Sew-Magic, Inc.

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sew-Magic, Inc. and International Ladies' Garment Workers' Union, AFL--CIO. Case 1 1-CA-4000 August 18, 1970 DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND JENKINS On April 29, 1970, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion . He also found that the Respondent had not engaged in certain other unfair labor practices al- leged in the complaint and recommended that such allegations be dismissed . Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision together with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner 's Decision , the exceptions and briefs, and the entire record in the case , and hereby adopts the findings,' conclusions , and recommenda- tions of the Trial Examiner.' 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 , Sew-Magic, Inc., Greenville, South Carolina, its officers, agents, suc- cessors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. ' These findings and conclusions are based , in part, on credibility deter- minations of the Trial Examiner, to which the Respondent has excepted. Having carefully reviewed the record, we conclude that the Trial Ex- aminer's credibility findings are not contrary to the clear preponderance of all the relevant evidence Accordingly , we find no basis for disturbing those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (CA 3). ' Member Jenkins would award backpay to Clara Butler , Irene Garrison, and Inez Mahaffey from the time Respondent refused to reinstate the other six unfair labor practices strikers who had been replaced , in accordance with his dissent in Southwestern Pipe , Inc., 179 NLRB 364. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner : This proceed- ing, brought under Section 10(b) of the National 184 NLRB No. 115 Labor Relations Act, as amended ( 61 Stat. 136), herein called the Act , was heard at Greenville, South Carolina, on December 9, 10, and 11, 1969. The complaint , dated October 28, 1969 , and based on charges filed and served on September 11 and on October 16, 1969 , was issued by the Regional Director for Region 11 (Winston -Salem, North Carolina), on behalf of the General Counsel of the National Labor Relations Board ( herein called the General Counsel and the Board). The complaint al- leged that Respondent had engaged in and was en- gaging in unfair labor practices by discharging cer- tain named employees on July 15 and 16, 1969, and by certain other specified conduct in violation of Section 8(a)(1) and ( 3) of the Act. In its duly filed answer, Respondent denied the commission of any unfair labor practices. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT At all times material Respondent has been a South Carolina corporation with a plant at Green- ville, South Carolina , where it is engaged in the manufacture of ladies' garments. During the 12 months preceding issuance of the complaint, which is a representative period of time, Respondent manufactured, sold, and shipped from its plant in Greenville , South Carolina, goods valued in excess of $50,000 to points directly outside the State of South Carolina. During the same period of time Respondent also purchased from points directly outside the State of South Carolina goods valued in excess of $50,000. At all times material Respon- dent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION At all times material International Ladies' Gar- ment Workers' Union, AFL-CIO, has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues In the spring of 1969' the Union was engaged in an organizing campaign at Respondent 's Greenville, South Carolina, plant. Among the employees who were active in supporting the Union were Louise Aiken and Modelle Moore . The major issues in the case are whether ( 1) the discharge of Aiken on July 15 was discriminatory within the meaning of Sec- tion 8(a)(3) of the Act; ( 2) a written warning received by Moore on July 11 about her work vio- ' All dates are in 1969 unless otherwise noted. SEW-MAGIC, INC. lated Section 8(a)(1) of the Act ; and (3) a group of nine union adherents were discharged and/or refused reinstatement on July 16 in violation of Section 8(a)(3) of the Act. B. Moore's Warning Modelle Moore worked for Respondent from Oc- tober 1968 to July 16, 1969, the last few months as a stockgirl . As such she picked up finished gar- ments from the pressers , marked them down on her card by the dozens, carried them to her table where she sorted them by lot, style , size, and color, tied them in bundles of six, and boxed them ready for shipment . The performance of this job required no judgment , discretion , or decisionmaking since the lot, style , and size of the garments were shown by little tags attached to them . The only requirement for the job was the ability to read and to count. About mid-June Moore began attending weekly union meetings, signed a union card , and became active in promoting the Union among the em- ployees . To this end both in the plant and in the parking area she talked to about 35 employees ask- ing them to sign cards and to attend union meetings. Some signed, some refused . According to Moore's undenied and credited testimony, on one occasion in late June she was observed by Plant Manager Ed Slusser and Sewing Supervisor Mary McDonald talking to Union Organizer Bob Dehill in the parking area,2 where Dehill on more than one occasion had handbilled the plant . On July 11 Moore along with Hattie Garrison and several other employees wore union smocks at work .3 According to Moore's undenied and credited testimony, on this occasion she heard Supervisor Orene Car- penter ask Garrison , "Hattie, did you and Modelle go to the same welfare department to get your jackets?" Believing that Carpenter meant for her to hear the remark to Garrison too, Moore told Car- penter "If she would ask ... about it during lunch hour, break time or after working hours , that (they) would tell her about it. ..." Carpenter replied, O.K." As indicated, on July 11 Moore received a writ- ten warning as follows, admittedly the first and only written warning ever given to an employee by Respondent: This is an official warning about your job per- formance. You were given verbal warnings on at least four time [sic ] previously by the supervision of this company , and your performance has not improved satisfactory [sic]. ' Moore testified that while she and Dehill were talking she saw Slusser and McDonald looking in her direction . Neither Slusser nor McDonald de- nied seeing Moore and Dehill talking together. 3 The smocks were about fingertip length made of material having small round ILGWU insignia interspersed in the pattern " McDonald and Slusser, testifying at the call of Respondent, both con- 925 You were given a warning on July 7 by me, about your count being wrong and work mixed by sizes and styles. Your count of last evening (7/10/69) was mixed by sizes in packs, amount in bundle, and wrong sizes in boxes. This is your last warning. Any further unex- cusable [sic] errors will result in your im- mediate discharge. Ed Slusser Pit. Mgr. According to Moore's testimony Carpenter was present in Slusser's office on the occasion that he gave Moore the written warning . At this time Slusser told Moore that it was her last warning; that she had been given warnings before . Moore asked by whom and he said by himself and others . He said that Carpenter had warned her. At this point Moore said , "Orene, you 've never warned me about bad work.' Please don't say it because you'll be telling a lie." According to Moore Carpenter started to say, "Well . . . " and did not finish.' Moore further testified on direct that not only had she had no oral warnings about her work but that on more than one occasion Carpenter had- complimented her on her work .6 She also testified on direct credibly and without denial that her su- pervisor, Jim Howard , when she was in the cutting department had told her that he wished he could keep her in the cutting department but that they just did not need three girls there. On cross-ex- amination she testified that she had asked Slusser for a raise and frankly admitted that his reply was that "he was going to give (her) a raise out of the window or out of the door." She did not take this remark to be a compliment. Moore also admitted on cross-examination that Slusser may have complained once or twice that something was not right-that when he was helping to ship out once or twice he may have looked over and said, "This goes here " and that would be the end of it . According to Moore there was "nothing unusual about that." While admitting that Slusser may have once or twice held up a bundle for her to see and say that it belonged some place else she de- nied that Carpenter ever did that. In a sworn state- ment however she had said that "from time to time Slusser and Carpenter would walk through and hold up a bundle and say it belonged elsewhere, and then go through." In any event , according to her further testimony , she never knew if any of the mistakes called to her attention were the result of firmed Moore's testimony that she had protested to Carpenter that the latter had never warned her about her work " Carpenter testified that she told Moore , " Now, Modelle , you know that you have been warned repeatedly about your job and about the way it is being performed." In her testimony Carpenter denied this. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her work or not since she had several different peo- ple helping her,' on some occasions two at the same time. Besides McDonald, Slusser , and Carpenter testi- fying on behalf of Respondent about the Moore matter, Respondent also called as witnesses to testi- fy employees Betty Greene and Pat Falacara, the latter being the shipping and receiving manager of the Ashville Manufacturing Company of Ashville, North Carolina .8 Respondent also called one Lew Skop, a consultant to both Ashville Manufacturing Company and Sew-Magic, who had been hired as such by Howard Ginsberg of Paragon Uniform Company. From Respondent's testimony it would appear that beginning in Marche and continuing through April. May, June, and early July, Respondent was experiencing an inordinate number of mistakes of the nature described in the July 11 written warning to Moore . According to Falacara 's testimony, in the early spring when he got information from the receving clerk at Ashville Manufacturing Company that the finished goods were coming in " messed up" he directed him as follows: I told him that when the finished goods were received the next day not to open the cases, that I would want to receive it with him together , and I did just that . When the truckline brought the merchandise in the next day, we open the case together and I per- sonally inspected the bundles. When I saw what was happening, I called Ed Slusser at Sew-Magic and I stated to him what I had found , and asked him if he could do anything about it because it was proving quite a headache to us. The matter was so serious that Skop also began hearing about the problem from the New York of- fice as early as March and was asked to see what could be done about it . On one of his visits to the Ashville plant when he asked Falacara why merchandise was stacked up in the aisle rather than in the bins, Falacara told him that he had not had time to check it in ; that lately he could not "accept a shipment without going through every package of the quantity or size in the bundles ." Falacara pleaded with Skop to "please do something about the errors ... in the shipment from Sew-Magic." Skop discussed it with Plant Manager Slusser telling Slusser that he had to do something about the problem . Other than this, what Skop or anyone else in management did about this matter from March until June , except for some claimed verbal warnings to Moore from Slusser and Carpenter , does not ap- pear. In June James C. Brendel was hired by Howard Ginsberg on Skop's recommendation as general manager of both the Ashville Manufacturing Com- pany and Sew-Magic plants . One of Brendel's pri- mary assignments in his new job was to straighten out Respondent's shipping department . Skop told Brendel to discuss the matter with Slusser and take care of the problem . He also asked Brendel if he knew someone "to recommend as assistant shipping manager." Brendel mentioned a few names but nothing ever materialized. Brendel and Slusser assured Skop that they would correct the problem . This apparently was during a visit by Skop and Brendel to the Greenville plant shortly after Brendel was hired . This they did, according to Skop , in July when the plant took in- ventory . When asked on cross-examination what they did to correct it he testified , "I believe they ... replaced the person." 10 When asked why it took Respondent from March to July to do something about the matter Skop testified: Well, I cannot tell you why ... but actually usually any person that does a job is instructed and asked-given a chance, if possible , and, of course , if it gets to the point it is impossible to, this person finally you get just fed up, and sometimes you don't have somebody to replace immediately, and it takes time to train a new person in a job. On several more attempts the General counsel was no more successful in getting Skop to specify any reason why it would take 4 months to come up with a recomendation to correct the problem . Nor was the General Counsel any more successful in getting a definite answer out of Skop as to how long it would take to train somebody to do the work in question . Inferring that the job was complex, Skop testified that it could take 3 months, 6 months, or more to train a person for it . Notwithstanding this testimony Skop then finally admitted that the work in question was "a relatively minor job" and called for the minimum legal wage. According to McDonald 's testimony she took in- ventory during the July 4 vacation period and found numerous mistakes in the finished work of Moore . On the Monday morning following the 7 Slusser in his testimony on cross-examination named four employees (Harriet Kaye , Doris Haynes, Marvalee Ashworth, and Hattie Garrison) who had from time to time helped Moore in her work According to Slusser it would be a fair statement to say that one of these women helped Moore on the average a couple of times a week ",Ashville Manufacturing Company presumably is owned by the same in- terests that own Sew-Magic-apparently Paragon Uniform Company of which one Howard Ginsberg is president Ashville Manufacturing Com- pany stocks and apparently acts as the sales agent for the finished product of Sew-Magic Presumably about the time Moore began working as stockgirl 1p On redirect examination when he was asked by Respondent 's counsel if he had any actual knowledge as to what happened to the employee who was performing the poor work in the shipping department he answered, "I was never interested." Obviously nettled , Respondent's counsel said, "Answer my question " and restated the question at which time Skop an- swered that he understood that Moore got a warning SEW-MAGIC, INC. 927 completion of the inventory she and Slusser were standing adjacent to where Moore was working. McDonald said , "Ed, you remember during vaca- tion , I had an awful lot of mixed up work here." We've got to do something about this ... I found sizes mixed , I found piles mixed , lots mixed, and it was terrible." Slusser said , " I know. You told me." He then addressed himself to Moore , "Modelle, I have told you and told you about this work being mixed up here . Now it has to straighten up and get better." According to McDonald , Moore said, "Well, Ed , I do the best I can." According to Slusser 's testimony , having been apprised by McDonald of mistakes she found dur- ing inventory , he went to see Moore early Monday morning to tell Moore about the mistakes they found and happened to run into McDonald who was standing where Moore was working. About what he told Moore at this time he testifies as fol- lows: Well, I told Modelle that it was about the mixed-up in stocks that we had had ready to ship out that we took on inventory and we told her that she had been warned repeatedly be- fore by Orene . I warned her myself" I said, "Now I am giving you another warning. I want you to know and understand the seriousness of this warning and of the mixup in the different styles and sizes; that I have got complaints be- fore from Pat Falacara out of Ashville." Slusser also told Moore at this time that because "she was the one that was in charge of this ... it was up to her to make sure that she has her work right, that all she has to do is just look at the tags and count." According to Slusser's further testimony, between the visit by Brendel and Skop to Sew- Magic in June and Brendel 's next visit which was on July 16, they had more than one telephone con- versation about the shipping problem at Greenville. One particular one was on Tuesday after July 4. about this Slusser testified that Brendel was com- plaining about the mixup in sizes, styles, et cetera, they had found when they took inventory at Ash- ville. Slusser said that they had found the same thing in Greenville . Brendel said that they had to do something about it . Slusser replied that he had al- ready done something-that he had given the girl in charge of this operation an oral warning the day be- fore . Brendel then told Slusser that since he had given her the warning he was to make sure that he got "personally invovlved " to which Slusser replied that he was personally involved now that he had started to check every carton himself the day be- fore. As indicated , Slusser in his testimony had named four employees who from time to time had helped Moore in her work. After considerable equivoca- tion Slusser finally admitted on cross-examination that the mistakes attributed to Moore could have been made by the employees who were helping her. Regarding the circumstances of the written warn- ing to Moore Slusser testified as follows: Well, from the telephone conversation with Mr. Brendel , and Pat Falacara , it was decided that I was going to count every box that was packed starting after vacation and so I was on every box that was being packed after vaca- tion, and Johnny Samuels helped too. Some- times Johnny does it himself13 but this particu- lar time, I started packing every box counting the ones that went into the boxes , and then on the 10th , when we were packing them, the 10th of July, which was Thursday , we found mistakes that night as we were packing them, getting them ready to be shipped out. And through Orene, I told her to go get her , and she went and got Modelle and brought her into the office, and Mary was already in the office, and she came in, and I told her to sit down in the chair . And she elected to stand up , and I told her that I was going to give her a warning, a written warning because previously every time I told her about mixups and everything, it didn't seem to get that much improved or that much better. I had taken enough of it . The last resort now was to "give you a written warn- ing. 1/ On the foregoing evidence alone (and there is ad- ditional evidence as will be seen ) I would have no hesitancy in finding that Moore 's written warning was, as alleged by the General Counsel in the amended complaint, directed to her because of her union activity and as such interfered with, re- strained, and coerced her in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) thereof. The active part that Moore played on behalf of the Union has been noted . That Respondent knew or suspected that Moore was a union protagonist is demonstrated by Slusser's and McDonald's having seen her talking to the union representative on the parking lot and by her having worn a union smock on July 11 with the resulting interrogation of Hattie Garrison by McDonald about it. A few days later, as a culmination of several months of sup- posedly unsatisfactory performance ( which Moore supposedly had been repeatedly warned about and which supposedly was of such importance to Respondent as to have had the New York office " She had previously testified that during the inventory she had told Slusser that she "was finding a lot of mistakes" in the work 12 As to how many times he warned Moore, Slusser testified that he could not be specific but estimated that it was "at least three or four or five times." "Carpenter testified that Samuels had many jobs in the plant and that one of them was to see that all work was properly packed by lot, size, and so forth before it went out to Ashville If there were any mistakes in this respect it was his job to catch these mistakes She also testified that Slusser frequently helped Samuels in this work and that they both were responsible for catching and correcting such errors. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request its consultant, Skop , to look into it as early as March ) Respondent finally took action. And what was the action ? Another warning to Moore! Not a written warning but an oral one . A written warning was yet to come. Notwithstanding Skop 's initial attempt to imply that the reason Respondent had taken no action for some 4 months to correct the shipping problem was because of the difficulty or length of time it would take to be able to train a replacement for Moore, it is clear ( as he later admitted ) that her job was not an important job and that the only skills it required (as testified by Slusser) was to be able to read and to count. Nor is this 4-month failure to correct the problem by replacing Moore if her work was so un- satisfactory any more adequately explained by Respondent than a number of other questions that the evidence raises . For example , how could Respondent know that the mistakes found in the shipments of Ashville were not made by the women assigned to help Moore a couple of times a week? And wouldn 't this be a natural assumption on the part of Respondent particularly if, as Skop tried to imply, the job was so complicated that it took 6 months to train a person to do it ? In any event why didn't Respondent make any effort to find out if the mistakes were attributable to Moore's helpers? And why wasn 't Samuels, whose duty it was to check all shipments to Ashville, also warned about his obvi- ous failure to catch the errors that were getting through to Ashville? Was this for the same reason that Respondent made no attempt to ascertain whether Moore 's helpers were making the errors? And why, for the first time in its history, the written warning?14 Furthermore , why, if the matter was im- portant enough to have New York specifically request Skop to do something about it would he be so vague and uninformed as to the specifics of the job in question and the person in it explaining that with such matters he does not "get involved" and does not "interfere." Why would he not get in- volved or interfere in a matter which New York deemed important enough to ask him to correct? Why was Slusser told to get "personally involved" in the problem? As important as it was would Slusser need any such admonition ? And what really was meant by the term "personally involved"? And lastly, why were the shipping errors coming from Sew-Magic still pretty bad at the time of the hear- ing, as testified by Falacara, when Skop claimed they had been corrected at the tme of the July in- ventory-on his first version by the replacement of the employee at fault and on his second version by the employee having been given a warning? 14 The short answer to this question is obvious and indeed Slusser ad- mitted on cross-examination that the written warning to Moore was to be a recorded manifestation of someting given her in case of future action on the part of Respondent against her. In the larger sense , however, the question remains unanswered. Why, after five warnings by Slusser and three or four by Carpenter from early spring on, were any additional warnings, oral or written , needed to justify action by Respondent on this matter'' On the whole , the failure of Respondent's evidence to supply satisfactory explanations for the foregoing questions ( among others ) in my opinion at the very least points to an attempt on the part of Respondent to utilize a pretext upon which to set up Moore for discharge . At the most it supports an inference that not only did Respondent attempt to utilize a pretext but that it attempted to build the pretext upon which it intended to rely . In this con- nection the additional evidence I have alluded to becomes significant . This evidence was adduced in substance as follows through Brendel who was called as a witness by the General Counsel and who at the time he testified was no longer an employee of Respondent, having left under circumstances ap- parently not particularly amicable. When Brendel made his first visit to the Green- ville plant with Skop, among other things the Union 's organizing effort in the area was discussed. 15 Slusser brought the subject up conced- ing that Respondent would "have to deal with them in the future" but maintaining that Respondent was "not ready yet." In early J my Slusser called Brendel at Ashville and told him that he knew "one in- dividual in the plant that ... was the instigator of the Union and the person that was trying to or- ganize." That person was Modelle Moore . Brendel and Slusser discussed at this time what to do about it but no course of action was agreed on then. After this conversation with Slusser , Brendel called Skop in Pennsylvania and the two discussed ways and means to combat the union activities and to eliminate Moore . The plan they decided on was to have Slusser mix up some of Moore's finished work and give her an oral warning . In the meantime Shipping and Receiving Manager Falacara at Ash- ville was to call Slusser and complain about the mixup in the work from Greenville and then follow up with a memo to Slusser which was to be the basis of a written warning to Moore . According to Brendel 's further testimony , a few days later Slusser informed him that he had given Moore an oral warning and a written warning which Brendel claimed to have read later. In their testimony Skop, Slusser, and Falacara are denied participating in any conspiracy leading up to Moore's written warn- ing. Respondent attacks Brendel 's testimony for its "obvious lack of credibility" as illustrated by con- flicts in it regarding the sequence and timing of various telephone conversations between him and Slusser about the Moore warnings and because of Brendel 's bias due to the "less than pleasant cir- cumstances" of his leaving Respondent and 15 As early as May, according to Skop's testimony , Slusser had informed him that the Union was active at the Greenville plant-"that there were leaflets being handed out." In his testimony Skop denied that Slusser had asked him what he should do to be able to handle the matter and testified in this connection that Slusser told him that he had retained counsel . Later, following Skop's penchant for inconsistent testimony , Skop testified that when Slusser informed him about the union campaign he also "wanted to know what to do about it." SEW-MAGIC, INC. 929 because of the Union 's commitment to see that he got employment if his participation in the hearing resulted in his being blacklisted 11 For these reasons Respondent contends that Brendel 's testimony "should receive little or no weight in comparison to the impeached , consistent, straightforward and truthful testimony given by the Respondent's wit- nesses. " Conflicts in dates and the timing of specific telephone conversations out of numerous such mat- ters do not appear to me to be as important in weighing credibility as conflicts in more substantive matters . For instance, it seems to me much more serious for a witness to give conflicting testimony as to what was said on a particular subject as distin- guished from when it was said . By this I do not mean to say that any kind of conflict should be disregarded in weighing credibility . But realizing that human memory is not perfect (any more than is human rectitude ) one must choose and weigh to see wherein lies the least fault . In my opinion, Brendel 's testimony on the Moore matter is clearly more worthy of credence than is Respondent's ver- sion. 17 Not only were there conflicts of substance in both Skop's and Slusser's testimony , it was also marked by equivocation , evasiveness , and an obvi- ous lack of candor . Indeed, Skop 's evasiveness was so pervasive that , as shown , it demonstratively ir- ritated Respondent 's counsel . Accordingly, I am inclined to believe and find that , whether in exactly the manner testified by Brendel or not, Respondent not only decided to utilize a pretext to set Moore up for discharge but actually took steps to fabricate the pretext . 18 Accordingly, I find , as alleged, that Moore's written warning was given to her for par- ticipating in union activities and thus violated Sec- tion 8 (a)(1) of the Act. C. Aiken's Discharge Louise Aiken worked for Respondent as a sewing machine operator from April 1968 until July 15, 1969, when she was discharged . She took part in the union campaign , attending meetings and signing a union card. She also attempted unsuccessfully to get three other girls to sign cards in the plant and some seven or eight in the parking lot. On Friday, July 11, she was among the union adherents who, like Modell Moore , wore union smocks at work. According to her testimony had been compli- mented by McDonald who had said " I know you can do it . You are a good operator." On Thursday and Friday , July 10 and 11, Aiken was engaged in front sewing of lavender jackets, her normal sewing operation , and one of the initial sewing operations on a garment. She did not work on Monday , July 14 , but did on July 15 working on the lavender material until about 2 p.m. when she was given other work to do . About 2:30 p .m., ac- cording to Aiken 's testimony, Supervisor Mc- Donald came to her with one of the lavender gar- ments in her hand and told Aiken that it was "shaded."18 She told McDonald that she did not know it was shaded . McDonald asked her, "How did you lay it down?" Aiken said , "Why didn't you tell me that it was shaded ?" McDonald said that she did not know it. McDonald then left and returned to the cutting table with Plant Manager Slusser where they laid out the bundles of work Aiken had done. Thereupon Slusser called Aiken over to the cutting table . About what occurred then Aiken testified as follows: ... I went to the cutting table , and he told me, Ed Slusser told me, he said, "This work is shaded." And I told him that I did not know that it was shaded . And he said, "You are going to do it all over." And I told Ed Slusser that if I did it, that I would be willing to do my part, I would do all of my mine over if he would let the other two operators take their work out,20 that I would be willing to do my work. * * * He told me no , that I was going to do it all. He said, "You are going to do it all over." And I said, "Well, I didn't know that it was shaded." And he said, "I know, if you hadn't had so much on your mind Friday'21 you would have knowed what you was doing." Aiken asked Slusser what he meant by the last re- mark but he did not reply. She then asked him how many dozen there were and he said there were 70 dozen .22 She then asked him what he was going to give her and he said , "I'm not going to give you anything." At this point counsel asked Aiken if Slusser meant that she was going to be expected to do the work without receiving production pay- ments23 and she answered, "Yes, I guess-that's the 16 Brendel so testified. " As for Brendel's claimed reasons for bias, Respondent 's witnesses of course are not in the position of being completely neutral either " Apart from all the other indicia in the record pointing to this conclu- sion, it is also implicit it seems to me in the oral warning Moore received just a couple of days prior to the written warning . Certainly, with the number of oral warnings she already had been given , there was no need of another one antecedent to the written warning 'y The term "shaded" refers to unintended slight variations in the shades of the material in a garment generally due to the fact that the material came from two different dye lots f0 Two or three other operations had been completed on garments that Aiken had done at this point 21 Aiken had worn a union smock at work on Friday ° To do them over herself would have taken Aiken about 3 days she esti- mated ' Aiken worked on an incentive basis whereby she was averaging about $16 a day or $3 20 a day over the minimum legal rate of $ 1 60 an hour or $12 80 for an 8-hour day The practice in the plant was to pay operators at the minimum legal hourly rate while engaged in the repair or correction of their own faulty work. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD way I took it. He said he wasn 't going to give me anything. 1124 Aiken then went back to her machine and resumed working on the material McDonald had just given her but- McDonald came and took the bundle away from her telling her that she was not going to do it and went back to the office. A short time later McDonald and Slusser came back to Aiken's machine where Slusser (who had gone over to, the cutting table and gotten two or three gar- ments)25 threw them on the machines and told her to "do it." Aiken told him she was not going to do it unless he had the other two operators take their work out and then she would be willing to do hers. Slusser said no and told her, "Just get you card. "26 He then told her to come into the office. There he told the secretary to give Aiken both her checks and he went into his office. The secretary made out the checks while Aiken stood there. She took them and walked out. According to Aiken's further testimony there were no shading tickets on the material in question nor had anyone told her that the material was shaded. She also testified that she had done the assignment using the procedure she was taught to use and had always used. About Aiken's discharge McDonald testified as follows: ... One of the girls on the machine , which was Violet Greene, called me and said "Mary, do you know this work is shaded?" And I said, "I sure didn't, Violet." She handed me the gar- ment and showed it to me.... I took the gar- ment, in fact, I looked at her bundle and I noticed when I looked at it right off that it had not been sewn like I had showed them to do it. I took one garment from the bundle, and I walked back, which would have been approxi- mately three rows back to Louise Aiken's machine, and I said , "Louise, do you know this work is shaded?" And she looked up and she says, "Did I do it?" And I said, "You did the lot. Do you know it was shaded?" And she said, "Did I do it?" And I said, "You did the lot. Did you start this work with your markers up like I have showed you to do?" And she said, "Am I going to have to fix it?" And I said, "Did you do it like I showed you to do it?" And she said, "Am I going to have to fix it?" I said, "Did you start with your markers up?" And she paused a minute and she said, "No, I didn't." And I said , " Louise, how many times have I told you to start your work with your markers up?" And she said, "Am I going to have to fix it?" And I said, "I don't know. I will have to talk to Ed to see what we can do about getting it shaded in the right order." And I walked off. Thereupon according to McDonald's further testimony, she went to Slusser 's office and told him about the shaded work and that when she had asked Aiken about it the latter had admitted that she had not started it "with her markers up. "27 Slusser told McDonald to lay some of the garments out on the table and the two proceeded to examine them . Aiken pointed out, "Now, Ed, you see right here; she didn 't put her markers together because hereup is a marker down here , and here is another marker up here on another garment ." At this point Slusser called Aiken over to the table and said, "Well, Louise, Mary tells me that this whole lot of work has been sewn and we find these that are shaded," and he asked her why. Aiken said, "Well, I made a mistake." Slusser said, "On the whole lot of work?" "Here is your marker here and here is your marker here. It is wrong." Aiken said, "Am I going to have to fix them?" Slusser did not answer but according to McDonald, kept on saying, "Louise, this work is shaded and now what are we going to do with it? It has got to be fixed; some way, we have got to get it done. I don't know what we will do with it." Aiken said, "Well, Ed, I am sorry." At this point Slusser and McDonald again looked at the material and Aiken said again , "Well, Ed, I said I was sorry." Slusser retorted, "You may be sorry, but being sorry is not going to fix this work." At this point the buzzer rang and Slusser said, "Let's go ahead and take a break" and walked off. After the break when McDonald and Slusser had gone to the office , McDonald came back to the floor and Aiken was working on the next garments that had been given her. About what she told Aiken at this point McDonald testified as follows: "Louise, don't work on any more until we de- cide on what we are going to do with this work." And she continued to sew. And I said, "Louise, let's just quit right where we are and don't work any more until we get this work set- tled, what we are going to do." And by this time, Ed had walked out, up to the side of me by her machine, and he had two garments in "Jessie Durham corroborated Aiken's testimony that Slusser told Aiken that it was 70 dozen she had shaded and that she was going to do them all over and further that if she had not had so much on her mind that Friday she would have known what she was doing But she recalled no comment about payment in the conversation Clara Butler also testified on direct that she heard Slusser tell Aiken at the cutting table that she was going to do all the shaded work over "on her own time " On dross-examination Butler denied that Aiken told Slusser she would do the whole operation over if they would give here time for it When confronted with her affidavit which said "Louise said she would do the whole operation if they would give her time work." She admitted that Aiken had said that "There is a conflict between Respondent 's and the General Counsel's witnesses on whether Slusser had two or three garments I find it to have been two 26 According to Clara Butler's testimony when Slusser threw the garments on Aiken's machine and told her to do it and she refused unless he had the other girls pick out their work , he told her no, she was going to do it all. Thereupon they argued about it, according to Butler, but what they said she could not recall because she went back to her own sew- ing n The significance of the term "markers up" will appear SEW-MAGIC, INC. 931 his hand, two shaded garments that would reverse. He said , "Louise, I have got two garments here . If we can salvage them without the nee- dle hole showing, we will try it." He said, "Would you take these two garments and take them apart and let's see if we can salvage them." And she says, "I am not going to fix them ." And he said , "Louise, I am asking you to do two garments , to check and see if the lot can be salvaged ." And she says, "Am I going to have to take it all out?" And he says, "I have got only two garments." And she just sat there . And he said , "Louise, I'm asking you, will you do these two garments for me?" And she said , "No, I won 't." And he said , "well, Louise , I have asked you many times to do things for me . Why are you not doing it now?" And she said , "well, I am just not going to do it. II As to what finally transpired McDonald testified as follows: Well, she just continued to refuse . She sat there, and I think finally she moved and raised up from her machine and just stood there; by this time , the girls all around were stopping their machines, observing what was going on, and I said , to Ed : "How long is this going on?" And he said, "Louise , will you please fix these two garments so I can see if they can be fixed?" And she just stood there, and he said, "Louise, either fix the garments or pick up your time." And she said, "Just give me my time." About what happened when Slusser went to look at the work McDonald had spread out for him he testified as follows: And one was sewn on one end and the other was sewn on the other end, and of course, Mary was with me then , and I said , "Mary, I think"-she said, "she has turned them upside down "; and I said , " Yes, I can see it , the marks are upside down and the shades are bad. I don't know what we are going to do about it." So I called Louise over , and she was coming over, I don't remember ; she said something about on the way coming over, but I don't re- member what it was. She come over and I said, "You see these, Louise, how it is faded . Here is the marks , and one here , and one here." And in the conversation that was going on, she said, "She was,-different things, I don't recall all of them; one thing she said at this particular time, she said that she was sorry ; she said it a couple " In his testimony Slusser denied that he told Aiken she was going to Lave to resew the entire 70 dozen garments of times. And I said, "Sorry doesn't fix the damage. You may be sorry but sorry doesn't fix them. "28 The conversation ended when the break buzzer rang and he told Aiken to take a break . About what took place after the break Slusser testified as fol- lows: Well, after break , I went back out to the cutting table and I was looking at the garments and I decided to take two of the garments that was all up at the panel set-in , that was up as far as the third operation on some garments; and so I took the ones that was the third operation, and took two garments over to Louise and asked her to fix these two garments to see if we could salvage the rest of the garments that were already sewed on; and she said, "no." And I said to her, "Well, I am asking you to fix these two garments for me . And she said something about "You get the other girls to take their work out, and I 'll fix mine." And I said, "That's not what I'm asking you, Louise." I said, " I am asking you to fix these two gar- ments so that we can see if we can salvage these because when you sew it together with different operations that was on this and taking it out, you have a needle, where the needle has been, you can get needle holes , and things of this nature, and you have to have the top stitching on one side , you have to come right back down in the same needle holes as much as possible so you don't make seconds out of the garment, and this is why I asked her to fix these two garments , and she said that she would not, and so the conversation was going back and forth between she and I ; and she was saying "No," and I am asking her to do it, and she is saying to get the other girls to take out their work, and she will do hers. And -I am say- ing "I am not asking you to ( do) it all; all I'm asking you is to fix two garments." By this time I think she had pushed back in her chair like that and sat up something like this (with folded arms). According to Slusser 's further testimony in addi- tion to folding her arms at one point Aiken stood up. As the conversation continued McDonald "said something to the effect of how long is this going on." Slusser's testimony then continued: I said , " It is not going to go on very long." And so I said, "Louise, I am asking you now to fix these two garments to see if we can salvage these garments that are sewn on, salvage the lot." And she said, "No." And so, I said, "I will tell you , Louise, you are either going to repair these two garments or you are going to pick up your time; now you can take your choice as to what you are going to do." And she said "I will pick up my time ." And so I said , well, by this 427-835 0 - 74 - 60 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time, she was standing up, and so I said, "Come along we will go to the office and get it." And so before I turned completely around to go, to go to the office, I turned around, and there was a girl sitting two machines over this way, Mrs. Saxon and I said , "Ruth , would you fix these two garments for me so that I can see if we can salvage this lot?" And she reached out and took them and said , "Yes." And so I gave them to her and I turned around and I said , "come on , Louise ," and I started to the office . I got down close to where the ramp was, I think somewhere in that vicinity, and I told Mary to go back and get her timecard and punch it , and bring it up to the office , bring it along up to the office ; and as I was going down the ramp , through the cafeteria , I said to Louise, "Louise , do you know what you are doing?" I said , "Other times when we have had mistakes made, and you were asked to help fix the mistakes , you did it and no questions asked ; you were always too glad to do it, glad to help." I said , "today, I don't know what is wrong with you." * * * You have done these things before, no questions asked and now this attitude ; I can't understand what is wrong; and she is there, and she said, "I know what I am doing. I un- derstand." On cross-examination Aiken testified that when Slusser bought her the garments and told her to "do it" he did not tell her that he wanted her to take the stitching out in order to see if the garments could be salvaged . She admitted , however, that she told him she would not do the garments unless he got the other two operators to first take out their work on them .29 According to Aiken when she told him "that if he let those other two operators take their work out, that (she) would be willing to do (hers)" he said , "Well, I'll get your card ." She denied telling him to go ahead and do it . She also denied the remarks Slusser claimed to have directed to her on the way to the office. In further cross-examination Aiken testified that the markers on the top plys of material she is given to sew indicate what the proper side of the material is. Nonetheless she also testified that her practice (which she followed with the lavender material) was to start sewing with the marker up on one bun- dle and down on the other (which, she claimed, was ' She admitted that to do the work Slusser asked her to do would have taken her only a few minutes 00 In reaching this conclusion I am mindful of Slusser 's earlier remark to Aiken at the cutting table that if Aiken had not had so much on her mind the way she was trained ) and admitted that this way she can sew the garments faster . She also admitted by so doing it defeats the purpose of the markers. Conclusions re Aiken 's Discharge It is clear that the individual operators have no responsibility for detecting shading in the materials upon which they work and that the only way they know material is shaded is when it is ticketed as such or when they orally are so informed. Admit- tedly on the material in question there were no shading tickets . However, it is clear from Mc- Donald's credited testimony that the shading tickets had no significance for operations such as the one Aiken was performing . They would be significant only to operators putting on trim . Aiken's only responsibility regarding shading was to start her sewing with the markers up on each bundle and sew in the same sequence as the material was stacked thus matching the same ply of material to the same ply. When Aiken refused to do the two garments (which she admitted would only take her a few minutes) unless the other girls first took out their work, I do not believe that she was under the im- pression that she was being asked at this point to do the whole 70 dozen nor that the condition she im- posed related to the 70 dozen . Nor do I believe that at any time was she under the impression that she was going to be paid at least the minimum hourly rate for redoing the entire lot if she did them. Even in the absence of any connection on her part with faulty work she might be asked to repair (in the na- ture of the two garments Slusser was asking Aiken to do ) an employee 's refusal to do it (particularly in full view of her fellow employees) certainly would put her superior in an untenable position. In the case of Aiken, considering that Slusser and Mc- Donald must have been angry at Aiken for what they righteously considered to be a careless (or per- haps deliberate) mistake on her part, her refusal to aid in its correction makes an untenable situation even more so . I do not see what else Slusser could have done in this situation but what he did do. Nor, as spontaneous as it was, am I able to conclude that Slusser's reaction to Aiken 's conduct would have been any different had she not been connected with the Union .30 Accordingly, notwithstanding that there is enough evidence to raise a suspicion to the contrary , I find that Aiken's discharge was not dis- criminatory within the meaning of the Act. D. The Committee Meetings with Respondent's Officials On the night of July 15, at a union meeting it was decided to have the organizing committee of em- Friday she would have known what she was doing Obviously meant to be disparaging the remark, besides being somewhat enigmatic , could have been intended as nothing more Cf. J P Stevens & Co , Inc , 181 NLRB 666. SEW-MAGIC, INC. 933 ployees call on Slusser the next morning to discuss Moore's warning letter and Aiken's discharge. Ac- cordingly, shortly before 7:30 on July 16, having clocked in, the committee 10 strong (including the discharged Aiken)31 and wearing union smocks went into Slusser's office. About what took place there Mahaffey, who had acted as spokesman for the group, testified on direct as follows:32 I introduced the group as being the committee for the ILGWU and I told Mr. Slusser that we was in there to settle two grievances, one, Modelle's warning and Louise Aiken's dismis- sal.... Mr. Slusser told me that he didn't know anything about a union , and if we wanted to organize, to organize on our own time. I asked him why was Louise fired, and he said because she had shaded some work.... I told him that she had no way of knowing the work was shaded, and he said that she should have -known. . I asked Mr. Slusser did Louise Aiken's discharge have anything to do with her being a member of the Union, and he said he didn't know anything about a union.... I told him that Louise had worked there for 15 months, that she had done perfectly good work and we felt that she had been unjustly discharged.... He said that if that was the way we felt about it, we could go home and get off the premises. So the employees left. Slusser's testimony about this matter, substan- tially corroborated by McDonald was as follows: And I said to them right away that "We don't' recognize any group in this factory as a bar- gaining agent for any of the girls within the fac- tory, and that I would not talk to anybody as a group." And I said to them, "If you have any complaints, grievances that you want to take up with me, I am here all day. You can take them up with me all day long, and my door is always open," and I pointed to the door like that. I am on the floor all the time or else you can take it up with Mary McDonald, Orene Carpenter, or Elaine Rainey. Then she said, "Well, they are here now to discuss these two grievances." And I said that I wouldn't discuss them with them at this particular time. here. Go out to your machines and start to work, and if any of you have a complaint to make, you can come to me any time during the day and we will talk about it; and in going back and forth, I don't remember everything that was said , each sentence and everything that was going on. I said another time to go back to work and Jessie said that they couldn't go back to work until they settled their two grievances, and I said , "Well, if that's the way it is," I said, "You can either go back to work now or leave the premises." . . This was after 7:30. You see, they came in around 7:30 when the buzzer rang; and when the buzzer rang; that's work time, and they were in there during work time. And so as they were starting to go out the door, or out of the door of the office, I said something about, "I have a factory here to run and a job here to do." And Jessie, I think, said, "Yes, and we help you run it." And I said, "Well, you could go help me run it." And she said they wouldn't do it until they settled their grievances . And so I said, "You are going to have to go home or leave the premises if you are not going to do it," and they walked out the door. On cross-examination most of the General Coun- sel's witnesses denied that they were told or asked by Slusser to go back to work and also denied or could not recall Durham's telling Slusser that they would not go back to work until the grievances were settled. Gloria Davis, on cross-examination, at first testified that she could not recall Durham say- ing that unless the grievances were taken care of they would not go to work . Davis was then asked, "Well, tell me what was said then and by whom right before Mr. Slusser said, `Well, if that's the way you feel about it you can leave the premises ..."' to which she answered, " Well ... Jessie was want- ing to talk, kept trying to talk to him about it. We told him we wanted to talk about it before we went to work, and he wouldn't talk, so that's when he said we could leave." Counsel at this point repeated the same inquiry to Davis as follows: Q. ... After Jessie said , "We want to talk about it before we are going to work," was that at the time Mr. Slusser said, "Well, if that's the way you feel about it, you must leave the premises?" * And I said, "Well, (Aiken) was fired because of the fact that she sewed some garments wrong, and I asked her to fix two garments, and she wouldn't do it. That's why she was fired." And I said, "We have a factory to run A. Right after that, yes. Q. At that time Mr. Slusser did not say you were fired, did he? A. No, he didn't say we were fired, but he told us to get off the premises. Q. Is that the same statement you and I are referring to "Get off the premises," that you 31 Besides Aiken there were Modelle Moore, Jessie Durham, Clara " She was substantially corroborated by several other witnesses called by Butler , Irene Garrison, Lula Lang, Hattie Garrison, Inez Mahaffey, the General Counsel. Gloria Davis, and Nancy Hostetler 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified he made when he said , "If that's the way you feel about it, you can get off the premises?" A. Yes. While I do not believe that Slusser explicitly and repeatedly pleaded with the employees to go back to work as both he and McDonald claimed they did neither do I believe that he gratuitously ordered them off the premises . What occurred, I think, is that when ( as testified by Davis) they told Slusser they wanted to talk about the grievances before they went to work and made this purpose clear by their insistence he replied (as testified by Mahaf- fey) that if that was the way they felt about it they could leave .33 There is no indication in the evidence that they were prevented from going to work or that they would not have been permitted to go to work. It may be that the employees misinterpreted Slusser 's comment and thought they were being discharged . But if such was the case the employee's mistake can hardly be attributed to Respondent nor can it put Respondent 's in violation of the Act. Whether the employees realized it or not when they left the premises , I am convinced and find, they were engaging in a strike. The strike , however, being caused in part by Respondent's illegal warn- ing letter to Moore was an unfair labor practice strike. When the committee members left the plant they met with the union organizer and after discussing the matter with him it was decided to go back to see Slusser-this time to find out what their status was with respect to their own jobs . This meeting took place just before noon. In addition to Slusser, General Manager Brendel was present having been called to Greenville by Slusser as a result of the earlier meeting with the committee . According to Clara Butler's testimony (corroborated in general by several other of the General Counsel 's witnesses) Durham again addressed the company officials as a representative of the Union and told them that they were there to see about their jobs- Slusser said, "Well, as I said this morning, I am not going to discuss it with you." But he added that the general manager was there and that he would leave it up to the general manager. At this point Brendel spoke up, "Well you girls walked off your jobs this morn- ing." Durham said , "No, tell him Ed." She said, "We didn 't walk off our jobs this morning, you told us to go home." Slusser said, "I didn't tell you all to go home . I told you all to get off the premises." Ac- cording to Butler's further testimony after some further comment in which Aiken 's discharge came up Brendel told the committee , "All of you have been replaced." Durham said , "Are we fired?" but received no answer . Durham then asked if she came back in the morning would she have a "That their leaving was contingent on some choice of their own is im- plicit in the words "If you feel that way ...... "Thayer, Inc of Virginia, 125 NLRB 222 machine and was told no. She then asked if she would have a machine the next week and was told no. She then said, "Well , then we are fired?" Brendel replied , "Just consider yourselves as laid off." He then added, "As far as I'm concerned, it's over with." All the rest of the General Counsel's witnesses except one testified that the employees were told they had all been replaced . The one who did not so testify was Brendel who testified that he had been active that morning in recruiting and hiring replace- ments for the missing committee members . He also testified , in corroboration of Slusser 's testimony, that Slusser read off the names of those who had been replaced and told those who had not been replaced that they could go back to work. There was no response to the opportunity to go back to work and the committee left. Despite the fact that several of the General Counsel 's witnesses testified to the contrary, I find in accordance with Brendel's testimony that the employees were told who had been replaced and who had not and that the latter were given the op- portunity to go back to work but failed to take ad- vantage of the offer . Those who were replaced, and thus refused reinstatement ( to which as unfair labor practice strikers they were entitled ) 34 were Dur- ham, Moore, Lula Lang , Hattie Garrison , Davis, and Hostetler . The remaining three ( Butler, Irene Garrison , and Mahaffey ) having chosen to reject the opportunity to go back to work took on the status of strikers again-this time because of Respondent's refusal to reinstate their replaced fel- low strikers-an unfair labor practice on the part of Respondent35 and thus for a second time became unfair labor practice strikers. E. Independent 8(a)(1) Nancy Hostetler, called by the General Counsel, testified on direct that in late June she had a con- versation in the sewing room with McDonald about the Union. In the conversation McDonald asked her if she had heard any of the girls talking about the Union or if she had seen any girls sign a union card. Hostetler said that she had not . McDonald then asked Hostetler would she tell her if she saw any- one sign a union card or talk about the Union. Hostetler did not reply to McDonald this time. On cross-examination it was brought out that Hostetler and McDonald had had more than one conversation about the Union prior to this time. At first Hostetler testified that McDonald started the conversations but later testified that she did not re- member who started them. On further cross-ex- amination she admitted that in one of these prior conversations she had told McDonald that her mother worked in another plant and was for the "The failure or refusal to reinstate unfair labor practice strikers upon their unconditional offer to return to work is discriminatory within the meaning of Sec 8(a)( 3) of the Act. Thayer, Inc of Virginia, supra SEW-MAGIC, INC. Union but denied saying that her mother had given her any advice as to what to do about the Union. When asked if she had told any of the girls about McDonald asking her to let her know what was going on about the Union , Hostetler said that she did not repeat it to any of the girls but did tell it to Supervisor Elaine Rainey about which she testified as follows: Well, when we, me and Mary , got through talk- ing and I got through what I was doing, I went out front and told Elaine. I said, "Elaine, Mary asked me if I would tell her if I had seen any of the girls sign a union card , or if I have talked to any of the girls ." And she said, "Well, what did you tell her?" And I said, "I didn't tell her anything." And she said, "Well, would you tell her?" And I said, "No." And she said , "Well, would you tell me?" And I said, "I might." McDonald testified that she had two discussions with Hostetler about the Union . One of them was on July 15. It took place when McDonald was standing at the cutting table . Hostetler walked up and began watching what she was doing. According to McDonald , Hostetler said, "Boy, Louise got upset a while ago didn 't she?" McDonald replied that she could not understand Louise-that she had never been like that before. Hostetler said, "You know why she did this, don't you?" McDonald said she did not know and Hostetler said, "Well, the Union has told these girls if anything happened to them up here, that they would lose their jobs, that they would see that they get a job in another plant." McDonald replied, "Really?" The other conversation with Hostetler occurred 3 or 4 weeks before that about which McDonald testified as follows: Well, we were working together. We were matching up work, and Nancy says, "Boy, this union is really working, aren 't they?" And I said, "Well, I have heard they have been out back handing out handbills and papers." And she says, "There has been two or three men back there." And I said, "Well, I had heard they had been, but I don't go out the back." And she said, "Well, my mother said if she could see these men and know what they would look like, she would know them." And I said, "Where does your mother-no , first she said, "These men have been to where my mother works." And I said, "And where does your mother work?" And she said, "She works in Spartanburg at the Butte Knit plant, and she said they had been over there. And I said, "Nancy, from what I have observed of union activity, I would want no part of it, but this is individual own decision to make ." And she says, "Well , my mother-" she didn 't say "my mother," she said , "Well, my mama told me not to get involved." And I said, "Well, now this is your decision, but if I could advise you or anyone else, I would say don 't get involved 935 because they do not offer the benefits that peo- ple believe they offer. McDonald denied asking Hostetler to give her the names of employees who signed union cards or talked in favor of the Union but did not deny asking her if she saw anyone signing union cards or talking about the Union. Rainey in her testimony flatly denied Hostetler's testimony and denied ever having had any long conversations with Hostetler or any conversations which would go beyond such things as "Good morning. How are the children, the family." I credit Hostetler in both the foregoing incidents. It is quite clear from McDonald's own testimony that she and Hostetler must have , as Hostetler testified , "talked a good deal about the Union." Such discussions can be and probably often are in- stigated or sought out by employees interested in currying a little favor with their superiors-who on their part are willing to lend themselves to the situation not being averse to doing a little prose- lytising on behalf of the employer. The result can be as I believe it to have been here . Believing Hostetler to be against the Union, McDonald sur- mised that it would be feasible to enlist her aid in getting some valuable information . As for the Rainey matter there was no mention of it in Hostet- ler's direct testimony, it having come up spon- taneuosly on cross-examination . This fact plus the manner in which she described it pointed to its authenticity at the time she testified and still produces that reaction after having reviewed the whole record . Here again one cannot avoid conject- ing about the interplay of human foibles. It is not inconceivable that Rainey might have been in- terested in playing a little one upmanship with respect to her's and McDonald's ability to get use- ful information for the boss. On the foregoing evidence I find that Respondent violated Section 8(a)(1) of the Act by both McDonald's and Rainey's interrogation of Hostetler and further by McDonald's attempt to induce Hostetler to report on the union activity of her fellow employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial rela- tionship to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices affecting 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commerce , I shall recommend that it cease and de- sist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent failed and refused to reinstate Jessie Durham, Modelle Moore, Lula Lang, Hattie Garrison, Gloria Davis, and Nancy Hostetler upon their request for reinstatement as unfair labor practice strikers on July 16, 1969, thus violating Section 8(a)(3) and ( 1) of the Act , I shall recommend that Respondent offer them immediate and unconditional reinstatement to their former or substantially equivalent positions,36 without preju- dice to their seniority and other rights and privileges , dismissing if necessary any replacements hired , and make them whole for any loss of pay they may have suffered because of and since the refusal to reinstate them on July 16. Having also found that Clara Butler, Irene Garrison , and Inez Mahaffey became unfair labor practice strikers on July 16, 1969, I shall recommend that Respondent offer them upon application immediate reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges , dismissing if necessary any replacements hired for them, and make them whole for any loss of pay they may have suffered by reason of any refusal on the part of Respondent to reinstate them during the period from 5 days after the date upon which they apply for reinstatement to the date of the Company 's offer of reinstatement. In view of the nature of the unfair labor practices committed , the commission by Respondent of similar and other unfair labor practices may be an- ticipated . Therefore , I shall recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the fol- lowing: CONCLUSIONS OF LAW 1. Sew-Magic , Inc., is and at all times material herein has been engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act. 2. International Ladies' Garment Workers' Union, AFL-CIO, is and at all times material has been a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to reinstate Jessie Durham, Modelle Moore , Lula Lang, Hattie Garrison , Gloria Davis, and Nancy Hostetler on July 16, 1969, Respondent engaged in discrimination to discourage membership in a labor organization, thereby engaged in unfair labor practices pro- scribed by Section 8 (a)(3) of the Act. 4. By interfering with , restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and 97) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law I recommend that Respon- dent Sew-Magic , Inc., its officers , agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Illegally interrogating its employees about their own or other fellow employees ' union activi- ties. (b) Attempting to induce employees to report on their fellow employees ' union activities or discussions. (c) Threatening employees orally or in writing with discharge or other economic sanctions as a pretext or otherwise because of or in retaliation for the employees' union sympathies or activities. (d) Discouraging membership in the above- named Union or any other labor organization by discriminatorily refusing to reinstate any of its em- ployees or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization , to form labor or- ganizations , to join or assist the above -named or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid of protection , or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Jessie Durham , Modelle Moore, Lula Lang, Hattie Garrison , Gloria Davis, and Nancy Hostetler immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges , dismissing if necessary any persons hired as their replacements , and make them whole for any loss of pay they may have suffered by reason of Respondent's refusal to reinstate them on July 16, 1969, by payment to each of them a sum of money equal to that which she normally would have earned from the foregoing refusal to reinstate them, less net earnings during said period , Crossett Lumber Company, 8 NLRB 440, 497-498, with " The Chase National Bank of the City of New York, San Juan , Puerto Rico, Branch , 65 NLRB 827 SEW-MAGIC, INC. 937 backpay computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company, 90 NLRB 289, 291-294, including interest as held in Isis Plumbing & Heating Com- pany, 138 NLRB 716. (b) In a like manner offer immediate and full reinstatement to their former or substantially equivalent positions to Clara Butler , Irene Garrison, and Inez Mahaffey and make them whole for any loss of pay they may have suffered by reason of Respondent 's refusal if any to reinstate them by payment to each of them a sum of money equal to that which they would normally have earned as wages during the period from 5 days after date of their applications to the date of Respondent 's offer of reinstatement to be computed as aforesaid. (c) Post at its plant in Greenville, South Carolina, copies of the attached notice marked "Appendix. "37 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. (d) 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.38 IT IS FURTHER RECOMMENDED that , unless Respon- dent should within 20 days from the receipt of this initial Decision notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the aforesaid action. 17 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- 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 " 31 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 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 illegally interrogate our em- ployees about their own or their fellow em- ployees' union activities. WE WILL NOT induce or attempt to induce employees to report on their fellow employees' union activities , sympathies, or discussions. WE WILL NOT threaten employees orally or in writing with discharge or other economic sanctions as a pretext or otherwise because of or in retaliation for the employees ' union sym- pathies or activities. WE WILL NOT discourage membership in the above-named or any other labor organization by illegally refusing to reinstate any of our em- ployees or otherwise by discriminating against them in regard to their hire or tenure of em- ployment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization, to form labor organizations , to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) of the Act. WE WILL offer Jessie Durham, Modelle Moore, Lula Lang, Hattie Garrison, Gloria Davis, and Nancy Hostetler immediate and full reinstatement to their former or equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing if necessary any persons hired as their replace- ments, and we will make whole said employees for any loss of pay they may have suffered by our refusal to reinstate them on July 16, 1969. 938 DECISIONS OF NATIONAL WE WILL also offer Clara Butler , Irene Gar- rison , and Inez Mahaffey immediate and full reinstatement to their former or equivalent positions, without prejudice to their seniority and other rights and privileges , dismissing if necessary any persons hired as their replace- ments, and we will make them whole for any loss of pay they might have suffered by our refusal to duly reinstate them upon application. All of our employees are free to become or refrain from becoming membersof the above Union or any other labor organization. SEW-MAGIC, INC. (Employer) LABOR RELATIONS BOARD 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 919-723-9211, Ext. 360.