Rockingham Sleepwear, Inc.

472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rockingham Sleepwear, Inc. and International Ladies' Garment Workers Union, Upper South Department, AFL-CIO. Case 5-CA-4874 May 21, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND KENNEDY On March 5, 1971, Trial Examiner Herzel H. E. Plaine issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the Re- spondent filed exceptions to the Trial Examiner's Deci- sion with supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor. Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Rockingham Sleepwear, Inc., Harrisonburg, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. ' These findings and conclusions are based, in part, upon the Trial Ex- aminer's credibility findings, as to which the Respondent excepts It is the Board's established policy, however, not to overrule a Trial Examiner's resolutions with respect to credibility unless, as is not the case here, the preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) TRIAL EXAMINER'S DECISION HERZEL H. E. PLAINE, Trial Examiner. The complaint charged the Respondent with a violation of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) by discriminatorily discharging and refusing to reinstate em- ployee Myrtle Green because of her activity on behalf of the Charging Party (the Union) in an organizing campaign that preceded a representation election. The complaint rests on a charge filed by the Union August 17, 1970, and amended November 3, 1970. Respondent's answer was a general denial. At trial, Re- spondent claimed that the employee voluntarily quit and ad- mitted a refusal to reinstate her, but not for discriminatory reasons. The case was tried January 5-6, 1971, at Harrisonburg, Virginia. Counsel for the General Counsel and for the Re- spondent filed briefs Upon the entire record of the case, including my observa- tion of the witnesses, and after due consideration of the briefs, I make the following: FINDINGS OF FACT I JURISDICTION Respondent is a Virginia corporation engaged in the manu- facture of pajamas, dresses, and women's sportswear. Its plant and principal place of business is in Elkton, Virginia. In the 12 months preceding the issuance of the complaint, a representative period, Respondent purchased and received goods valued in excess of $50,000 from points outside Vir- ginia. Respondent is, as it concedes, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is, as the parties admit, a labor organization within the meaning of the Act II THE UNFAIR LABOR PRACTICES A. Discharge of Employee Green 1. Knowledge of her union activities; previously found 8(a)(1) Employee Green had been employed by Respondent for more than 6 years and was a competent employee skilled in the use of the various machines in the plant. She testified that in the campaign for the Union she was a member of the Union organizing committee and one of the principal organizers of the women employees, who comprised 80% of Respondent's 200 employees. Beginning in early 1969 she distributed union representation cards to the ladies in the shop on lunch hour and breaktime. Many of the women took their lunches at their machines, so that a considerable number of the cards were distributed on the plant work floor in nonworking time.' Employee Green also distributed some cards at employees' homes, she said. In addition, she passed information to the women employees about union meetings, attended all union meetings, and distributed union handbills to the employees (the last occasion in March 1970). On the day of the represen- tation election, June 4, 1970, employee Green had union badges and ballpoint pens with the union name on them at her machine at the plant, and talked up voting for the Union with about 20 or 25 of the women.2 ' As found in a previous case involving the same parties, 188 NLRB No 110 (TXD) (hereinafter referred to as Rockingham I), this form of card distribution was the subject of an admitted warning by Respondent to desist or be discharged given to one of employee Green's coworkers, Muriel Hine- gardner Employee Hinegardner was later discharged before the Board elec- tion, held June 4, 1970, for union activity The finding by Trial Examiner Nachman of a discriminatory discharge was on appeal to the Board when the present case, Rockingham II, was tried The Board's affirmance, supra, in Rockingham I has rendered moot General Counsel's motion to delay issuance of the present decision until the Board acted in Rockingham I ' It was stipulated in Rockingham I that Respondent opposed unioniza- tion of its employees, and the Board affirmance of the contested findings respecting employee Hinegardner adds Section 8(a)(1) and (3) unfair labor practice findings 190 NLRB No. 101 ROCKINGHAM SLEEPWEAR 473 Most significantly , on the Monday following the election, June 8, 1970, Respondent's Plant Manager Charles Harris let employee Green know that he was aware of her union activi- ties. This came out in testimony in Rockingham I (see fn. 1, supra), transcript pp. 59-62; 188 NLRB No . 110 (TXD). In that case, involving principally the discharge of employee Muriel Hinegardner, employee Green testified, on August 4, 1970, to a meeting in the office on June 8 with Plant Manager Harris in which he accused her of having feigned illness on the previous workday, June 5, the day following the election, when she worked only a half-day. She remonstrated that she had been sick and had called into the office to say so, and that he could check with the girls with whom she worked. Plant Manager Harris told employee Green that he did not want to hear what the girls had to say, that he knew them like he knew the back of his hand , that he knew who was for the Union and knew that she (Green ) was for the Union, and to go home and come back only when she thought she could work every day. Though Plant Manager Harris testified in Rockingham I, he then offered no contradiction of this testimony of em- ployee Green . Upon her "uncontradicted and credited tes- timony," Trial Examiner Nachman found that , "Respondent violated Section 8(a)(1) of the Act ... because he [Harris] thus created the impression that Respondent had engaged in surveillance of Green 's Union activities." Rockingham I, (TXD). As stated by Respondent's counsel in the present case (Rockingham II, transcript pp. 6-7), Respondent took no exception to Trial Examiner Nachman 's findings on em- ployee Green's testimony and those findings were final and not before the Board for review . Knowledge by Respondent of employee Green's union sympathy and activities, and anti- union animus on the part of Respondent , clearly existed at the time she was separated from her fob.' Respondent 's Explanations In his testimony in this case, Rockingham II, five months after testifying and failing to challenge or contradict em- ployee Green in Rockingham I, Plant Manager Harris had a number of explanations on how it happened that employee Green no longer worked for Respondent after June 5, 1970. Plant Manager Harris admitted that he was aware that employee Green had called in sick the afternoon of June 5, 1970, a Friday, after she worked the morning and punched out at noon. However, Harris' wife had seen employee Green at the grocery in downtown Elkton, Virginia , a short distance away from the plant that afternoon, and told Harris; accord- ingly, he said, he caused Green 's timecard to be removed from the rack over the weekend. On Monday morning, June 8, employee Green came into Plant Manager Harris' office asking the whereabouts of her timecard . Both agreed that he said he wanted to talk about her not having come back for work the previous Friday after- noon . As related above (under the previous subheading), em- ployee Green repeated substantially her August 1970 tes- ' In the present case , Rockingham II, employee Green gave substantially the same testimony concerning the June 8 , 1970, meeting with Plant Manager Harris This time , 5 months later, January 5-6, 1971, Harris claimed no knowledge of employee Green 's union activities and denied saying to her that he knew which girls were for the Union and that she was for the Union , or indeed that he even sent her home on June 8 1 find these belated denials by Plant Manager Harris incredible , not only because of his earlier acquiescence in what was attributed to him before , but also in view of the related pattern of shifting and contradictory explanations offered by him for discharging and refusing to reinstate employee Green , discussed below timony, that Plant Manager Harris sent her home telling her not to come back until she felt she could work every day. Plant Manager Harris, who had not contradicted employee Green's testimony in August 1970, now testified in January 1971 that he did not send her home, that she walked out "mad" and quit . He had told her, he said , that she had to stop the practice of leaving early without telling anyone, and had to improve her attendance . When she asked , he said,whether he wanted her to quit, he replied he did not want her to quit, he needed her, he had plenty of work for her and only wanted her to work regularly . According to Harris her response was to say she didn't want to work there anyway, and she walked out. She quit on June 8, he testified. However, on cross-examination Plant Manager Harris ad- mitted that not too long after June 8 (the precise time was not fixed), when the Virginia Unemployment Compensation Agency inquired of him as to the reason for employee Green leaving her job , he told the agency, "she was laid off from work because of irregular attendance at work."' Actually, as demonstrated in further cross-examination, including an examination of timecards and attendance records, the claim by Plant Manager Harris that employee Green was guilty of irregular attendance, or leaving early without notice, or failing to notify of absences , was shown to be not true. Nevertheless, the more or less contemporaneous notification by Harris to the state unemployment compensa- tion agency corroborates what employee Green said she was told by Harris on June 8. On the alleged problem of employee Green 's irregular at- tendance, or leaving early without notice, or failing to notify of absences , Plant Manager Harris admitted he had never spoken to employee Green on the subject before June 8, 1970, and didn't know if anyone else had ; indeed he could only recall one occasion (time not specified) when a floor lady (unidentified) complained to him that employee Green had left work early. Moreover , he testified that he had personally given permission to employee Green to leave early on two occasions in 1970, on one occasion to care for a sick child in her household. For many years prior to June 8, 1970, and until a short time after her work for Respondent ceased that day, employee Green suffered from gallstones.' Notwithstanding the exist- ence of the condition and the difficulty it caused her on June As a result, her request for unemployment compensation was denied ' However, her doctor in Elkton had mistakenly been treating her for an ulcer This is understandable , absent the aid of an x -ray to identify gall- stones, since the symptoms of both ailments can resemble each other and the pains suffered in an "attack" occur in the same region of the body The pains from gallstones range from very severe , when the cystic duct is blocked, to milder discomfort as the condition varies or is relieved Cecil and Loeb, Textbook of Medicine (10th ed 1962, W B Saunders Co) pp 892- 900 In Mrs Green's case the mistake in diagnosis was discovered in late 1970 and the gallbladder removed by surgery Prior thereto , while she worked , she apparently had not been subject to severe attacks but on occasion suffered the discomfort , such as she described occurred on June 5 , 1970, when sitting and working at a machine gradually became intolerable but moving about or lying down was endurable 'On the afternoon of June 5 after punching out at the plant at noon, employee Green drove with her husband to Elkton to see the doctor, from whose house she called the plant office to say she would not come back to work that day She came home and rested and then , with the car , delivered her husband to a gas station , where he caught his ride to work She also stopped in the grocery nearby the gas station to get milk for her medication and pudding for food Respondent would fault her credibility because she forgot the grocery stop in accounting for her movements that afternoon , until reminded that Mrs Harris had seen her at the grocery I regard this lapse of memory inconse- quential , since employee Green made no effort to conceal the fact that she did move about outside her home for part of the afternoon, though suffering the effects of the gallbladder attack I 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5, 1970, (see footnote 5, supra) her record of attendance at work was good, as the timecards and attendance records indicate. Using the timecards for 1970, introduced by Re- spondent, exhibits R-3(a) through 3(v), it appears that em- ployee Green worked every week from January to her termi- nation in June. The days on which there were no time punch marks (in any of the first five days of a week) apparently represented layoff time, because Plant Manager Harris said the plant experienced a great deal of layoff time from January through June and could not account for the blanks otherwise. In the days worked, the cards reflect only three days, in addition to June 5, where there was only a half day worked, and two days showing a punchout between 2 and 3 p.m.; but Hares was unable to say whether these were layoffs for lack of work or the excused absences to which he referred, and he was unable to say that they were inexcused. The attendance records which Respondent started to keep, beginning in April 1970, and providing a record respecting absences from April through December 1970, were more informative. Actually these records or summaries for each employee were designed to be records of absences rather than of attendance. In employee Green' s case the attendance record, exhibit GC-3, is clean, no absences or unaccounted- for time-off. In contrast the attendance records of thirty other women employees, exhibits GC-2 and GC-4 through 32, vari- ously show absences for whole days, partial days, weeks, and even months, some for excused sickness, some for sickness not excused, some for absences not explained but excused, and many with completely unexplained and unexcused ab- sences. Looking at some of the glaring examples, employee Marie Thomas, exhibit GC-13, shows 13 days of unexplained, unexcused absences in a 7-month period; employee Marie Shiffiet, exhibit GC-15 shows 8 days of unexplained, unex- cused absences in a like period; employee Barbara Mowbray, exhibit GC-17, shows 9 unexplained, unexcused absences in a 6-month period; and employee Kathleen Gooden, exhibit GC-29, shows 7 days unexplained, unexcused absences in a 7-month period. These persons are still employed by Re- spondent, as are all but 4 of the 30 (2 left voluntarily in November or December 1970 because of illness, and 2 were laid off in the same period for lack of work for them). Indeed 3 of the 30 employees, Ruth Dean (exhibit GC- 11), Rhoda Painter (exhibit GC- 16), and Kathleen Gooden (exhibit GC- 29), are still carried as employees though not working and not laid off. Not only did employee Green have a comparatively exem- plary attendance record, but the state of affairs reflected by the attendance records of the 30 other employees indicates that Plant Manager Harris was nowise as concerned with occasional employee absences, or the reasons, as he made out he was with employee Green on June 8, 1970.6 Harris obvi- ously took no action against the many employees who were frequently absent without ever giving an explanation either before or after the absences, and he admitted that he took no action against other employees who had been absent and seen in public at the time and later explained the absences. Harris did indicate that it was a practice, that he accepted, for em- ployees to telephone in notice of and excuses for absences, including the cases where employees punch out for lunch and do not return for work in the afternoon but telephone in (as employee Green did on June 5) or explain on the following day. ' General Counsel suggests that Respondent's layoff policy confirms Har- ris' lack of interest in employee attendance, since the absences save Re- spondent the trouble of sending employees home when work drops off Employee Green testified in Rockingham I (August 4, 1970) that after being sent home by Plant Manager Harris on June 8 she came back the following Friday, June 12, and told Harris she had a note from the doctor and was ready to go back to work. Harris said he didn't have anything for her, she testified. In Rockingham I, Plant Manager Harris did not contradict or deny any of employee Green's testimony. In Rockingham II (January 5-6, 1971), employee Green repeated substan- tially what she had said about her June 12 visit to the plant, adding the detail that she talked first to one of the girls in the office (she thought her name was Sandra Roach), that Miss Roach went in and told Harris, and that Harris came to his office door, addressing Miss Roach rather than Mrs. Green, and said tell her he had nothing for her.' Plant Manager Harris testified in Rockingham II that he did not recollect employee Green coming in or asking for her job on June 12; but he did recall her telephoning him in August, a few days after the August 4th trial of Rockingham I (where she testified adversely to Respondent), and her ask- ing if she could have her job back. In fact he recalled, as she had testified, that he did not take the first but only the second of two calls she made to him that day. (She thought it was August 6, he thought it was August 11.) In answer to Green's request, Harris replied that he didn't have any work for her at this time. His reply to employee Green was not true, Plant Manager Harris admitted. He had work available in August and later, that she could have performed. His reason, he said, for not taking her back or calling her back was - he didn't like her attitude in his office back on June 8th and he didn't like her attitude again on the phone on August 11th. He could tell, he said, by her tone that she was not seeking employment. Plant Manager Harris was asked by the Trial Examiner, if he could find work for Mrs. Green now (January 1971) would he reinstate her. He said yes, and that he had no reason not to offer it other than that he had not heard from her since her telephone calls on August 11, 1970. On further examination by the General Counsel, Plant Manager Harris changed his statement concerning the present situation. He stated that there presently was work available for employee Green but he would take her back only if she exhibited the "proper attitude," an attitude that he considered, he said, conducive to good management- employee relationships. By proper attitude, said Harris, he meant starting with a smile, keeping their conversation at that level, and giving him the impression she wanted to work with a good attitude. ' Employee Green created some confusion in Rockingham 11 by stating that she had the doctor's note on June 8 rather than on June 12 as she had said in Rockingham I Plant Manager Harris had never asked for or seen the note and at the request of Respondent's counsel, counsel for the General Counsel produced the note, exhibit R-2 From its text, that Myrtle Green was ill from June 5 to June 12 at which time she was able to return to work, it appeared more likely that she had the note at the latter date From the testimony and discrepancy in the matter of the doctor's note, Respondent's counsel would have me conclude that all of employee Green's testimony was a fabrication I think the indications are the other way The question of the time when employee Green obtained and had the doctor's note is entirely collateral to the main issue of whether Plant Manager Harris fired her discriminatorily or she voluntarily quit her job Her testimony on the main issue is cor- roborated by the testimony and conduct of Plant Manager Harris Indeed the case against Respondent is largely established by its own records and testimony, the summary of which is almost but not quite complete at this point in the recital ROCKINGHAM SLEEPWEAR 475 Plant Manager Harris never alluded to this matter of atti- tude in the two conversations of record with employee Green, face-to-face in his office on June 8, and on the telephone August 11.1 B. Section 8(a)(3) and (1) Findings None of Respondent's shifting explanations for having per- manently separated employee Green from her job stand up under scrutiny. It became clear that what may have appeared to have been a temporary layoff, when employee Green was sent home on June 8, 1970, was a discharge, as demonstrated by the subse- quent refusals by Plant Manager Harris to take her back for the admittedly false reason that there was no work for her. Respondent subsequently contended that employee Green quit her job on June 8, that she was not laid off or fired. This was palpably false, for two reasons. First, shortly after June 8, Respondent told the Virginia Unemployment Compensa- tion Agency that it had laid off employee Green for alleged poor attendance at work. Second, as late as August 4, when Green testified in Rockingham Ito the layoff for her alleged poor attendance at work and what was told her in that con- nection by Plant Manager Harris, Respondent acquiesced in At the opening of the trial, Respondent moved to dismiss the complaint on the ground that it alleges the Section 8(a)(3) discharge of employee Green on June 8, 1970, that employee Green provided evidence in Rocking- ham Ion August 4, 1970, concerning the events affecting her on June 8, which evidence resulted in the Section 8(a)(1) finding in Rockingham I of surveillance of her union activities , hence General Counsel should have litigated the Section 8(a)(3) discharge on June 8 under the complaint in Rockingham I Having failed to do so, argues Respondent, General Counsel is estopped from litigating piecemeal , and now having a second chance to establish the Section 8(a)(3) discharge of employee Green with the Rocking- ham II complaint General Counsel replied that neither the underlying charge in Rocking- ham I nor the complaint alleged a Section 8(a)(3) discharge of employee Green, hence there was no basis for litigating the discharge in that case The Section 8(a)(1) surveillance alleged was uncovered by additional investiga- tion just before trial of Rockingham l and came into the case by amendment of the complaint at trial The Section 8 (a)(3) charge on behalf of employee Green was not filed with the Board until August 17, 1970, 2 weeks after the trial of Rockingham I. That charge included Section 8(a)(5) allegations and required extensive investigation , said General Counsel. As a result of the investigation the Section 8(a)(5) charge was dismissed by the Regional Director, but the Section 8(a)(3) charge became the basis for the complaint of November 10, 1970, in Rockingham II I reserved decision on the motion to dismiss , and dispose of it now The short answer to the motion is that clear evidence of a discharge of employee Green was not in hand on August 4, 1970, when Rockingham I was tried At that point, Respondent's conduct in sending employee Green home on June 8 and its later notice to the state unemployment compensation agency were consistent with a temporary layoff (albeit discriminatory) as well as with a discharge Employee Green had reason to react to the separation as a temporary layoff and did so react. The finality of the turndown of her second application for reinstatement in August, following the trial of Rock- ingham I in which she testified adversely to Respondent , was undoubtedly convincing to her and to the Charging Party (where it may not have been before) that the temporary layoff had been a permanent discharge . Hence, the filing of the charge on that score on August 17, 1970, eventuating in Rockingham II. Since a charge is a prerequisite of a complaint (though admittedly not as to every item of the complaint), Texas Industries, Inc. v N.L.R B, 336 F 2d 128, 132 (C A 5, 1964), Respondent is in no position to complain that it was prejudiced because the General Counsel followed Board procedure and refrained from prosecuting it for an unfair labor practice for which the charge was not in being . Moreover, as held in Wallace Corp. v. N.LR.B., 323 U S 248, 253 (1944), the Board has the power to fashion its procedure to protect employees from unfair labor practices , and the concept of estop- pel may not be used to render the Board powerless to prevent an obvious frustration of the Act's purposes Respondent's motion to dismiss is denied her testimony, though contesting other parts of the case not related to employee Green. In the trial of this case, Rockingham II, Respondent's initial claim, that employee Green had a poor attendance record and frequently left her work without notice or excuse, was demonstrated to be false. Not only was her attendance record good, but it was admitted that on at least two of the few occasions of her leaving work early, prior to the working day before her discharge, she had advance permission of Plant Manager Harris. Moreover it was admitted by Re- spondent that the questioning of employee Green's previous half-day absence on the day of her discharge was the first time that any question about her attendance had been raised with her. In addition it was admitted that she had notified the plant office of her inability to return to work for that half-day she was absent, and that such notification was in keeping with the accepted practice of the plant. In the matter of employee absences and excuses for ab- sences, both before and after employee Green's discharge, it was also demonstrated from the records of several dozen fellow employees, who are still employed, that Respondent has taken no disciplinary action such as was taken against employee Green or action of any kind against the other em- ployees, notwithstanding their many absences that have not been explained by the individual employees let alone excused by the employer. Respondent retreated, lastly, to the explanation that it was employee Green's "attitude" toward Plant Manager Harris in her exit meeting with him on June 8, and her later telephone conversation asking him for her job, after she testified ad- versely to him in August in Rockingham I, that accounted for her no longer being employed by Respondent. The "attitude" was the lack of a smile and lack of proper conversational deference to Plant Manager Harris, in these two conversa- tions only, that indicated to him that she really did not want to be employed. Of course, employee Green wasn't told this. She was simply sent home for her supposed bad attendance, and then told twice thereafter that there was no work for her when there actually was work. In the light of the bankrupt explanations that preceded this one, it has the preposterous sound of the man who has run out of explanations. In my view, the inference to be drawn from these sham and shifting explanations is that Respondent discharged and refused to reinstate employee Green in reprisal for her es- pousing the Union among her fellow employees and in order to discourage their support of the Union. Employee Green was a leading union advocate. Respond- ent was aware of her union activities, and was not only op- posed to the Union, but had already engaged in unfair labor practices that violated Section 8(a)(1) and (3) of the Act, by creating the impression that it had her union activities under surveillance, and by threatening discharge and discharging another employee for engaging in union activities (as found in Rockingham I, 188 NLRB No. 110). See Great Atlantic and Pacific Tea Co. v. N.L.R.B., 354 F.2d 707, 709 (C.A. 5, 1966), holding that the employer' s assigned ground for dis- charge need not be accepted where there is reasonable cause for believing the ground is untrue and that the employee's union activity was the real reason; and N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5, 1962), holding that the employer's shifting explanations for the discharge strengthen the conclusion that the true reason was the employee's union activity. Respondent's conduct in discharging and refusing to rein- state employee Green violated Section 8(a)(3) and (1) of the Act. N.L.R.B. v Southern Desk Co., 246 F.2d 53, 53-54 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (C A. 4, 1957), N.L.R.B v. Lester Bros, Inc., 337 F 2d 706, 708 (C A. 4, 1964). CONCLUSIONS OF LAW 1. By discriminatorily discharging employee Myrtle Green and refusing to reinstate her, in retaliation for her engaging in union activity and in order to discourage its employees' support for and membership in the Union, Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 2. The described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It will be recommended that the Respondent (1) cease and desist from its unfair labor practices; (2) offer to reinstate employee Myrtle Green with backpay from the time of discharge, the backpay to be computed on a quarterly basis as set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven Up Bot- tling Co., 344 (1953), with interest at six percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in Philip Carey Mfg. Co. v. N.L.R.B., 331 F.2d 720 (C A. 6, 1964), cert. denied 379 U.S. 888, and (3) post the notices provided for herein. Because the Respondent by its conduct violated fundamen- tal employee rights guaranteed by Section 7 of the Act, and because there appears from the manner of the commission of this conduct an attitude of opposition to the purposes of the Act and a proclivity to commit other unfair labor practices, it will be recommended that the Respondent cease and desist from in any manner infringing upon the rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co. 120 F.2d 532, 536 (C.A. 4, 1941); N.L.R.B. v. Bama Company, 353 F 2d 323-324 (C.A. 5, 1965); P.R. Mallory and Co. v. N.L.R.B., 400 F.2d 956, 959-960 (C.A. 7, 1968), cert. denied 394 U.S. 918. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended:' ORDER Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees for engaging in union activities or for recruiting other employees to become members of the Union or to engage in union activities. (b) Discouraging membership of its employees in a union or other labor organization by discharging employees or oth- erwise discriminating against them as to their hire, tenure, and conditions of employment, or in any other manner inter- fering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2 Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to employee Myrtle Green immediate and full reinstatement to her former job or, if the job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges, and make her whole, ' In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes in the manner set forth in the section of this decision entitled "The Remedy," for any loss of earnings she may have suff- ered as a result of her discharge on June 8, 1970 Notify her, if she is serving in the Armed Forces of the United States, of her right to full reinstatement upon application after dis- charge from the Armed Forces. (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to ascertain the backpay due under the terms of this Recom- mended Order. (c) Post in its establishment at Elkton, Virginia, copies of the attached notice marked "Appendix."" Immediately upon receipt of copies of said notice, on forms to be provided by the Regional Director of Region 5 (Baltimore, Maryland), the Respondent shall cause the copies to be signed by one of its authorized representatives and posted, the posted copies to be maintained for a period of 60 consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall taken by the Respondent to insure that said notices are not ered, defaced, or covered by any other material. (d) Notify the Regional Director of Region 5, in writing, within 20 days from the date of the receipt of this decision, what steps the Respondent has taken to comply therewith." 10 In the event that the Board's Order is enforced by a judgement of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that the recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director of Region 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply therewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government THE NATIONAL LABOR RELATIONS BOARD HAV- ING FOUND, AFTER A TRIAL, THAT WE VIOLATED THE NATIONAL LABOR RELATIONS ACT: WE WILL NOT fire you because you engage in union activities or because you recruit other employees to become members of the Union or to engage in union activities. WE WILL NOT, in any other manner, discriminate against you to discourage your membership in a labor union or interfere with your right to join , assist, or be represented by a labor union, or interfere with any of your other rights of self-organization and mutual aid guaranteed by Section 7 of the National Labor Relations Act. Since the Board found that we fired Myrtle Green on June 8, 1970, because of her union activity, WE WILL offer her her old job back and give her back- pay If she is in the Armed Forces of the United States, we will notify her of her right to reinstatement upon application after discharge from the Armed Forces. Each of you is free to become or remain or refrain from becoming or remaining a member of International Ladies' Garment Workers Union, Upper South Department, AFL- CIO, or any other labor union. ROCKINGHAM SLEEPWEAR 477 ROCKINGHAM This notice must remain posted for 60 consecutive days SLEEPWEAR, INC. from the date of posting and must not be altered, defaced, or (Employer) covered by any other material. Any questions concerning this notice or compliance with Dated By its provisions, may be directed to the Board's Office, Federal (Representative) (Title) Building Room 1019, Charles Center Baltimore, Maryland This is an official notice and must not be defaced by any- 21201, Telephone 301-962-2822. one.