Tunica Mfg., Co.

TUNICA MANUFACTURING COMPANY Tunica Manufacturing Company, Inc. and Local 19, Distributive Workers of America-DWA. Cases 26-CA-6555, 26-CA-6572, and 26-CA-6611 June 14, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On February 7, 1978, Administrative Law Judge Thomas E. Bracken issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs, and Respondent filed an answering brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs. and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge, to modify his remedy,3 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Respondent and the General Counsel have excepted to certain credibili- ty findings made by the Administrative Law Judge. It is the Board's estah- lished policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evi- dence convinces us that the resolutions are incorrect. Standard Dry $ aill Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 19511. We have carefully examined the record and find no basis for reversing his find- ings. 2 Our dissenting colleague catalogs Respondent's unfair labor practices as found herein and urges them as proof of his contention that Respondent further violated the Act by discharging employees Bradshaw, Watson, Brig- ham, and Wheeler, who, as the Administrative Law Judge found, played but a minor role in the Union's organizational campaign. The Administrative Law Judge carefully weighed this factor before rejecting this allegation of the complaint. While our dissenting colleague's argument has its attraction. we must point out that his assertion is no substitute for evidence substanti- ating the alleged violations. Although he refers to "new discharge stan- dards," the record shows there was no "established rule" for discharging an employee because of low production. The dissent suggests no persuasive reason why Respondent would select these particular employees if its mo- tive were discriminatory nor does he refer to any evidence showing that employees who had not engaged in any protected activity were treated more favorably. Moreover, our colleague's argument that a history of discharges after Respondent's peak season does not justify discharges in March which are usually made in January is undercut by the Administrative I aw Judge's uncontested finding that in 1977 Respondent was coming off its peak pro- duction period in March. 3 The Administrative Law Judge inadvertently specified interest to be paid at 7 percent; however. interest will be calculated according to the "adjusted prime rate" used by the U.S. Internal Revenue Service for interest on tax payments. Florida Steel Corporation, 231 NL RB 651 (1977). Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Tunica Manufacturing Company, Inc., Tunica, Mississippi, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER JENKINS. dissenting in part: I agree with my colleagues' adoption of the many 8(a)(1) violations and the 8(a)(3) and (1) violation found by the Administrative Law Judge. I disagree, however, with their adoption of his finding that the discharges of employees Bradshaw, Watson, Brig- ham, and Wheeler were not unlawfully motivated and his dismissal of the 8(a)(3) and (1) allegations pertaining to them. The Union began its organizational campaign among Respondent's employees on or about Febru- ary 12, 1977.4 On February 28, it sent a letter to Re- spondent which advised Respondent of its campaign and listed the names of 16 employees who would be active on behalf of the Union. Among those names were employees Watson, Brigham, and Cooke, who were subsequently discharged.5 Prior to this notifica- tion, however, Respondent learned of the campaign and, on February 23, began its attack against the Union. The Administrative Law Judge found, and we have affirmed, that, on that date, Respondent Vice President Rubin, in two speeches to the assem- bled employees, threatened to close the plant and threatened the employees with the loss of jobs if they selected the Union. told them that it would be futile to select the Union as their bargaining representative, and solicited the employees to withdraw their signed authorization cards from the Union. Immediately thereafter, Respondent promulgated a new no-solici- tation rule for the purpose of defeating the Union's attempt to organize the employees. During the weeks following the February 23 speeches. Respondent continuously violated Section 8(a)(l) by interrogating employees, threatening them with loss of employment, soliciting employees to withdraw their union cards and to sign an antiunion petition, creating the impression of surveillance, and by other acts and conduct. It is in this context of unlawful conduct by Respondent, intended to dis- suade employees from supporting the Union, that the March 9 and 10 discharges of Bradshaw, Watson, Brigham, and Wheeler. which occurred in the midst of so many unlawful acts, must be viewed. For the reasons set forth below, I cannot agree with my col- leagues' decision to affirm the dismissal of the com- 'All dates refer to those In 1977. The Administratie Iass Judge found, and we have unanimously af- firmed, that Cooke's discharge siolated Sec 8(a)(3) and ( ) of the Act 236 NLRB No. 105 907 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint with respect to these discharges. First, all four discharged employees engaged in union activity, and we have held for years that the discharge of a union adherent because of his status as such is unlawful, regardless of whether the em- ployee is the primary or leading proponent of the union. Second, Respondent knew that Brigham and Watson supported the Union because their names appeared on the February 28 letter listing "some" of the Union's adherents. In the circumstances, it is rea- sonable to infer that Respondent knew that Brad- shaw and Wheeler were union supporters since both were interrogated concerning their union member- ship and desires and threatened with loss of employ- mnent, and Respondent generally conducted a cam- paign of interrogation and solicitation of signatures on antiunion petitions with the obvious purpose of finding out who supported the Union. In my opinion, the fact that Respondent did not discharge all known union supporters, or all of those listed in the Febru- ary 28 letter, or all of the bindery department em- ployees listed in the letter is irrelevant because, again, we have never predicated an 8(a)(3) finding on a preliminary finding that all known union support- ers were discharged. Third, the magnitude and perva- siveness of Respondent's 8(a)( 1) conduct proves that it harbored union animus, which the Administrative Law Judge did find. Fourth, the timing of the dis- charges, occurring at the height of the Union's orga- nizational campaign, is indicative of an unlawful mo- tivation for the discharges. Finally, it appears from Respondent's own testi- mony that the union activity of its employees caused Respondent to establish a new and different stan- dard for the discharge of employees which resulted in the discharges of Bradshaw, Watson, Brigham, and Wheeler, and our decisions make clear that dis- charges resulting from such unlawfully motivated conduct constitute violations of Section 8(a)(3) and (I) of the Act, regardless of whether the particular discriminatee fits the new standard. Thus, prior to the discharges, Respondent did not have an estab- lished rule which determined at which point an em- ployee's low production would not be tolerated fur- ther. During this preunion period, various factors, including the number of written warnings received by the employee, the employee's attitude, and wheth- er Respondent was operating in its peak season, were considered.6 In March and after Respondent knew of, and had begun its attack against, the Union's or- ganizational campaign, the "guidelines"7 used for the discharges at issue herein were established. In ex- plaining the discharges of these four employees, Plant Manager Potter stated that low production was not the only reason for them. Potter also testified that one of the factors considered in devising the March "guidelines" was "morale," that the Union's organizational drive had caused a change in morale, and that "this was a factor in setting the curve [80 percent] where it was." 8 It is therefore obvious that the Union's organizational drive and the resultant change in the "morale" of its employees caused Re- spondent to establish new discharge standards and to effectuate those standards immediately as part of its overall campaign intended to unlawfully quash the employees' interest in the Union.9 Based on all of the above and noting particularly Respondent's extensive 8(a)(1) conduct, its strong union animus, the timing of the discharges, and that it was the interest in the Union exhibited by Respon- dent's employees which actually caused the dis- charges, I would reverse the Administrative Law Judge and find that the discharges of employees Bradshaw, Watson, Brigham, and Wheeler violated Section 8(a)(3) and (1) of the Act. 6 Respondent's "peak" season ends in January. In January 1976, for ex- ample, nine employees were discharged for low production. These were four warnings and production at a less-than-80 percent level for the previous 5 weeks. 8 The Administrative Law Judge neglected to mention this testimony in his Decision. ' In my opinion, the fact that there had been no discharges for low pro- duction during the 1977 period immediately following Respondent's peak season only accentuates the timing of the discharges in relation to the union activit' and further supports the conclusion that they were unlawfully moti- vated. It does not, as it appears to do for the Administrative Law Judge and my colleagues. open the door in March for discharges that usually occur in January. DECISION STATEMENT OF THE CASE THOMAS E BRACKEN, Administrative Law Judge: This case was heard at Tunica, Mississippi, on May 2, 3, and 4, 197 7.l A charge was filed by Local 19, Distributive Work- ers of America-DWA, herein the Union, on February 28 resulting in Case 26-CA-6555; a second charge was filed by the Union on March 10, amended on March 15 and 21, resulting in Case 26-CA-6572; a third charge was filed by the Union on March 28 resulting in Case 26-CA-6611. The complaint in Cases 26-CA-6555 and 26-CA-6572 issued on April 1, and Case 26-CA-6611 was added thereto by an amendment to the complaint on April 7. Tunica Manufacturing Company, Inc., herein the Re- spondent, filed an answer to the complaint on April 7, and filed an answer to the amendment to complaint on April II11, denying in both answers any material allegations of violations of the National Labor Relations Act, as amended, On April 29, Respondent filed an amended an- swer setting forth that, on April 20, the Board had conduct- m All dates are in 1977 unless otherwise stated. 908 TUNICA MANUFACTURING COMPANY ed an election in which 206 votes were cast for, and 70 against, the Union, with no objections filed or contemplat- ed as of the date of the amended answer.2 Respondent then went on to admit, in whole or in part, allegations contained in 12 paragraphs or subparagraphs of the complaint. During the course of the hearing, as Gener- al Counsel put on his case, and over General Counsel's objection, I allowed Respondent to amend its answer by denying several of his prior admissions. All cases were consolidated for a single hearing. The pri- mary issues are whether the Company, Respondent, unlaw- fully interrogated, coerced, and threatened employees dur- ing the Union's organizing drive and discriminatorily discharged five union supporters in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. Upon the entire record,3 including the stipulations of the parties and my observation of the demeanor of the witness- es, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT I JURISDICTION The Company, a Mississippi corporation, is engaged in the manufacture of quilted materials and related products at its factory in Tunica, Mississippi, where it annually re- ceives goods valued in excess of $50,000 directly from points located outside the State; and during the same pe- riod of time it ships goods valued in excess of $50.000 di- rectly to points located outside the State. The Company admits, and I find, that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRAC TICES A. Background 4 Respondent operates a factory in Tunica, Mississippi, in which it employes approximately 200 employees on the day shift and 125 employees on the night shift in the manufac- turing of mattress furniture and van pads. Included among its supervisory personnel during the relevant periods herein were Vice President Ralph Rubin, Day Plant Manager 2 The record, by stipulations, shows that. on Februar) 28, the t nion had filed a petition for certification of representation. Case 26 R(C 5461, eek- ing a unit of production and maintenance emploees at Respondent's Tuni- ca, Mississippi, plant; that a Stipulation for Certificati pon (pon onsent Election was approved on March 18; that the election uas held on April 22 and was won by the Union; that no objections had been filed: and that it was assumed that certification would issue from Region 26 in the normal course of events. The General Counsel's unopposed motion to correcl the transcript. dat- ed June 21. is granted, except as to p. 203. 1. 14. and receised in evidence as G.C.'s Exh. 30 Ralph Potter. Night Plant Manager Ron Alexander, 5 Sup- ervisor Beatrice O'Neal, Supervisor Joan Suan, Supervisor Bertha Terry. and Supervisor Drew Wade. Respondent ad- mitted in its answer that these employees were supervisors under the Act. On or about Saturday, February 12, the Union com- menced an organizational drive when William E. Scott, an International representative, contacted Delores Norwood Sanders, an employee in the binding department of Re- spondent.6 On the next day, the Union held its first of a series of organizing meetings at the New Antioch Baptist Church, located near Tunica, with six to eight employees present. On the following Sunday, February 20, a second meeting was held in the same church, with approximately 30 to 40 employees present. On February 28. the same date that the Union filed its petition in Case 26 RC 5461, supra, it also forwarded to Respondent. via certified mail, return receipt requested, a letter addressed to Ralph Rubin, manager, which was re- ceived on March 1.7 The letter advised Rubin of the orga- nizing campaign and then listed the names of 16 employees as "some of the employees that will be active on the Union's behalf." Six of the named employees worked in the binding department. Delores Norwood, Christine Brig- ham, Terrie M. McNeal, Christine Jones, Emma Ruth San- ders. and Henrietta Watson. Two of the binding depart- ment employees. Brigham and Watson, were subsequently discharged as was a janitor, Hugh Cooke. BH. The February 23 Speech of Ruhbin The General Counsel alleges and Respondent denies that, on or about Februar, 23, Respondent, in a speech given by its vice president, Rubin, told its employees that it would close its plant if the Union succeeded in its organiz- ing campaign, threatened its employees with loss of jobs. expressed to its employees the futility of unionism, solicited its employees to withdraw their designation of the IUnion as their exclusive bargaining representative. and an- nounced to its employees that it was adopting and enforc- ing a new rule for the purpose of preventing its emplosees from discussing the Union. (Offliial notice i taken of the D)eilsion and Order of the Board in Fln-il ,intuli n ..trt.' ( pnt, l n, Ir , Is 2 Nl RB 729 I1970). In this 197tl case the Board fiund thie Respndenlt ,ielated Set 8(a( 1) (of the Act hb I) Ithreat- ening emnploees .itlh plant cltourc: (2) engaging In coercive interrogation: (31 thrcalenint employees vith loss of Jobs and with loss of their right lo pre.ent their otn gries.ances and 4) granting benefits to induce or enmour- age etrploees o vthu thdra. iheir support fron the Union during an organ1- in canmpaign it Respondent's I unica l.callton The Board also found that R;lph Ruibin. uh h then ),cculpled the position tof plant manager. coerced an employee by telling the emaplicee lhat the C onrpan, had withdrawn its plani to instlitue Incrcalsed lncentise pan rates because if Ihe Lnion (182 NI RB 731 732 i1970i t ls.liandeir , as, no, lonter cmploied hbo Respondent wheu he testified herein SlllSanders u,, the da .lighlr Io ( aInn Norw ,,Id. presrdeirt ,f the i ctl chapict of the NA ( i, and the N. ACP Ihereafter a.tclel sIlupported the I ntun's ort nlt/int c.iillpal gtl Rulblll ;i*as thle Itre[enlllt itneral menni a nln.ger .,I the plant. h.lsing been ill Rcspionldclt'is cllolt f(or It ars. rlid sats the plant man.ager in 1969 at the tl i C i tf 1 litlt SI utt ntlt tl ttrlrl, ( f,/i 1l tlr, , ip t it . In - lt 909 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no dispute as to the fact that Rubin gave two speeches on February 23, one to the day shift and one to the night shift.s There is a dispute as to the contents of the speech and as to the interpreted effect of the speech with Respondent's contending that Rubin's remarks were pro- tected free speech under Section 8(c) of the Act. Rubin testified that 48 hours 9 before he spoke to the employees he started to compose a rough draft of a speech that he wished to give to the employees to point out the Company's opposition to the Union. He typed the speech himself, reread it several times, reviewed it with a company official and an unnamed attorney, and continued to make changes in the text up until 5 minutes before delivery.' 0 On the morning of February 23, he gave the speech for the first time to the assembled day shift employees, and then in the evening of that day he made the same speech to the night shift employees. Rubin testified that he read the speech "verbatim" and that he did not digress from it in any fash- ion. However, he did state that, on nearing the end of the speech given to the evening shift, he did not physically read from the text as by then he had learned to say portions of it without having to refer to the document. General Counsel produced four witnesses who testified that they were present when Rubin made his speech to the day shift employees and two employees who were present at the night shift reading. None of these witnesses contend- ed that Rubin ignored the text of his speech and simply spoke extemporaneously. Mark Carpenter, who had the clearest recall of the speech and was the most impressive witness of this group, testified that Rubin had papers in his hand and appeared to look at them as he spoke, although he admitted that Rubin occasionally looked up from the papers during the course of his speech. I am convinced that Rubin did read his prepared speech and did not substan- tially deviate from its text. However, there are portions of what was described by Rubin as a 10 minute speech that were obviously remem- bered by the witnesses, and which I will set forth in juxta- position with the witnesses' testimony. 1. Plant closure and loss of jobs [Text:] Let me tell you another reason why the Company does not want a union here. As most of you know, up until two years ago, we used to have a facto- ry in California. There were 250 people working in that plant until a union went after them, and after many months, the union won an election. The people that voted for the union thought that everything would be peaches and cream, just like the kind of promises you have been getting. You know what hap- pened? For 7 months, the union tried to get the com- pany to sign a contract. They couldn't do it, and the union gave up and left town. But the damage had been 8 A cop) of the speech was received into evidence as Resp. Exh. 10. 9 This would be the day following the second union meeting at the New Antioch (Church. 10 Rubin was not a novice in union campaigns as in the speech itself he stated that he had participated in two prior elections. done. The union created so much trouble in and out of the plant that the people couldn't work and produce the goods the customers wanted and needed. So our customers went to another factory, and the Company was forced to close the plant due to lack of business, and 250 people who had been working everyday and supporting their families, no longer had a job to go to. Believe me, when I tell you that you are playing with fire. That this is no game. A lot of people . . . You . . . Your friends . . . all can get hurt. Don't make the mistake of thinking that what happened in California, can't happen here. Because it can, if you let these people you probably never saw before, blind you with their sales talk about what they claim they can do. If you allow this union to create a situation that makes it hard for us to take care of our customers, look out . . . because the ones that would get hurt first, and the hardest would be you .... Let me try to explain to you just what you are playing around with. Today we have working in this factory, almost 400 people who depend on their jobs to earn a living for themselves and their families. That means that there are actually not 400 people, but about 1500 peo- ple depending on this plant if you count the families. This Company, last year, in 1976 (and I am quoting from our annual government wage report) this Com- pany paid you people that work here 2-1/4 million dollars in wages. And we are proud of this. Anybody can understand what the loss of this kind of money would mean to this town . . . to this County . . . and most of all, to you and the people who depend on you. * * . . .think carefully about what you will be able to do to earn a living for your families, if you bring in a union and make it hard for the Company to provide steady jobs for all of you all year round. Testimony: Lee Greene testified that during the speech Rubin said that "they closed one factory down because of the union and he also would do the same for that one," and that the factory Rubin referred to was in California. Car- penter also testified that Rubin said a plant in California closed "because of a union trying to get inside of it," and that Rubin went on to state that "if the union did, by chance get into the factory . . . the factory would close up and move somewhere else." Delores Ruth Sanders testified that Rubin "talked about a plant in California that closed down because of a union," and that Rubin stated that "he would lock the doors on this plant here in Tunica, and we would be out of jobs." Emma Ruth Sanders testified that Rubin stated that "there wasn't no union coming in the plant, and before a union would come in there . . . he would close the thing down." 910 TUNICA MANUFACTURING COMPANY 2. The futility of unionism [Text:] But the Company is going to do everything they legally can do to keep a union out of this plant. There is only one reason for the Company feeling this way and that is what we know from practical experi- ence that a union cannot be of any benefit to our people. How can the Union get anything for you? The plain, simple, honest truth, is that the Union can't do one single solitary thing about anything, un- less, unless the Company agrees to it. The Union can- not make the Company do anything. They [the Union] know as well as I do that they cannot make the Company do anything the Company doesn't want to do. Testimony: Hibbler testified that Rubin told the em- ployees that "the Company ... wouldn't have no union"; that "before they would have a union they would move"; and that "he would do all in his power to keep it out, even if it means closing the doors." Delores Norwood Sanders testified that Rubin stated that "there was nothing a union could make them do," and that the Company "didn't have to do any of the demands that the Union said." 3. Soliciting of employees to withdraw their designation of the Union [Text:] A number of people have come to me, telling me that they are being pressured into signing cards, and bothered while they were trying to work at their job. If you are being bothered and want to be left alone, all you have to do is to let either Mr. Potter or myself know. Now some of you may have been pressured into signing and may have different thoughts about this now, or it may be tomorrow or the next day. If you have signed a card and want to change your mind, you have the right to go to the person you gave the card to, and ask for you card back. This is your right, and if you are really dealing with honest people, they will give it back to you. Don't let anybody tell you that this is not your right. If they fail to give it back to you, you have the right to go to the Union direct and demand that they do so. Testimony: Carpenter testified that Rubin told the em- ployees that "people had been bothering people, trying to solicit cards" during their working time; that "a new policy would go into effect"; and that in the future "anybody caught talking in huddles, or in groups . . . and anybody caught soliciting during working time would be fired for solicitation." Carpenter further testified that Rubin stated that "the people who had listened to his speech and had signed cards beforehand, and had different opinions after he got through with his speech, and wanted their cards back, could go to the people who had gave [sic] the cards. And if those people would not give them back, that they could come to the office, or come directly to him, and he would go and see about getting their cards back from them." Hibbler testified that Rubin advised the employees that, if they could not get their signed authorization cards back from the person they had given them to, they could "come to him and he knowed [sic] a way to get them back," and that "if anybody is harassing us about signing a card, you could come to him and let him know and they would show these people the door." Watson testified that Rubin stated that "if anybody had signed a card and wanted it back, to go to the person who they got the card from and ask them for it, and if they didn't give it to them, to come to him, and he had a way of getting the card back." Emma Ruth Sanders testified that Rubin said that if an employee could not obtain his union card from the person who gave him the card "to let him know and he would try to get it back and he would get it back." Delores Norwood Sanders testi- fied that Rubin said that, if an employee wanted to have his card returned and could not obtain it from the person who gave it to him, the employee "could come to him and let him know, and he'll get them back to you." Sanders also testified that Rubin stated that "some of the employees had told him that people were harassing them during work time, trying to get them to sign union cards," and that Rubin then added that "he was placing a new rule on the board, and that meant that no one could be standing around in a group talking, after that." The question of the propriety of Rubin's speeches to the employees about plant closure must be decided in the light of the principles stated in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). There the Court established cer- tain standards for determining whether an emlpoyer's statements about the effects of unionization are permissi- ble. The Court stated that any evaluation of employer statements "must take into account the economic depen- dence of the employees on their employers, and the neces- sary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." (395 U.S. at 617.) Accordingly, the Court continued: . . .an employer is free to communicate to his em- ployees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effect he be- lieves unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable conse- quences beyond his control or to convey a manage- ment decision already arrived at to close the plant in case of unionization .... If there is any implication 911 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresen- tation and coercion, and as such without the protec- tion of the First Amendment. [396 U.S. at 618.] As previously stated, I find that Rubin did read from his prepared text and did not substantially deviate therefrom. However, I also find that the speech in its overall context and in specific parts thereof was replete with unmistakable and thinly veiled threats of plant closure and loss of jobs. The three witnesses who testified for the General Counsel as to threats of plant closure, Greene, Carpenter, and De- lores Norwood Sanders, were all young, unsophisticated. and sincere. Their testimony did not purport to be an exact reproduction of Rubin's very words, but their testimony does reveal that they all picked up the "intended implica- tions" contained in the vice president's speech. The mes- sage they got was that the Company had closed one factory down in California because of a union trying to organize its employees, and, if the Union did get in to Respondent's factory in Tunica, the Company would close that one down and move someplace else. Rubin spelled out to the assembled employees that 250 employees had lost their jobs in California after the union won an election, and then went on and "explained" to them "just what you are playing around with," 400 jobs that support 1500 people. In a town of 1661 people, and a county of 11,542 people,'" it is evident that a factory that provides 400 jobs is a main source of employment for the people of that area. Respondent's threat to remove 400 jobs from Tunica was plainly coercive and inhibited Re- spondent's employees from exercising their rights guaran- teed in Section 7 of the Act. Also coercive in Rubin's speech was his constant empha- sizing of the futility of choosing a union: "[A] union cannot be of any benefit," "a union can't do one single solitary thing about anything," and "they cannot make the Compa- ny do anything the Company doesn't want to do." I con- clude that Respondent, by Rubin's speeches of February 23 about closing the plant, the loss of jobs, and the futility of choosing a union, inhibited Respondent's employees in the exercise of their Section 7 rights and violated Section 8(a)(l) of the Act. Jimmy-Richard Co., Inc., 210 NLRB 802 (1974), enfd. sub non Amalgamated Clothing Workers of America, AFL-CIO v. N.L.R.B., 527 F.2d 803 (C.A.D.C., 1975); Greenville Shipbuilding, Inc., 165 NLRB 891 (1967). I also find that Rubin, by his language about employees seeking to get their signed cards back, solicited the employ- ees to withdraw their signed authorization cards from the Union. Carpenter, Hibbler, Emma Ruth Sanders, and De- lores Ruth Sanders got this message loud and clear. Such solicitation constitutes unlawful interference with the em- ployees' rights to choose their own representative and is a violation of Section 8(a)(l). S. E. Nichols-Dover, Inc.; I Population of town of Tunica 1661. count) of Tunica 11,542. Rand McNally Road Atlas, 1970. Spencer Shoe Corporation and Imac Food Systems. Inc., 167 NLRB 832 (1967). C. The New No-solicitation Rule Rubin testified that, prior to his speech of February 23, Respondent's employee plant handbook contained the fol- lowing rule: "No solicitation of any kind is to be made during working hours." In the text of his speech, Rubin stated that a number of people had come to him telling him they had been pressured into signing cards while they were trying to work at their job. His speech then went on to read as follows: Our plant rules forbids [sic] any kind of solicitation during work time. Ths [sic] rule will be strictly en- forced from now on and anyone who violates this rule will be discharged. This particular warning will be posted on the bulletin board. Immediately after the conclusion of the speech, the Com- pany posted a notice which read: TO ALL EMPLOYEES THE FOLLOWING SUPERSEDES AND EMPHASIZES ALL PREVIOUS RULES DEALING WITH SOLICITATION IN THE PLANT. "NO-SOLICITATION FOR ANY PURPOSE WILL BE ALLOWED DURING WORKING TIME . .. OR DURING THE WORKING TIME OF THE EM- PLOYEE BEING SOLICITED." THE PENALTY FOR THIS VIOLATION WILL BE IMMEADITE sucl DIS- MISSAL. Emma Ruth Sanders, an employee in the binding de- partment. testified that on February 24, at approximately 11:30 p.m., her supervisor, Beatrice O'Neal, approached her at her machine and gave her a sheet of paper which contained the following handwritten heading: The names below are people that don't want a union at Tunica Mfg. Co. Forget any cards that we have signed. Sanders testified that, at the time O'Neal gave her the document, O'Neal asked her "to go around to everybody, to try to get everybody to sign it." Sanders then asked O'Neal if she wanted her to leave her machine, and O'Neal told her to "go ahead." Sanders then left her machine and spent approximately 15 minutes going from machine to machine asking other employees to sign the paper. When she had finished asking other employees to sign, she re- turned the paper to O'Neal. Sanders' signature is the first one on the page which contains the signatures of 20 other employees. Sanders did not know whether these employees were for the Union or against it but knew that they all were her social friends. Delores Norwood Sanders testified that she was working at her machine in the binding department that evening when Emma Ruth Sanders approached her and asked her to sign the petition. Delores Sanders did sign the paper being the 14th signatory on the list. She saw the paper being carried from operator to operator by Emma Sanders and also saw O'Neal in the same work area while the peti- tion was being carried around. Christine Brigham, another binding department employ- 912 TUNICA MANUFACTURING COMPANY ee, testified that she reported to work at 4:15 p.m. that same day when O'Neal approached her and told her "she wanted to talk to me later on." Brigham testified that later the same evening she was at her machine when she heard O'Neal ask Emma Ruth Sanders if she could get anyone to sign the paper and heard Emma Sanders reply "yes." Brig- ham did sign the petition for Sanders, and her name is the third one on the list. Between I I p.m. and midnight, O'Neal came up to Brigham at her machine "and asked her if she signed the petition," and she responded "yes." She then asked O'Neal if O'Neal still wanted to talk to her, and O'Neal answered "no." O'Neal, whose name and activities appear throughout the hearing, and who was still in the employ of Respon- dent, was not called by Respondent to testify; and the tes- timony of Emma Ruth Sanders, Delores Norwood San- ders, and Christine Brigham concerning the circulation of the petition was not denied or contradicted by any witness, and I credit their testimony. I. The practice concerning solicitations prior to February 23 Delores Norwood Sanders testified that, prior to the speech of Rubin on February 23, on many Friday nights the employees bought Avon products during their working time. She also testified that employees would take up col- lections for the needy or sick, or for the family of someone who had died, again chiefly on Fridays. She further testi- fied that she had observed Supervisor O'Neal take up col- lections from employees during working time in working areas for a gift for the night plant manager. Employee Carpenter testified that, before Rubin's speech on February 23, collections were taken up from employees for the benefit of people whose houses had burned and for churches pointing out that his own super- visor, Mary Gann, had solicited contributions for a lady whose house had been burned down, as well as for a sick lady. Carpenter summed it up by stating that such collec- tions were taken up by "everybody, really, from the super- visors on down." The testimony of Delores Sanders and Carpenter stands uncontradicted on collections, as neither O'Neal nor Gann was called to testify by Respondent, and none of the wit- nesses presented by Respondent denied or contradicted the testimony of Sanders and Carpenter concerning solicita- tions made prior to February 23. 2. Concluding findings on the no-solicitation rule In Essex International, Inc.,'2 the Board held that there was a distinction between the terms "working hours" and "working time," and stated that: . . .we shall consider rules which prohibit solicita- tion or distribution during "working time" or "work time" to be valid on their face. On the other hand. those rules which prohibit solicitation or distribution 2211 NLRB 749, 750 (1974) (Chairman Miller and Member Kennedy: Member Penelto concurring: Members Fanning and Jenkins dissenting) during "working hours," unless their impact on lunch and breaktime is clarified, unduly restrict employees' rights under Section 7 of the Act to engage in union solicitation or distribution during their nonworking lime. Thus, it is clear that Respondent's longstanding rule con- tained in its employee handbook prohibiting solicitation during working hours is invalid, as the Company produced no extrinsic evidence showing that the "'working hours' rule was communicated or applied in such a way as to convey an intent clearly to permit solicitation during breaktime or other periods when employees are not active- ly at work." 3 However, this does not make the new rule which refers to worktime. promulgated on February 23, automatically valid. Although valid on its face, it is invalid if it was adopted for a discriminatory purpose. The Wn. H. Block Comprn,, 150 NLRB 341 (1964); Ward Manufactur- ing, Inc., 152 NLRB 1270 (1965). Prior to the appearance of the Union, Respondent, without objection, permitted the employees to purchase cosmetics during worktime and in work areas; supervisors and employees were allowed to take up collections for churches and people in need, and on one occasion a supervisor took up a collection from em- ployees during working time in work areas for the night plant manager. Despite the foregoing relaxed policy, within several days of Respondent's learning of the union campaign, Rubin hastily called a mass meeting of employees and changed the wording of the Company's no-solicitation rule. Early in his speech, Rubin spotlighted the signing of union cards as the reason for the change in the Company's no-solicitation rule by telling them that "We know that they have been huddling up in the corners of the bldg [sic] trying to get people to sign union cards." It was to frustrate the employ- ees' right to sign union authorization cards that this change in wording was so precipitously made as is further empha- sized by Rubin's words near the end of his speech: "If you are being bothered and want to be left alone, all you have to do is let either Mr. Potter or myself know. Our plant rules forbids [sic] any kind of solicitation during worktime. This rule will be strictly enforced from now on and anyone who violates this will be discharged." Respondent's actions after Rubin's speech are in sharp contrast to the wording of the newly posted rule. It is unre- butted that Supervisor O'Neal solicited an employee that evening to solicit other employees to sign a form that re- quested the Union to "forget any cards that we have signed." Thus, while seeking to prohibit employees from engaging in prounion activities, Respondent surreptitiously promoted the solicitations of employees' signatures on an- tiunion petitions. Under all these circumstances, including the timing of the promulgation of the rule, the fact that Respondent de- viated from its past practices concerning solicitation, and the fact that Respondent engaged in disparate action to undermine the Union by promoting an antiunion petition, I am persuaded that Respondent promulgated this rule for a discriminatory purpose; that is, to defeat union organiza- tion. I find therefore that Respondent's new rule violated I Id 913 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) of the Act. The Times Publishing Company, 231 NLRB 207 (1977). D. The Mailing of the Antiunion Petitions to the Union Mrs. Bettie P. Webb, postmaster of the United States Post Office at Tunica, by an affidavit which was received into evidence by stipulation of the parties, identified a reg- istered letter, postmarked February 25 and addressed to D.W.A., 3348 Fontaine Road, Memphis, Tennessee 38116, as having been presented for mailing by "Mr. Ralph Ru- bin" on February 25. Attached to Mrs. Webb's affidavit, and also received into evidence by stipulation, was a copy of the receipt for the postage, registration fee, and returned receipt paid to the United States Postal Service, which shows on its face that the letter was sent from "Box 519, Tunica, MS. 38676 to DWA, 3348 Fontaine Rd., Memphis, TN. 38116." Also attached to Mrs. Webb's affidavit and received by stipulation was a copy of the application for P.O. Box 519 at the Tunica post office. This document shows that P.O. Box 519 was applied for and assigned to Ralph D. Potter on September 27, 1973, and continued to be assigned to Potter up to and including the date of the postmaster's affidavit of April 28. Potter was the day plant manager of Respondent and an admitted statutory super- visor. The envelope bearing the same registration number as the letter that had been identified by Postmaster Webb, 297, was also received by stipulation of the parties. The parties further stipulated that the envelope was received by the Union on or about February 27 or 28, and that at the time of its receipt it contained five sheets of paper, each bearing signatures under the following heading: "The names below are people who don't want a union at Tunica Mfg. Co. Forget any cards we have signed." These five signature sheets were also received into evidence by stipu- lation as General Counsel's Exhibits 5(a), (b), (c), (d), and (e). Emma Sanders identified General Counsel's Exhibit 5(d) as the petition she was given by her supervisor, O'Neal, on February 24, and as the petition she had circulated among other employees during their working time and had there- after returned to O'Neal. Delores Norwood Sanders identified General Counsel's Exhibit 5(a) as the petition presented to her by employee Vita Manues, an inspector, on the same day that she had signed a petition at the request of employee Emma San- ders, February 25. She testified that Manues came to her prior to Emma Sanders' approach and that she told Man- ues that she had already signed the petition, although she had not. Delores Sanders was able to identify this docu- ment at the hearing because Manues' name was on top of the list, just as she had seen it on February 25. Later, when Emma Sanders approached her, she had signed the petition Sanders had given her and on which Sanders' name ap- peared as the first on the list. Vice President Rubin and Plant Manager Potter both testified on behalf of Respondent but did not deny or con- tradict the statements contained in the affidavit of Post- master Webb. E. Cooke's Conversation With Rubin Hugh Cooke testified that he began working at Respon- dent's plant in Tunica in or about 1968 starting in the ship- ping department. As the years progressed, he drove the company mail truck, picked up mail and parts, and in 1975 he commenced operating a forklift truck around the plant. About 3 months prior to the hearing, he stopped operating the forklift truck and began sweeping in the warehouse, and carrying goods through the factory on a two-wheel handtruck. Cooke learned early in February that a union organizing campaign was in progress when a man gave him a union card which he signed. After receiving "roughly guessing" 35 or 40 blank cards, he asked several other employees to sign cards. He talked to employees about signing the cards while in the plant, on the parking lot, and at night at their homes. Cooke testified that, around the first of March, he was called to the office of the vice president where he was asked by Rubin what he was going to do with those union cards. 14 He said that Rubin then told him that "he didn't believe in unions, and that we had talked about the NAACP and all that kind of stuff five or six years ago, and he didn't see why I was fooling with that-with them union cards." Cooke further testified that, about a week later, Rubin called him into his office, asked him if he had any more union cards, and, after Cooke replied "Yes," Rubin showed him two blank cards and gave them to him. Cooke also testified that Rubin told him, "[Y]ou got this thing started and you've got to get it stopped," and then handed him a piece of paper that he (Rubin) had been holding in his hand and told him, "[T]he only way you can get it stopped is to take this petition and get the people to sign it that you . . . gave the cards to." Cooke recalled that the petition read something like, "We want our cards back, DWA"; and, when shown General Counsel's Exhibit 14, he identified it as the paper handed to him by Rubin. This piece of lined copy-book paper carried the following hand- written message across the top: "DWA Union, We want our cards back. We don't want a Union." Cooke testified that he saw Rubin write the message on the piece of paper while he was in the office. When Rubin testified he did not deny that General Counsel's Exhibit 14 was in his handwriting. After Rubin handed the paper to Cooke and asked him to take it around and get it signed, Cooke told Rubin, "I'm kind of afraid to do that now ... because all these people [are] liable to get mad at me if I do that now." Cooke testified that, during the same conversation, Ru- bin asked him if he had any more union cards, and, when he replied yes, Rubin told him that he would like to have about six or eight for his attorney. When Cooke told him they were home, Rubin told him to go home and get them. Cooke went home, got the cards, and brought them back to Rubin. Cooke then went back to sweeping in the ware- " Cooke's name was listed on the Union's letter of February 28 to Re- spondent as one of the 16 employees who would be active on the Union's behalf. 914 TUNICA MANUFACTURING COMPANY house when Rubin approached him and told him, "[Y]ou got this thing started . .. .You're going to get it stopped one way or another . . if you don't I'm going to throw you and your wife out of Tunica County." Cooke plaintive- ly replied, "Well, Mr. Rubin, I went back and got the cards like you asked me," as that was all he knew to do. Rubin's version was that I or 2 days after his speech on February 23, two employees brought unsigned union cards to him, stated that Cooke had given the cards to them, "and that they were giving them back to me to give to him." Rubin then called Cooke to the office, handed him the cards, told him where they were coming from, "and that I was delivering them back to him as per their re- quest." Rubin said that Cooke could not look him in the eye, said nothing for a moment or two, "and finally mum- bled something or other about having made a mistake, and that he was sorry." Rubin then sent Cooke back to his department after telling him there was nothing else to dis- cuss. Rubin testified that, about I hour later, Cooke returned to this office "this time almost at the point of tears" and "stated that he did not want to have anything further to do with the union . .. and wanted to know what to do." Ru- bin continued as follows: And I told him in plain language that he had gotten himself into this, and it was up to him to get himself out of it, that there was nothing I could do to help him. He kept repeating the same request, statement, over again several times. And I finally wrote out for him on a piece of paper a request to have them return his card. And, he took the paper and he left. Rubin testified that, later in the afternoon, he was in the warehouse when Cooke stopped him and stated that he wanted to get out of the union, but he was scared and afraid that "they would burn his house down if he told them that he wanted to get out of it." Rubin said he told Cooke once more that there was nothing more that he could do for him. On the following morning, Cooke came in to see Rubin and said that he could bring the vice president the cards that he had, and "I told him he could do what he wanted to do about it." Later that day, Cooke did bring some cards back to Rubin and that was the last conversation he had with Cooke. The credibility conflict in the testimony of these two wit- nesses is of the sharpest nature. Cooke was an uneducated, ill-at-ease witness who repeatedly used the phrase "roughly guessing" when referring to dates and numbers. However, he impressed me as an honest witness who was sincerely struggling to tell the facts as he truthfully recalled them, and I credit his testimony as to its basic contents. Rubin was an articulate, veteran witness, whose testimony im- pressed me as contrived, and I do not credit it. In addition, I do not credit Rubin's version because of its inherent im- plausibility. When, according to Rubin, two unnamed em- ployees brought union cards to him and asked him to re- turn them to Cooke, it strains credulity that this vigorous, dynamic vice president and general manager would supine- ly carry out their request and not tell these two employees to return the cards themselves. Rubin's admission that, af- ter many entreaties from Cooke, he finally decided to help him get his card back by writing on a piece of paper a request to have "them" return his card, does not bear scru- tiny. Although Cooke identified with General Counsel's Exhibit 14 as the document written by Rubin, Rubin did not contest Cooke's testimony and did not deny that it was his handwriting. Certainly, if it had not been Rubin's hand- writing, he would have strongly pointed this out. F. Cooke's Conversation With Drew Wade Cooke testified that, approximately I week after his last conversation with Rubin, his supervisor, Drew Wade, ap- proached him in the warehouse where he was working and told Cooke that he was going to tell him something. "He said, you'd better be careful if you're dnnking or anything. Mr. Rubin said that if he had you caught with one drop of whiskey or one drop of beer on your breath that he was going to have you locked up in jail." Wade, who was an admitted statutory supervisor, was not called by Respon- dent to testify, and the testimony of Cooke regarding this conversation was not denied or contradicted by Respon- dent's witnesses. G. The Lee Greene, Jr., Conversation With Rubin Lee Greene, Jr., who had worked for Respondent since 1968, testified that sometime in March he was called on the plant interphone and instructed to go to the main office. Greene knew that his name appeared on the Union's letter to the Company advising it of the Union's organizing cam- paign. Upon arriving at the vice president's office, Rubin told him that he had received a telegram and that it had surprised him because Greene's name was the first one on the list. According to Greene, when asked by Rubin "why I would do him that way," Greene responded, "I told him I couldn't get this union myself, I had to have the peoples. The peoples also had to agree with it. He said I was doing him wrong." Greene also testified that Rubin reminded him that in the past Rubin had assisted him in securing a loan for furniture and that Rubin said, "You come to me when you needed help and I gave it to you. Where was the union then?" Greene's account of this conversation was not denied or contradicted by Rubin, and I credit it. H. The Joyce Bradshaw Conversation With Joan Swan Joyce Bradshaw, an employee in the binding depart- ment, testified that on February 23, after Rubin had given his morning speech, her supervisor, Joan Swan (an admit- ted statutory supervisor), came up to her while she was at her machine and said, "Joyce. we're having a whole lot of trouble at our plant. And we're trying to help you." Brad- shaw then testified that Swan said "We wouldn't have no job if this union stuff come through." Swan was not called to testify on behalf of Respondent and the testimony of Bradshaw regarding this conversation 915 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not denied or contradicted by Respondent's witnesses, and I credit it. I. The Discharge of Bradshaw, Watson, Brigham, and Wheeler I. Joyce Bradshaw Joyce Bradshaw, hired on September 19, 1973, was ter- minated on March 101 allegedly because of her failure to achieve minimum production standards. The complaint al- leges that she, as well as Watson, Brigham and Wheeler were discharged for discriminatory reasons, i.e., because they joined or assisted the Union, or engaged in other union activities or concerted activities. Prior to going to work for Respondent, Bradshaw, who was hard of hearing and had a severe speech impediment, had received some training at the Alled Industries work shop.'6 Once she started with Respondent, she worked in the binding department '7 as a binder for her 3-1/2 years of employment. She testified that she signed a union card dur- ing the week of February 18 while on her way home from work but did not attend any union meetings. Bradshaw's undenied testimony about her conversation with Supervis- or Joan Swan about jobs and the Union on February 23 appears in section 11,H above. On her final day of employment, Swan accompanied her to Plant Manager Potter's office where she testified she was told by Potter "that my production was low"; that "he was going to lay me off." Bradshaw gave various reasons for her low production. She first testified that while operating her binding machine "most of the time I had trouble with my thread, and I would skip stitches." She admitted that her production dropped in January and stated that it was caused "[Bly them getting me off of my machine. And just like the bind- ing would pile up on me, and they would take me off my machine, and send me to carry out binding." She would carry the binding to other employees to work on it. She testified that she kept carrying binding out 2 or 3 days a week, sometimes a whole week. She also testified that dur- ing the last month she worked she repaired other employ- ees work for 2 or 3 days a week, mostly all day. On cross-examination, she admitted that she thought a time ticket was made to show that she was off production when not working on binding and when doing some other job like fixing stitches or taking pads to other operators but stated that she did not receive such tickets. The final warning issued to Bradshaw (on the date of her discharge), signed by herself, stated as the cause, "Termi- nated for low production 76% avg. for last 5 wks. 4 prior warnings." 18 15 Bradshaw testified that the last day she worked was March 5. but C om- pany records establish March 10 as the date of termination. 16Allied Industries was a sheltered work shop program in Tunica estab- lished by the State of Mississippi for the specialized training of handicapped people. I Production records produced by the Company show 27 operators em- ployed in the binding department on the day shift in the first week of March with 22 operators on the night shift. Operators were paid on a piece-rate basis. On cross-examination, Bradshaw admitted that she signed a warning slip dated November 10, 1976, for low production, and that it read "4th and final." She did recall that Potter then told her that "Your job went back down. But we want you to go back up on your production. If you don't go back up on your production, we're going to lay you off." She also admitted that Potter and Swan had pre- viously informed her that she had to make a certain per- centage of production or be fired. Respondent's production records show that during her last 5 weeks of employment Bradshaw had production per- centage figures of 77, 87, 73, 68, and 84 for a 5-week aver- age of 76.3. She had a 10-week average of 74.7 percent. Respondent's Defense Ralph D. Potter, who had served as the plant manager for the past 4 years, testified that he administered the per- sonnel policies of the Company.19 Production records were kept for six departments, binding, quilting, bagging, cut- ting, lining, and sewing. Rates for the binding department were set according to the amount of allowed time required to make one unit of one product, so that there were differ- ent rates of time for an infant's crib pad as against an adult mattress pad. Built into the rates is the base time that it actually takes to perform the job with 5 percent put in for personal time, 5 percent for fatigue, and 5 percent for ma- chine or any other unavoidable delays. The unavoidable delay factor is set at 20 minutes a day to cover small inter- ruptions in the operators work that would not justify her getting a time ticket. When an operator notices some problem in her machine, the supervisor is to be so informed so that the supervisor can write up a time ticket to cover the time that the opera- tor was off production. The time so lost is not figured into the operator's performance, and she is paid on a straight hourly basis for the downtime. Potter testified that for new employees the Company used a 12-week training period. As plant manager, it was his job to achieve 100 percent production or better, but certain factors, such as operators in training, operators not doing their best, or operators with family or emotional problems, would bring the average below 100 percent. Dai- ly records were kept on each binding employee's produc- tivity. Production records were complied every week for each employee, and, on a Monday or Tuesday of the fol- lowing week, Potter would review them. Potter further testified that there was a company policy of writing warnings for low production, so as to advise the operator that her performance was not adequate to keep her in her job and to counsel her so as to eliminate any need for future warnings. He stated there was no fixed number of such warnings that would be given an operator before she would be discharged, but that it varied depend- ing on circumstances, and that each operator was consid- 's The termination of employment notice issued to Bradshaw on the same date after "Explanation" read: "Released for low production less than 80% production six wks. average and 4 prior warnings." This was signed by Potter. `9 Potter's testimony on the procedures used in the operation of the plant were uncontradicted, and I credit it. 916 TUNICA MANUFACTURING COMPANY ered individually with the employees attitude always a con- sideration. Another factor to be considered was whether it was a peak season. If orders are coming in faster than pads can be made, lower standards of production are allowed as the Company does not want to cancel orders or lose cus- tomers. He testified that, in March, the plant was coming off a peak season, although admitting that the peak period usually ends in January 2 as it did in 1976. Potter testified that he knew Bradshaw and that she was capable of sewing at 100 percent as she had done on many occasions since 1973.2 1 However, she had a tendency to fail back off of the rate down to an intolerable level, and she would only go back up and achieve production after she had received a warning that her job was in jeopardy. On or about March 8 or 9, Potter testified that he had reviewed Bradshaw's production records, as well as those of Watson, another day shift employee, and night shift em- ployees Brigham and Wheeler, for the previous 15 or 18 weeks. When asked by General Counsel as to the Com- pany's policy on the number of written warnings an em- ployee could receive prior to discharge, he testified: Well, on March 9th, we used as a guideline on this group of people, that if the warnings exceeded three, and they had been given an opportunity to improve the situation, and their production was below 80 per- cent on the five weeks that we averaged to evaluate it at that point, that we would discharge them then.22 On March 10, Bradshaw had received four warnings and she was discharged. 2. Henrietta Watson Henrietta Watson, hired March 5, 1974, was terminated on the afternoon of March 10 allegedly because of low production. Watson testified that she started in the plant's butt seam- ing department, moved to the seaming department, and in the summer of 1976 was transferred to the binding depart- ment. Watson operated a sewing machine in all three de- partments. In early February, she learned that there was a union campaign going on and later signed a union card. She attended a union meeting at the New Antioch Church in the same month when she received some blank cards from Scott, the union representative, and thereafter se- cured the signature of one employee while in her car on the plant parking lot. Watson also allowed the Union to use her name on the letter to the Company that listed employ- ees who would be active on the Union's behalf. On March 10, she was summoned to the plant manager's office where Potter told her that, "[M]y production was 70 :2 Company records show that nine employees were terminated in Janu- ary 1976 for low production. 21 Production records were not produced for the period 1973 up to No- vember 2, 1975. However, Company records from that last date through March 3 show that Bradshaw achieved a production rate of 100 percent or more on only one occasion, and that was on November 28. 1976. when her recorded average was 101 percent. 22 Later on cross-examination, Potter qualified this statement by stating he did not mean to imply that that was the only reason that the four em- ployees were terminated. percent and 70 percent or 75 percent wasn't enough, that it had to be 100 percent." Company production records show that Watson's average for her last 5 weeks of employment was 67.2 percent based on weekly totals of 66, 62, 65, 66, and 67 percent. Watson testified that two other veteran employees were doing the same kind of work she was doing, Willie Mae Woods and Annie Pearl Watson. Their production averages for the same period, as shown in Re- spondent's records, were 90.3 and 82.3 percent. Watson also testified on direct that no supervisor at any time com- plained about her rate of production. On cross-examination, Watson was found not to be a credible witness. Her prehearing affidavit read that she did not pass out any union cards. The same affidavit read that right after Christmas 1976 Potter had spoken to her about her low production. When shown Respondent's Exhibit 2, a warning notice dated "2/8/77" showing "Low produc- tion 66%', and marked as the third warning, she admitted that it carried her signature. Respondent's Defense Potter testified that he discharged Watson because she was a long term low producer only producing at the 60-to 70-percent level of production. He had talked to her on numerous occasions as to why she could not achieve 100 percent but to no avail. 3. Christine Brigham Christine Brigham, hired on December 15, 1975, was ter- minated on the evening of May 9 allegedly because of low production and not progressing in her job. Brigham operat- ed a sewing machine in the binding department on the night shift under Supervisor O'Neal. Although the record is not clear as to when O'Neal told her, Brigham admitted that O'Neal did tell her that she was expected to make 100 percent production, and that she was never told to make any other percentage other than 100 percent. Brigham first learned of the Union's organizing cam- paign on February 17 when she was at the house of anoth- er employee. Irene Sims. At Sims' request, she signed a Union card.23 Brigham accepted several cards from Emma Sanders and about a week and a half later asked two other employees to sign cards while they were at her machine. About 2 weeks after she signed her card, she attended a union meeting at the church and then attended one more meeting before her discharge. On the evening of March 9, she was called to the office of Night Shift Manager Ron Alexander who had her folder before him. O'Neal was also present. When asked to state what was said in Alexander's office, she testified: He told me that he had always-he told me that he had talked to me before about production. And he asked me he said, I told you to bring your production percentage up. And I told him, I had tried and I had brought it up 2i Both Sims aind Brigham's na;mes % ere set forth in the Union's letter to the Compian on hebrua.lr 28 ith Sims' name headlng the list Sims was not disch:lrged 917 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to 83. And he said, it was in the 70's at first-and [then] he said, he added 4 other percentages with the last one, and it added up to 77 percent. He said it wasn't enough. Alexander stated to her that she knew she had four or five warnings, and she agreed. She was thereupon terminat- ed. On cross-examination, Brigham admitted that she knew that the Company reviewed her production records on a weekly basis and also admitted that she had received three warnings about low production, one in March 1976, one in November 1976, and one in February. She also admitted that at times she had made "very good production" but denied that she had told Alexander she didn't care if she made production. Brigham was a very young, serious wit- ness, and I credit her testimony generally. Company production records show that during her last 5 weeks of employment she was absent the first week, and that her production percentage averages for the next 4 weeks were 92, 75, 65, and 83, percent. For these 4 weeks the records show an average percentage of 77.3 whereas the correct figure is 78.7. These same records show that, for the same period of time, Brigham had a higher production rate than seven other experienced night shift binding employ- ees,24 and a lower production rate than eight other veteran operators. For the 5 weeks prior to these weeks, she had a production percentage average of 89.4 percent. Respondent's Defense Ron Alexander was the assistant plant manager in charge of the night shift during his period of employment with Respondent from May 1976 until its cessation on April 4. Alexander testified that he received production figures on a Monday or a Tuesday and would then call in employees to discuss their progress good or bad. He testi- fied that he had personally observed Brigham not working steady. He further testified that he had talked to her every week for over a period of a month, and that he had made up his mind that, if she did not show some desire to do "a little bit better job," he was going to terminate her. It was Alexander's position that, "She could make production on any given day or week that she wanted to, but she didn't try, and she didn't have any desire whatsoever to do well." According to Alexander, he called Brigham to his office as he had done on a number of occasions before and told her she was going to have to show some sort of improvement, and she stated that she really didn't care if she made pro- duction or not. He then terminated her. Alexander testified that by production standards he meant 100 percent, but that he had no specific percentage in mind when he discharged Brigham, and that he never conveyed to her any specific percentage that she had to make. 24 Rudd. Norwood, Pious. Rowell, Scott, Sutton, and Betty Sanders. Brig- ham also had a higher rate than five other operators, but, since these were all hired after January I. I have not compared their production to Brigham's. 4. Rosetta Lumpkin Wheeler Rosetta Lumpkin Wheeler, hired in July 1975 when her family name was Lumpkin, was discharged on the evening of March 10 allegedly because of her low production. Wheeler testified that she worked as a binder in the bind- ing department from the time she was hired until January 1976 when she went on maternity leave. In the following April, she returned to work and was placed on a mending machine for about a week, and then was moved back to the binding machine and worked as a sewing machine operator in the binding department until the time of her discharge. Wheeler admitted that Supervisor O'Neal had said that ev- erybody had to make 100 percent. Wheeler signed a union card in the middle of February during a break from work while in the parking lot of the plant. She did not attend any union meetings until after her discharge, and she did not pass out any cards. She testified that her supervisor, O'Neal, on the night after Rubin's speech, approached her at her machine and asked her if she wanted a union. She told O'Neal that she didn't know because she had never worked under a union before. O'Neal then replied to her that she had and said, "[W]e didn't need one" and "a lot of people would be out of a job," and O'Neal then asked her "if I wanted that." Wheel- er told her no. Wheeler's testimony as to this conversation with her supervisor was not contradicted, and I credit it. On March 10, O'Neal took Wheeler to the office of Night Manager Alexander where she was told that her pro- duction had dropped back to 65 percent, and that he was sorry but he had to let her go. She further testified that Alexander said he was thinking of transferring me back to mending, "but he couldn't because of all the mess that came up about the union." According to Wheeler, Alexan- der stated that she could reapply at a later time, and that she had been a good worker and he was sorry. On cross-examination, Wheeler admitted that she had wanted to come back to work in March 1976 but was re- fused because her past production was too low. She did return in April. She further admitted that in December 1976 she had been called to Alexander's office and re- ceived a warning that her production was too low 25 and that she needed to get her production up. Respondent's Defense Alexander testified that he had made up his mind to discharge Wheeler 2 or 3 weeks prior to her actual dis- charge because of her consistent low production.2 6 He also testified that, on the night of Wheeler's termination, she had stated that she would never be able to make produc- tion. When Wheeler was questioned by Respondent's counsel as to whether she had told Alexander that she could not make production, she first answered that she did not remember. When pressed as to had she said anything similar to it, she at first answered, "No, I didn't"; she then 2' Company records show warnings on "4-9-76." "11-9-76," and "2-28- 77." "' Company records show that for her last 10 weeks of work she had production percentage figures o' 62. 74, 63, 75, 64, 65, 69, 59. 68, and 75 for a 10-week average of 67.4 percent and a 5-week average of 67.2 percent. 918 TUNICA MANUFACTURING COMPANY qualified her answer by stating, "I don't remember saying it." I credit Alexander's testimony that she said she could not make production. Company records show that, during the period of her employment, she never made 100 percent with 78 percent being the highest figure she ever attained. Alexander admitted that he spoke with Wheeler about 2 weeks prior to her termination about the possibility of her being transferred to a different department. However, when he discussed this with Plant Manager Potter, he was told by Potter that it would not be allowed because it would be downgrading the other departments and would set a precedent. Potter was not going to have an employee who was not capable of meeting the production standards in her own department placed in another department.2" Al- exander, who at the time of testifying was no longer an employee of Respondent, impressed me as a sincere, straightforward witness with no ax to grind. I credit Alexander's testimony and do not credit Wheeler's testi- mony that Alexander said, "[H]e could not transfer her back to mending because of all the mess that came up about the Union." 5. Conclusions a. Whether Respondent laid off Bradshaw, Watson, Brigham, or Wheeler for legitimate economic reasons or for discriminatory and unlawful reasons presents a difficult question of fact, the resolution of which depends upon a weighing of all the attendant circumstances "to determine what motivations truly dominated the employer in laying off or discharging the employee[s]." N.L.R.B. v. Jones Sau- sage Co. and Jones Abattoir Company, 257 F.2d 878. 882 (C.A. 4, 1958). In determining this question, it must be borne in mind that an employee may be discharged "for a good reason, a poor reason, or no reason at all, so long as the terms of the statute are not violated." N.L.R.B. v. Con- denser Corporation of America, 128 F.2d 67, 75 (C.A. 3, 1942). In the absence of discrimination, the Board may not substitute its judgment for that of the employer in selec- tions for discharge. "These are matters to be determined by the management." N.L.R.B. v. Montgomery Ward & Com- pany, 152 F.2d 486, 490 (C.A. 8, 1946). Based on the entire record, I find that the General Coun- sel has failed to meet the burden of establishing by a pre- ponderance of the substantial credible evidence that the discharges of the operators involved herein were unlawful- ly motivated. b. Company records establish conclusively that Respon- dent had a tremendous turnover in the number of its em- ployees for the period of January 1, 1976, through May 2. During this period, 60 employees were discharged with 31 of that total being discharged for failure to achieve produc- tion and 15 for poor working habits. Employees totaling 138 quit for miscellaneous reasons such as "Unhappy with 2 Potter testified that he remembered Alexander speaking to him about Wheeler, as Alexander wanted to determine what company police was as to transferring an employee who was not making production. Potter testified that permanent transfers at an employee's request, or for their convenience. are only made when the operator is achieving production in the job to which she is already assigned. job" and "Unhappy here." and 70 employees quit with no assigned reason. The total turnover, exclusive of 3 deaths, amounted to 327 employees which meant that Respondent had a 100-percent turnover of its personnel in this 16- month period of time. Thus, with this high rate of turnover, the discharge of these four employees28 was not an un- usual event. Also, the Company was coming off its peak season, and credited evidence established that at the end of the peak season in the previous year, January 1976, nine employees had been discharged for failure to achieve production stan- dards. No employee had been discharged in January or February for such failure or in December 1976. The last time prior to March that any production employees had been discharged was in November 1976 when two employ- ees, Ethel M. Austin and Daisy Johnson, had been dis- charged for failure to achieve production. The production standard set by the Company, and its goal for each operator per day. was literally 100 percent of the work assignment. An examination of Respondent's production records show that some operators exceeded 100 percent of their weekly assignments, although most opera- tors did not. However, the record is clear that the operators knew that the standard expected of each employee was 100 percent. as Brigham and Wheeler testified that their super- visor, O'Neal, had told them that all operators were expect- ed to make 100 percent and no other. Bradshaw admitted that Potter and Swan had told her she had to make a cer- tain percentage of production or be fired. The operators were keenly aware of their production figures, as these were calculated daily and pressure was constantly placed on them by a regular weekly conference with their super- visor about their production good or bad. Production stan- dards were an overriding and ominous cloud over the heads of Respondent's operators long before the Union made its appearance. The record does not indicate that Respondent had any established rule which determined when an employee would be discharged for failure to achieve production. One of the reasons for this policy was that the Company would put up with lower production rates by operators when the plant was busy and had many outstanding orders. Potter could not remember what standards he applied in previous months when he terminated employees. However, in March he did establish guidelines for that interval of time consisting of three main elements: (1) four warnings, (2) production less than 80 percent, and (3) low production percentages within a time period of the last 5 weeks of work .29 Thus, when Bradshaw was discharged by Potter, she had admittedly received four warnings about low production, February 1971, November 1976 (marked fourth and final), January, and on March 10. Her 5-week production figure of 77.8 was lower than 14 other day operators who had been there since January I and was only greater than that of Henrietta Watson and Billie Sue Russell, both of whom were discharged on the same day. :' A fifth emplosee. Billihe Sue Russell, was also discharged on that date for lowv production, but no charge was filed on her behalf :9 Potter later testified that he actuall? reviewed a time period of I5 or 18 weeks for the March disch;argees 919 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Watson, prior to her meeting with Potter on March 10, had accumulated three warnings receiving the last on Feb- ruary 28. Her 5-week production average of 67.3 placed her as the next lowest producer of the experienced operators on the day shift. Operators totaling 15 had a higher aver- age, and she was only ahead of Billie Sue Russell, who was also discharged on the same day for low production having a 5-week average of 65.7. Willie Mae Woods and Anne Pearl Watts, who Watson stated did the same kind of work she did, had far higher averages than Watson having 5- week averages of 90.3 and 82.3. respectively. Brigham's discharge by Night Manager Alexander is the most difficult of the four discharges to assess, as she was the only one of the four who could possibly be termed a union activist. Her name had been on the union letter of February 28 to Respondent, she had attended two union meetings, and she had asked two employees to sign author- ization cards at her machine. She also had the highest pro- duction rate of the four, 78.7 percent, for the previous 5- week period. However, she had previously received warn- ings about low production in March 1976, November 1976, and on February 28. Brigham's attitude about production, right or wrong, bothered Alexander on March 9, and he discharged her. While Brigham was the best producer of the four discriminatees, she was not one of the leading producers on her shift. Experienced operators totaling nine had a higher average than she did, and only four were lower, Pious, Sanders, Norwood, and Rudd. It is to be not- ed that Pious, Norwood, and Rudd each had two warnings, and Sanders had only two prior to March 9 receiving her third on March 9. Thus, on March 9, Sanders did not meet one of Potter's current guidelines for discharge, four warn- ings. Wheeler was a persistent low producer. In March 1976, she had wanted to return to work at the plant but permis- sion had admittedly been refused because her past produc- tion was too low. When she returned in April, she re- mained a chronic low producer and received warnings in April 1976, November 1976. and on February 28. On the night of her discharge, she told Alexander that she could not make production and her record amply bore this out. When she was discharged she was the lowest producer on the night shift of the 14 operators who had worked at the plant since January 1. Respondent's use of written warnings was not some new tactic born out of the union's organization campaign. The imposition of warnings had long been used by Respondent, and their imposition was well known prior to the advent of the Union as a tool of Respondent to keep production up. Production records graphically show that warnings about low production were many and frequent and had been giv- en not only to low producers but at various intervals to the very top producers. It cannot be overlooked that the four discriminatees par- ticipated in very minimal union activities. Bradshaw and Wheeler's sole participation was to sign a union card. Wat- son, whose name appeared in the union notification letter with Brigham's, attended one meeting and secured one signed authorization card; Brigham attended one more meeting than Watson and secured one more signed card. It is clear that none of these four was the traditional in-plant organizer and spearhead of a union campaign. It is also to be noted that the four other binding department employees named in the Union's February 28 letter were not dis- charged. There is no doubt that the Respondent had strong union animus when the Union commenced its organizing cam- paign in February and committed numerous violations of Section 8(a)(l1). I have also taken official notice, as back- ground, of various violations of the Act perpetrated by Re- spondent in 1970 in the first Tunica Manufacturing Compa- ny, Inc. case, 182 NLRB 729 (1970). However, it is to be noted that no employees were discharged by Respondent in that case as part of its antiunion campaign. Accordingly, considering the record as a whole, I find and conclude that the preponderance of evidence does not support the allegations of the complaint that the discharges of Brigham, Bradshaw, Watson, and Wheeler were viola- tive of Section 8(a)(3) and 8(a)(i) of the Act, and I shall recommend the dismissal of these allegations. Spotlight Company, Inc., 192 NLRB 491 (1971). J. The Discharge of Cooke 1. The facts Cooke, who was working as a janitor in Respondent's plant after 8 years of employment, as more fully set forth in section III,E above, was terminated as of March 17 for failure to report his absence for 3 days which Respondent initially alleged as a company rule. General Counsel con- tends that Respondent's reason for the discharge is pretex- tual and that Cooke was in fact discharged because of his union activities. On Tuesday, March 8,30 Cooke spoke to his supervisor, Drew Wade, about taking time off to get his teeth pulled telling Wade, "[M]y teeth are killing me and I've got to take off and get them pulled." 31 On the following day Cooke went to see Dr. John D. Rogers, a dental surgeon in Senatobia, Mississippi, which is about 28 to 30 miles from Tunica, and received a prescription on that day for pain relief, and he also received one the next day. On March 10 and 11, Cooke went to a different dental surgeon in Sena- tobia, Dr. Hugh N. Monteith, and received a prescription for pain relief each day. Cooke also secured from Dr. Mon- teith an undated note that read, "Mr. Cooke was in my office 3/10/77 and 3/11/77 for pain. Also for prescrip- tion." Cooke, who drove his wife to and from work at the plant each day (where she worked on the day shift), testi- fied that on May 11, a Friday, upon arriving at the plant around 7:15 a.m., he gave Dr. Monteith's note to Wade telling him that he would have to be off for awhile, al- though he did not know how long it would be because he was going to have all of his teeth pulled. 32 Cooke testified '° This date is established by the testimony of Potter, who testified that he was advised by Supervisor Wade on March 8 that (Cooke would be absent the next day to go to the dentist, I While Cooke was very vague about dates of events. there is no real dispute about the dates involved in this incident as they are established by documents or the testimony of Respondent's witness. " Potter testified that Cooke gave the document to Wade on Monday morning, March 14. I credit Respondent's date of March 14 as Cooke was very indefinite and unsure about all dates. 920 TUNICA MANUFACTURING COMPANY that Wade said, "Okay." Cooke continued to visit dentists receiving a prescription from Dr. Rogers on March 14. Cooke testified that he was shopping for the cheapest price he could get to have his teeth extracted and, on March 15. went to Dr. Pruitt in Como, Mississippi, from whom he also received a prescription for pain. Cooke settled on Dr. Rogers to perform his dental services, and, on March 18, Dr. Rogers extracted three teeth and gave him two pre- scriptions, one for antibiotics and one for pain relief. Cooke testified that on the morning of March 21. a Monday, he called Plant Manager Potter and told him that he would like to go back to work. When Potter told him that he had considered Cooke as having quit, Cooke in- formed him that he had not quit and had gotten better. Potter then told him to come to the plant that afternoon and talk to him and that he might reconsider. Cooke did go to the plant that afternoon, did talk to Potter, and Potter again said he would reconsider Cooke's case. Cooke heard nothing further from Potter. Respondent's Defense Potter testified that Respondent follows a 3-day call-in rule; i.e., when a person misses work for I day without notice and continues to miss 2 more days without notice, that person is considered as having quit, termed by the Company as a voluntary quit. Respondent states in its brief that "for the period between March 9 and March 14, Cooke was excused because of a doctor's statement which he gave to Supervisor Wade. It was his unexcused absence and failure to notify between March 14 and 17 that caused his absence to be construed as a voluntary quit." Potter admitted that on the morning of March 14, when Cooke gave Dr. Monteith's notice to Wade, Wade in- formed him that Cooke said "that he had to go back." From that Monday until the following Monday, Potter heard nothing further from Cooke or from his wife. On the morning of March 21, Potter hired a replacement for Cooke, Derick Engle, at approximately 9 a.m. Engle's time- card for the week ending March 27 shows that, on the first Monday of the week, the timecard was punched at 9:22 a.m. Between 10 a.m. and noon, Potter received a tele- phone call from Cooke, who told him that he had not quit his job, that he had been to another dentist, and that he had a piece of paper to prove it. Potter informed Cooke that, according to his normal policy, he considered him as having quit on the third day after he had not heard from him. When Cooke stated that he had a paper to prove where he was, Potter suggested that Cooke bring the paper to him, and he would take it under advisement as to whether or not he would modify his decision. Cooke arrived at about 4 p.m. that afternoon bringing with him an undated statement from Dr. Rogers addressed "To Whome it may concern," which stated that "Hugh Cooke was in our office for treatment on 3/9/77, 3/14/77, 3/18/T7." Potter testified that the manner in which Wade informed him about Cooke going to the dentist was not the correct way that he should receive messages about people being off stating, "They should adhere to the rulebook. I encourage them to adhere to the rulebook, when the opportunity is there and there is no reason they cannot adhere to the rulebook." Respondent's employee booklet contains an entire page under the caption "Reporting of Absences." In pertinent part, it reads as follows: When you know you will have to be absent for any reason you are required to notify the office prior to the beginning of the shift, if possible, or no later than the end of the shift, advising us of the reason, and when you expect to return. If it is necessary for you to be absent and we do not hear from you by the following day, you may be con- sidered as having quit. In the case of illness, the Company may require a doctor's statement in a case of frequent absences. On the same page it states that sickness of an employee "will be considered as an excused absence." After Potter stated that Cooke was terminated because of the Company's 3-day rule with regard to reporting of absences, he admitted that he had misstated calling it the Company's 3-day rule. as it was actually a personal polics rather than a rule, the employee booklet indicating that a person may be terminated on the next work day for failing to report in or notify. He stated that the policy he was following had been a rule at his previous place of employ- ment wherein, if a person missed work without notification and continued to miss 2 more days without notification, then the person was considered as having quit. Potter ad- mitted that the employee booklet was still being distributed to new employees at Respondent's plant and also admitted that the employees had not been told that there was a com- pany policy that an employee must call in; and, if you do not call in over a 3-day period and advise the Company of your circumstances, you will be discharged. Potter testified that 47 employees quit in 1976 under this 3-day policy. Respondent's Exhibit 4, a compilation of all employees separated from employment with Respondent for the period of January 1976 through April, shows Cooke's date of termination as March II. which is incor- rect under any theory. This compilation reflects under the heading "Manner of Termination" the names of 43 em- ployees other than Cooke as "Quit (3 day abs.)" and, under the heading "Reason for Termination." "Company Rule." However, there is nothing in the record to indicate that anN of these 43 employees ever questioned or challenged their termination for any reason including the asserted company rule reason. The same compilation lists the names of 211 employees as "Voluntary Quits" citing various reasons such as "another job" and "Unhappy here" and in 69 in- stances giving no reason. 2. Conclusions Based upon the entire record, and the facts recited in this subsection, it is m:s conclusion and I find that Cooke was discharged for engaging in union activity, and that the reason advanced bs Respondent for his termination. that 921 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he violated the Company's 3-day call-in rule, is a pretext to disguise the real reason. a. Cooke was a leading in-plant organizer, whose name not only was listed on the Union's letter of February 28 to Respondent, but who actively participated in the Union's organizing campaign. After receiving a number of blank authorization cards, he had contacted employees at their homes, solicited workers at different places in the plant and on the company parking lot, and had secured a num- ber of signed union cards. This, of course, does not shield him from being discharged for cause. However, dismissing an outstanding proponent of a union often tends to dis- courage other employees from becoming interested in a union. N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5, 1965). b. Respondent had knowledge of Cooke's union activi- ties, as General Manager Rubin testified that, several days after his February 23 speech, two employees had come to him with unsigned union cards that had been given to them by Cooke when he tried to secure their signatures. Rubin admitted that the reason for his calling Cooke to his office thereafter was "By way of letting Mr. Cooke know that I was aware of his activities." Not only did Rubin let Cooke know that he knew of Cooke's activities on behalf of the Union, but, as he admitted, he let Cooke know that he was disappointed in his working on behalf of the Union. c. Respondent displayed strong antiunion animus. This in itself is inadequate to justify a finding that Respondent violated the Act because Section 8(c) of the Act guarantees to an employer freedom to be unalterably opposed to unions and to express such a sentiment to his employees. N.L.R.B. v. Threads, Inc., 308 F.2d I (C.A. 4, 1962). Fur- ther, engaging in union activity is not a guarantee against being discharged for cause. Nevertheless, an employer's dislike for unions communicated to his employees is a fac- tor which may be evaluated, along with other pertinent evidence, in arriving at the actual cause of the employee's discharge. Maphis Chapman Corporation v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4, 1966). d. Cooke was discharged during the height of the Union's campaign just several weeks after the filing of the petition by the Union for an election. While I recognize that this, without more, does not prove that no cause ex- isted for his discharge, nevertheless I find that this may be considered in determining the true motive for the termina- tion of Cooke. It has long been recognized that the timing of a discharge is persuasive evidence as to an employer's motivation. N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829. e. Respondent's stated reason for Cooke's discharge does not stand scrutiny. When Potter was asked for the first time what was the reason for Cooke's termination, he simply and clearly stated that it was because of "The Com- pany's three day rule with regard to the reporting of ab- sence." However, subsequent questioning revealed that the Company did not have a 3-day rule at all; that Potter per- sonally had a 3-day policy which, as Potter admitted, had never been communicated to the employees. As far as the employees knew, their absences were to be handled in ac- cordance with the vague provisions of page 8 of the em- ployee booklet. A fair examination of the "Reporting for Absence" sec- tion of the booklet does not disclose strong and ominous words providing that an employee will be discharged if he or she does not contact the Company on the day following the first day absent. The language is mild and ambiguous reading that, if the Company does not hear from the em- ployee on the day following the absence, "You may be considered as having quit." (Emphasis supplied.) Respondent in its brief does not challenge the legality of Cooke's absence from work for the period of March 9 through March 14 because of the written report from Dr. Monteith that Cooke gave to Wade on March 14. Yet, Cooke's conduct during this period of time did not con- form to a 3-day or I-day policy, as he simply did not call the plant or notify it in any other way on March 9, 10, I 1, or 12. It is noteworthy that, when Wade accepted Dr. Monteith's report on March 14, Wade did not warn Cooke that he was in violation of any Company rule, nor did he inform Cooke that in the future he should conduct himself in any different manner. Wade acted in a realistic and hu- mane manner when Cooke advised him that he was going to have to have all of his teeth pulled out by accepting the dentist's report and saying, "Okay." This was a ratification and approval of Cooke's procedure by his supervisor. Cooke was following the same procedure during this pe- riod of time as he had followed in the previous week. He had apprised his supervisor of his teeth problem, this time buttressed by Dr. Monteith's report of pain and prescrip- tions, and he was actually going to dentists to get relief. While Cooke's activities in going to three different dentists in such a short period of time is undoubtedly unusual, the numerous prescriptions for pain relief are proof that the man was in great pain. It is also understandable, as he was shopping on a janitor's pay, that he shopped for the cheap- est price he could get in the area to have his teeth pulled, When Cooke called Potter on the morning of March 21 about his job, Potter did not say flatly that he had been terminated. Potter told Cooke to bring the paper in that Cooke said he had to prove where he had been, and that he would review it and "the situation." That afternoon Cooke did bring in a dental surgeon's report showing that he had received treatment from Doctor Rogers as recent as the previous Friday, March 18. 33 In other words, Cooke followed the same procedure for his absence of March 15 through March 21 as he had fol- lowed for his March 9 through March 14 absence, and the conduct that was not a violation of Company rules before was now held to be a violation meriting discharge. While it is true that the booklet reads that for any ab- sence exceeding three "a leave of absence should be re- quested," it does not couple with that statement any penal- ty to be imposed if the leave is not requested. The booklet does state that "Unexcused absence can be a cause for written warning and after such warning, a cause for dis- missal." No warning, written or otherwise, was issued to Cooke to show that the Company considered any of his absence from March 9 to March 21 as unexcused. Yet, it is 33 That Cooke was still in pain and needed dental care is illustrated by G.C. Exh. 16k, c, and a, records of prescriptions prescribed by Dr. Rogers for Cooke on March 26 and 31 and April 7. 922 TUNICA MANUFACTURING COMPANY abundantly clear that Respondent was a vigorous and con- stant user of written warnings when it deemed that warn- ings were called for as shown by its numerous warnings to sewing machine operators concerning their failure to com- ply with production standards. f. Finally, it is not essential in order to find Cooke's discharge to be discriminatory that it resulted solely from his union activity. It is sufficient to find such discrimina- tion, notwithstanding that a valid cause may have existed for his termination, if a substantial or motivating ground for his discharge was his union activity. N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1, 1953); N.L. R.B. v. Lexington Chair Company, 361 F.2d 283, 295 (C.A. 4, 1966). I find that a substantial or motivating reason result- ing in his dismissal was his union activity, and the said "union activity weighed more heavily in the decision to fire him than did dissatisfaction with his performance." Whitin Machine Works, supra at 885. K. Interference, Restraint, and Coercion The complaint alleges 25 specific incidents of violations of Section 8(a)(1). This section of the Act prohibits an em- ployer from interfering with, restraining, or coercing its employees in the excercise of their rights guaranteed in Section 7 of the Act. The test applied in determining whether a violation of Section 8(a)(l) of the Act occurred is "whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." Electrical Fittings Cor- poration, a Subsidair) of I-T-E Imperial Corporation, 216 NLRB 1076 (1975). The evidence relating to Rubin's speech concerning the violations alleged in a, b, c, d, and e of paragraph 7 of the complaint, and my conclusions thereto, have been set forth in sections B and C above. The evidence and conclusions as to paragraphs 16(a) and (b) of the complaint, the new no-solicitation rule, have been set forth in section C above. I now turn to my conclusions on the balance of the al- leged independent violations of Section 8(a)() based on my findings set forth hereinbefore, stipulations of the par- ties, and admissions. Respondent, in its amended answer, admitted various allegations of the complaint, and I set those admitted sections forth in the same order, using the same complaint paragraph designation, as they were plead- ed. I thereafter conclude with the balance of the indepen- dent allegations also in the order in which they were plead- ed. 7(h). Rubin's admitted creation of an impression of sur- veillance of the union activities of Respondent's employees on or about February 25 is an interference with the em- ployees' rights to engage in union activity and organization and is a violation of Section 8(a)(l) of the Act. 7(k). Rubin's admission of his telling Greene on or about March I that he was surprised that Greene had agreed to assist the Union and could not believe that he would do such a thing is buttressed by Greene's testimony that Rubin told him that he "was doing him wrong" by supporting the Union. Such a remark by the chief execu- tive officer of a corporation, with his power to fire and to grant raises, to a rank-and-file employee is coercive and a violation of the Act.. 9(a) and (b). Supervisor Joan Swan's admitted interro- gation of Joyce Bradshaw on or about February 23 con- cerning her union membership and sentiments and telling Bradshaw that Respondent's employees would lose their jobs if the Union succeeded in its organizing campaign is patently interference with the employees' Section 7 rights and is a violation. 10. Supervisor Beatrice O'Neal's admitted solicitation of an employee on or about February 24 to ask other employ- ees of Respondent to withdraw their designation of the Union as their exclusive bargaining representative and to ask other employees of Respondent to oppose the Union is raw interference with the employees' rights and is a viola- tion. 11 and 12. Supervisor Bertha Terry's admitted activity on or about February 24, in soliciting an employee to with- draw her designation of the Union as her bargaining repre- sentative as well as to oppose the Union. and Terry's ad- mitted interrogation of an employee concerning the employee's union membership, sentiments, and desires is interference with the employee's rights and a violation of the Act. 14(a) and (b). Supervisor Ron Alexander's admitted in- terrogation on or about March 10 of an employee concern- ing that employee's union membership and sentiment and his further interrogation of an employee concerning the union membership and sentiments of other employees of Respondent is interference with that employee's rights and a violation of the Act. 15. Supervisor Beatrice O'Neal's admitted solicitation of rank-and-file employees on or about February 24 during work time and in work areas to sign a petition which read that the signers thereof did not want a union at Respon- dent's plant and to "Forget any' cards that we have signed" is basic interference with the employees' rights and a viola- tion. 7(f), (g). (i). and (j). Since I have already credited Cooke's testimony as to the contents of his conversations with Rubin on or about February 25, the date set by Ru- bin, it follows that Rubin's interrogation of Cooke as to his use of union cards and Rubin's pressuring Cooke to ask other employees to request their signed authorization cards back from the Union is interference with Cooke's Section 7 rights and a violation of Section 8(a)(l). I also find Rubin's threat to Cooke that, if he did not stop the Union cam- paign, he would have Cooke and his wife thrown out of Tunica County and Rubin's request of Cooke that he turn over to Rubin six or eight union authorization cards is coercive and a violation of the Act. 8. The evidence presented by General Counsel as to the mailing by registered mail and receipt of the antiunion pe- titions by the Union at its Memphis address, based on Postmaster Webb's affidavit and stipulations with no deni- als by Rubin or Potter, allows the reasonable inference, which I draw, that Rubin placed the antiunion petitions in the envelope mailed by him and received by the Union. Such meddling in the employees' rights to organize is plain- ly a breach of Section 8(a)( ). 13. I do not find that Supervisor Wade's statement to Cooke in the warehouse was a violation of the Act, as 923 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wade was obviously giving Cooke a friendly off-the-record warning to be careful about his conduct especially if he imbibed in beer, or whiskey, even to the extent of one drop. Wade's remark was a confidential statement made to Cooke for his own good and future guidance so as to avoid any trouble with the local sheriff. I would dismiss this alle- gation of the complaint. 14(c). In reviewing the discharge of Rosetta Lumpkin Wheeler in section 1,(4) above, I do not credit Wheeler's testimony that, at the time of her discharge, Alexander told her that he was thinking of transferring her back to mend- ing, but he could not because of all the mess that had come up about the Union. Alexander, who no longer worked for Respondent at the time of the hearing, was an impressive, sincere witness, and I have credited his denial that he made any such statement. I would therefore dismiss this allega- tion of the complaint. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Tunica Manufacturing Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 19, Distributive Workers of America-DWA, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees that if they selected the Union to represent them the Company would close its plant, and they would lose their jobs; by expressing to its employees the futility of unionism; by soliciting its employ- ees to withdraw their designations of the Union as their representative; by announcing and adopting a new rule for the purpose of preventing its employees from discussing the Union; by coercively interrogating employees concern- ing their union membership, sentiments, and desires and the union membership, sentiment, and desires of other em- ployees; by soliciting employees to withdraw their designa- tions of the Union as their bargaining representative and to ask other employees to oppose the Union and by soliciting employees to sign an antiunion petition; by preparing an antiunion petition, soliciting signatures of its employees to such petition, and mailing the petition to the Union re- questing that the Union discard any cards such signatories had executed for the Union; by creating the impression of surveillance of the union activities of its employees; by threatening to throw an employee and his spouse out of the county; by demanding union authorization cards from an employee; by telling an employee that he was doing the vice president wrong by assisting the Union; and by adopt- ing and maintaining a new no-solicitation rule for discrimi- natory purposes, Respondent has interfered with, re- strained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act and has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By discriminatorily discharging Hugh Cooke on March 17, thereby discouraging membership in the Union, Respondent has engaged in unfair labor practices in viola- tion of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(l) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action to ef- fectuate the policies of the Act. Respondent's having discriminatorily discharged em- ployee Hugh Cooke, I find it necessary to order Respon- dent to offer him full reinstatement, with backpay from the date of his discharge to the date of a proper offer of rein- statement, computed on a quarterly basis plus interest at 7 percent per annum as prescribed in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 34 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 35 The Respondent, Tunica Manufacturing Company, Inc., Tunica, Mississippi, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting Local 19, Distributive Workers of America-DWA, or any other union. (b) Threatening employees that Respondent will close the plant if the Union is successful in its organizing cam- paign. (c) Threatening employees with loss of jobs if the Union is successful in its organizing campaign. (d) Expressing to employees the futility of unionism. (e) Soliciting its employees to withdraw their designa- tions of the Union as their bargaining representative, re- questing its employees to ask other such employees to op- pose the Union, and soliciting its employees to sign antiunion petitions. (f) Promulgating or maintaining a rule forbidding em- ployees to solicit for a union at times when they are not actually working or applying any rule against solicitation for a union in a discriminatory manner. (g) Coercively interrogating employees about their union activities and the union activities of their fellow em- ployees. (h) Creating the impression of surveillance of the em- ployees' union activity. (i) Threatening to have employees and their spouses put out of the county for not stopping the Union's organizing campaign. 3See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 35 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 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. 924 TUNICA MANUFACTURING COMPANY (j) Coercively demanding that employees turn over to Respondent any union authorization cards. (k) Assisting its employees in requesting withdrawal of their designation of the Union as their representative by mailing such employees' withdrawal request to the Union. (1) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Hugh Cooke immediate and full reinstatement to his former job or, if the job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or other rights and privileges previously enjoyed, and make him whole for his lost earnings in the manner set forth in "The Remedy." (b) Preserve and upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Tunica, Mississippi, copies of the attached notice marked "Appendix." 36 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 26, after being duly signed by Respondent's author- ized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT 15 ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not specifically found. 36 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTI(tE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Having found after a hearing that we violated the Federal law, the National Labor Relations Board has ordered us to post this notice. WE WILL NOT threaten our employees that if the Union is successful in its organizing campaign the plant will close, and they will lose their jobs. WE WILL NOT tell employees that unions are worth- less. WE WILL NOT ask our employees to withdraw their designation of the Union as their representative or re- quest them to ask other employees to oppose the Union. WE WI.L NOT ask employees to sign antiunion peti- tions. WE WILL NOT maintain or enforce a rule forbidding employees to solicit for a union at times when they are not actually working, nor will we apply any rule for- bidding solicitation for a union in a discriminatory manner. WE WILL NOT coercively interrogate our employees concerning their union activities and those of other employees. WE WILL NOT give employees the impression that union activities are under surveillance. WE WILL NOT threaten employees and their spouses that they will be put out of the county if they do not stop the Union's organizing campaign. WE WILL NOT request employees to turn over to us any union authorization cards. WE WILL NOT assist employees to request the with- drawal of their designation of the Union as their bar- gaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities, WE WILL offer full reinstatement to Hugh Cooke to his former job or, if that job no longer exists, to a substantially equivalent one, with backpay plus inter- est thereon. TUNI(A MANUFA(TTLRING COMPANY, INC 925