up" with the Union ; ( 8) Stephens told Charles Queen that a lot of people would be hurt if they continued to support the Union , and that the Company might close the plant down because of the employees ' union activity; ( 9) General Manager Cole remarked to Ruth Brooks that the knitwear side had been laid off because of the employees' union activity, that the sleepwear side would also be laid off "if you all don 't stop it," and that he would close down the plant and move it to another state ; ( 10) Floorlady Jolene Justice told three em- ployees that their signing of union cards was "of, considerable concern because we would probably lose our jobs"; ( 11) Supervisor Juanita Brooks urged Pat Colosi to sign an antiur,on petition, say- ing that "Mr. Dansky will close the plant down be- fore he will let us have a union in here"; ( 12) Su- pervisor Harper, when asked by a group of discharged employees if they were fired because of the Union, replied , "Yes, no, not altogether"; and (13) Plant Engineer Elliott told Dorothy Burch that the Company was getting union supporters out of the plant "as fast as we can ." The foregoing state- ments were to the effect that employees had lost or would lose their employment in reprisal for union activity, and hence were violative of Section 8(a)(1) of the Act. Dan Stephens told Robert Childers that he might "move up" if the Union lost the election, and he told Richard Sitton that the Company would give the employees raises if they left the Union alone. I find that the foregoing remarks by Stephens con- stituted promises of benefit violative of Section 8(a)(1) of the Act. Wood asked Georgia Johnson if Dona Thomas- son had anything to do with the Union and re- marked that he had been told that Johnson herself had signed a union card; Wood asked Thomasson how she felt about the Union before rehiring her; and, on the day of the Board election, May 2, Wood asked Thomasson how she and Johnson were going to vote at the election . Wood also asked James Lamb how he felt about the Union ; he asked Helen Davis why she had attended a union Bingo party when she had not been at a nonunion meet- ing; he asked Thelma Cooper if she was "for the union or for the plant"; and he asked Robert Chil- ders whether he had thought "about going against the Union." Jolene Justice asked Elaine Stewart and Lorena Enloe whether they had signed union cards. Jackie Mull asked Marie Cope if she was going to a union meeting and whether she was for the Company . As the foregoing inquiries concern- ing union activity or sentiment occurred in a con- text of coercive threats and promises, I find them violative of Section 8(a)(1) of the Act. had considerable support throughout the plant The phasing out of the knit- wear operation thus served not only to rid the plant of one highly organized group of employees but also to put the remaining employees on notice that Respondent might well shut down the entire plant if it went union 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supervisor Juanita Brooks urged Pat Colosi to sign an antiunion petition tendered her by Gypsy Dietz, telling her that the plant would be closed down if organized. General Manager Cole ordered Ruth Brooks to return a part of an antiunion peti- tion torn in a scuffle with Margaret Turpin, and, when she refused, declared that "this union stuff" had caused the termination of the knitwear side and if continued would lead to the closing of the entire plant. A radio announcement by Assistant Manager Wood, broadcast throughout a day, urged everyone to attend an antiunion meeting . Supervisor Dan Stevens attempted to recover an antiunion letter prepared by himself from Helen Davis. I find from these facts that Respondent abetted the activities of employees opposed to the Union, in violation of Section 8(a)(1) of the Act. I further find that Respondent is chargeable under Section 8(a)(1) for the statements of these employees that the Company would not employ union supporters and that the Company would rehire the terminated knit- wear employees if they showed that they were for the Company. 3. The discharge of sleepwear employees for low production Ruth Brooks, Martha Cagle, Mary Sue Smith, Clarice Crisp, and Mary Doris Jones were warned and discharged for failing to make production dur- ing a period when Respondent was discriminatorily discharging knit operators . Brooks was in the group which entered the plant on January 11, 1968, to seek union recognition and the others participated in the demonstration outside the plant. Respon- dent's supervisors abetted the circulation of antiu- nion petitions by employees opposed to the Union and themselves interrogated employees concerning their union sympathies . Plant Engineer Elliott re- marked to Dorothy Burch that Respondent was getting rid of low producing union supporters on the sleepwear side "as fast as we can." It thus ap- pears that Respondent knew or suspected that the discharged sleepwear employees were union ad- herents . Respondent's explanation that it had production bottlenecks on the crotch and serging feet operations on the sleepwear side and that it discharged these hitherto acceptable employees in order to increase efficiency and output would be more plausible but for the timing of the discharges and if Respondent had not required these em- ployees to get out of makeup. It was the exception rather than the rule for Sylco employees to make production , including crotch and serge feet opera- tors, and Respondent's insistence that the dischar- gees get out of makeup was without precedent. I conclude that Respondent discharged Brooks, Ca- gle, Smith , Crisp, and Jones as part of its coercive campaign to discourage support of the Union, in violation of Section 8(a)(3) and (1) of the Act. I also find that Susie Birdell Ward was discharged on March 8 , not for failing to make production, but because she was a union supporter. Ward had received two boxes of candy and a letter of con- gratulations for making production on one job. Assistant Manager Wood and Supervisors Mull and Pangle had assured her that her work was satisfactory. She stayed outside the plant on Janua- ry 11 and signed a union petition. She was sum- marily discharged when she declined for a third time to sign an antiunion petition tendered her by Margaret Turpin, who said, " Well, I guess that will get your job." I have found that Respondent is an- swerable for Turpin's antiunion activity. As Ward had been regarded as an acceptable employee prior to her refusal to sign an antiunion petition, I con- clude that Respondent discriminatorily discharged Ward, in violation of Section 8(a)(3) and (1) of the Act. 4. The suspension of Robert Mills, Jr. Mills explained to Assistant Manager Wood on March 21 that he could not work overtime that day because he had no transportation home . Although Wood knew that Mills usually wanted overtime work and had worked overtime "on numerous oc- casions,"31 he insisted that Mills work overtime that evening . Mills had spent a few minutes the previous evening distributing union leaflets before the plant. In his conversation with Mills on March 21, Wood commented that he knew why Miles had not worked overtime the day before . On March 22, Ward told Mills he was suspended for a week rather than discharged because Wood did not want the employees to think Mills had been discharged for union activity . I find from these circumstances that Wood would not have suspended Mills for refusing to work overtime but for his union activity. 5. The refusal to hire Pat Colosi Pat Colosi had a very good production record as a sleepwear operator. Don Wood nevertheless refused to rehire her, telling her on March 6 that he had a replacement coming in the next day and on March 7 that the replacement had worked out fine. Linda James, the alleged replacement , did not start work until March 11. Colosi had participated in the January 11 demonstration in support of the Union's request for recognition . She refused to sign an an- tiunion petition although urged to do so by Super- visor Juanita Brooks . I find from the foregoing facts that Wood had work available for Colosi when she spoke to him on March 6 and that he refused her employment because she was a known union sym- pathizer. 31 Wood so testified SYLCO CORPORATION 6. The failure to reemploy Jeannette Childers Despite her refusal to sign an antiunion petition, Childers was transferred to the sleepwear side after the termination of the knit operation . She was laid off a few days later because of a shortage of shipping bags . Other laid-off operators called back on successive days until notified to return to work. Childers inquired about coming back to work only the first 2 days of layoff. I find that Childer's failure to call again warranted Respondent in believing that Childers had quit . I conclude that Childers was not denied reemployment in violation of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(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 the acts and conduct herein found viola- tive of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act, which unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. It has been found that Respondent discrimina- torily terminated the knitwear operation . I shall therefore recommend that Respondent offer im- mediate and full reinstatement to the employees discharged as a consequence of the discriminatory termination to their former or substantially equivalent positions at the Sylco plant , without prejudice to their seniority or other rights and privileges , and that Respondent make these em- ployees whole for any loss of pay suffered by reason of the discrimination against them from the dates of their discharges until offered reinstatement.32 It has also been found that Respondent discriminatorily discharged sleepwear employees Ruth Brooks, Martha Cagle , Mary Sue Smith , Clarice Crisp, Mary Doris Jones, and Susie Birdell Ward; that Respondent discriminatorily refused reemployment to sleepwear employee Pat Colosi; and that Respondent discriminatorily suspended service boy 84 It is uncertain , of course , whether Respondent but for the employees' union activities would have found it necessary at any time to reduce its operations so as to require the discharge of all or some of the dis- criminatees . I note in this connection that it is undisputed that the Marlene operations have steadily expanded and that the Sylco plant had the person- nel and equipment to make various garments manufactured by Marlene In any event, any doubt concerning the continued employment of the dis- criminatees should be resolved against Respondent as the wrongdoer. I 755 Robert Mills, Jr., for 1 week. I shall therefore recommend that Respondent offer full and im- mediate reinstatement to these employees, except for Mills, to their former or substantially equivalent positions at the Sylco plant, without prejudice to their seniority or other rights and privileges, and that Respondent make these employees, including Mills, whole for any loss of pay suffered by reason of the discrimination against them. The loss of pay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumb- ing & Heating Co., 138 NLRB-716. Upon the foregoing findings of fact and conclu- sions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the follow- ing: RECOMMENDED ORDER Sylco Corporation , a division of Marlene Indus- tries Corporation , its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a)' Discharging, refusing to employ, suspending, or otherwise discriminating against employees in order to discourage membership in or support of International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. (b) Threatening employees with discharge for engaging in union activity. (c) Coercively telling employees that other em- ployees had been terminated because of the Union and because of their union activities. (d) Threatening employees with closing or mov- ing the plant should they select the Union as their collective-bargaining representative. (e) Promising employees benefits if they refrain from union activity. (f) Encouraging and assisting the activities of employees opposed to the Union, including the cir- culation of antiunion petitions and the promotion of antiunion meetings. (g) Coercively interrogating employees concern- ing their own or other employees ' union ac`';16es and sentiments. (h) In any other manner interfering with, restraining , or coercing employees in the exercise of their rights under the Act. 2. Take the following action designed to effectu- ate the policies of the Act: (a) Offer the individuals listed in the complaints, as amended at the hearing, but excluding Jeannette Childers and Barbara J. Phillips,33 immediate and therefore find that the discriminatees would not have been terminated for lack of work, and, accordingly , that it is appropriate to award them backpay until offered reinstatement ' I have found that Jeannette Childers was not discriminatorily refused reemployment. The General Counsel alleged but offered no evidence to show that Barbara J . Phillips was discriminatorily denied reemployment on January 23, 1968. 427-835 0 - 74 - 49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , dismissing if necessary all new employees hired since January 16, 1968, and make them and Robert Mills, Jr., whole for any loss of earnings suffered by reason of the discrimination against them , in the manner set forth in "The Remedy" section of this decision. (b) Notify any discharged employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (c) Preserve and, upon request , make available to the Board or its agents, for examination and copying , all payroll records , social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its place of business in Sylva, North Carolina, copies of the attached notice marked "Appendix."34 Copies of said notice, on forms pro- vided by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- s. In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading " Posted by Order of the Na- secutive days thereafter , in conspicuous places, in- cluding all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.35 IT IS FURTHER RECOMMENDED that the Board reserve to itself the right to modify the backpay and reinstatement provisions of this Recommended Order, if made necessary by circumstances not now apparent. IT IS FURTHER RECCOMMENDED that all allegations of the complaint not specifically found to be in violation of the Act be dismissed. CASE 11-RC-2662 I find that all employees found herein to have been discriminatorily discharged or refused reem-, ployment retained their status as employees of Respondent and hence that they were eligible to vote in the election conducted at Respondent's plant on May 2, 1968. I therefore recommend that the challenges to their ballots be overruled, and that these ballots be opened and counted. tional Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 's In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith."