Quality Manufacturing Co.

QUALITY MANUFACTURING CO. 197 Quality Manufacturing Company and Upper South Department, International Ladies' Garment Work- ers' Union, AFL-CIO. Case 9-CA-5576 January 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING JENKINS, AND KENNEDY On October 23, 1970, Trial Examiner James V. Con- stantine 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. The Trial Examiner also found that Respondent did not engage in certain unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the Re- spondent filed exceptions to the Trial Examiner's Deci- sion. 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 Respondent's exceptions, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations' of the Trial Examiner. The Trial Examiner finds that Respondent violated Section 8(a)(3) and (1) by suspending employee Delila Mulford and Martha Cochran and by discharging Mul- ford, Cochran, and employee Catherine King. We agree. Respondent is engaged in the manufacture of wo- men's clothing. Its owners and principal officers are Lawrence Gerlach, Sr., president; Mary Kathryn Ger- lach, his wife and production manager; and Lawrence Gerlach, Jr., their son and general manager. The events which culminated in the suspensions and discharges began on the morning of Friday, October 10, 1969. On that morning all three Gerlachs met with Mulford, the union chairlady, and with King and two other employees during which meeting the union repre- sentatives complained that the employees, including King, could not make a satisfactory wage under the piece rate then in effect. The meeting produced only an acrimonious exchange and ended when Mulford was ordered to return to her work station. Later that same day, while on the production floor, Mrs. Gerlach observed that King had shut down her machine and was causing some minor disturbance. Ac- cording to Mrs. Gerlach, two other employees had also stopped their machines and were watching King. Mrs. Gerlach directed King to resume production. King re- sponded with a flippant remark challenging Mrs. Ger- lach's authority. Mrs. Gerlach then directed King to go to Mr. Gerlach's office. King complied, but en route she asked Mulford, the union chairlady, to accompany her. Mulford left her own work station and went with King to the anteroom of Gerlach's office where Mrs. Gerlach told her husband what had transpired. Gerlach told Mulford to return to her work station and Mulford refused. Gerlach then told King to come into his office for a discussion, and King replied that she would not go without Mulford. At that, Gerlach told King and Mulford to return to their work stations, and they did so. On Sunday, October 12, Mrs. Gerlach telephoned Mulford and informed her that she was suspended for 2 days. No reason for the suspension was given, but Mulford understood that it was for her activities in seeking to represent King on the previous Friday. On Monday, October 13, King reported to work. She found that her timecard was not in its usual place in the rack, indicating pursuant to plant practice that she was wanted in Gerlach's office. Before going to his office, however, King asked assistant chairlady Cochran to accompany, and represent, her. Cochran accompanied King without first punching in on her timecard. At the office, they talked first to Mrs. Gerlach, who told Cochran that her card was in the rack and that she should go to work if she wanted her job. Mrs. Gerlach added that they (the Gerlachs) wanted to talk only to King. When asked why, she replied that they wanted to take up where they left off Friday. Cochran then said, "Well, Mrs. Gerlach, I'm sorry, but if that's what you want to talk to her about, that is Union business and she has asked me to represent her." Cochran and King then saw Gerlach and asked if he was going to give King her timecard. He responded that he would not do so until King came into the office and talked to him in private. When Cochran declared that King wanted union representation, Gerlach re- sponded that he would talk to them one at a time. Cochran and King declined and then sat and waited in or near the office the rest of the day. Mrs. Gerlach, meanwhile, "pulled" Cochran's timecard.2 On Tuesday morning, October 14, Cochran and King again went to the office and asked Gerlach if he was going to give King her timecard. Gerlach again replied that he would not until King came into the ' In the absence of exceptions, we adopt proforma the Trial Examiner's recommendation that the 8(a)(5) allegations and certain of the 8(a)(1) alle- ' As Cochran subsequently learned, this action was taken to effect a gations be dismissed decision to suspend Cochran for 2 days 195 NLRB No. 42 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office and talked to him in private. When Cochran asked about her own card, Gerlach replied that she was suspended 2 days for being away from her machine the prior day. King and Cochran then left the plant. The next day, October 15, Mulford's 2-day suspen- sion expired and she returned to the plant along with Cochran and King. Again, they went to the office and spoke with Gerlach. He informed Cochran that she was still suspended for another day and reiterated that he would not give King her timecard until she came into the office and talked to him in private. Cochran and King left. Mulford was given her timecard and went to work. On Thursday, October 16, Cochran, Mulford, and King were discharged. That morning, too, the three went to the office and were met by Mr. and Mrs. Ger- lach. Cochran was given her timecard and went to work. Mrs. Gerlach then told King that Gerlach wanted to see King in the office. King asked, "With Delila (Mulford)?" Gerlach said, "No, not with Delila." He added that if King "went out the door," that is to say, again declined the interview, she would be discharged. King walked out. Mulford then asked Gerlach if she could go to work. "No," he replied, "You've abandoned your job. You're finished." He told Mulford to leave, and she did. During the noon hour that same day, Cochran went to the office of Gerlach, Jr., and presented to him writ- ten grievances on behalf of herself, Mulford, and King. Gerlach, Jr., refused to take the grievances, saying that he did not have time for them as he was leaving town. Cochran insisted and laid the grievances on his desk, whereupon he picked them up and threw them into the trash. When Cochran left Gerlach, Jr.'s office, he went up to the work area and pulled Cochran's timecard. Later in the day, the senior Gerlach confirmed the decision to discharge Cochran. I. THE DISCHARGE OF KING We turn first to the question whether Respondent violated Section 8(a)(1) and (3) of the Act by discharg- ing King because she insisted on union representation at the meeting which Respondent demanded. We affirm the Trial Examiner's finding that the Act was violated. The issue presented by King's, discharge was not decided by either the Board or the court in Texaco, Inc., 168 NLRB 361, enforcement denied 408 F.2d 142 (C.A. 5, 1969). The issue posed in Texaco was whether the employer violated its obligation to bargain with an employee representative by denying an employee's re- quest that a union representative be present during an interview conducted for the purpose of perfecting a case against the employee. The Board held that such a denial violated Section 8(a)(5) of the Act, and the court disagreed holding that the interview was merely inves- tigative in nature. The Board has since refused to find 8(a)(5) violations under circumstances involving purely investigatory interviews. Chevron Oil Company, 168 NLRB 574; Jacobe-Pearson Ford, Inc., 172 NLRB No. 84; Texaco, Inc., Los Angeles Sales Terminal, 179 NLRB 976. But none of those cases presented a situation where an employee or his representative had been disciplined or discharged for requesting, or insisting on, union rep- resentation in the course of an interview. In fact, the Section 7 right of individual employees to act in concert "for mutual aid and protection" was not directly con- sidered in those cases. Rather, those cases involved a determination of whether the right of the union to bargain collectively was such that an employer could not legally deny its request to participate in the inter- view. This case, therefore, appears to present an issue which we have not heretofore directly passed on, and the Texaco line of cases relied on by the Examiner does not provide direct guidance for us here. After reflection, we have concluded that it is a seri- ous violation of an employee's individual right to be represented by his union if he can only request or insist on such representation under penalty of disciplinary action. And while the employer's denial of such a re- quest may not derogate the bargaining rights of the union, in violation of Section 8(a)(5), in the case of a purely investigatory interview, this is not to say either: (a) that the employer may discipline the employee for demanding representation; or (b) that the employer may insist, by threatening to discipline the employee's representative, that the interview be held without his presence. As to the first question, the violation seems to us clear and unequivocal. As to the second, while the question is more difficult, upon reflection we conclude the answer is the same. In Texaco, supra, when the employee asked to be represented in the interview, the employer advised that it would not insist on the inter- view unless the employee was willing to enter the inter- view unaccompanied by his representative. This seems to us to be the only course consistent with all of the provisions of our Act. It permits the employer to reject a collective course in situations such as investigative interviews where a collective course is not required but protects the employee's right to protection by his chosen agents. Participation in the interview is then voluntary, and, if the employee has reasonable ground to fear that the interview will adversely affect his con- tinued employment,' or even his working conditions, he ' "Reasonable ground" will of course be measured, as here, by objective standards under all the circumstances of the case We believe our dissenting colleague errs in asserting that "reasonable ground" must be treated as a purely subjective matter QUALITY MANUFACTURING CO. 199 may choose to forego it unless he is afforded the safe- guard of his representative's presence. He would then also forego whatever benefit might come from the inter- view. And, in that event, the employer would, of course, be free to act on the basis of whatever informa- tion he had and without such additional facts as might have been gleaned through the interview.4 This seems to us to be the proper rule where, as here, the interview, whether or not purely investigative, con- cerns a subject matter related to disciplinary offenses. We would not apply the rule to such run-of-the-mill shop-floor conversations as, for example, the giving of instructions or training or needed corrections of work techniques. In such cases there cannot normally be any reasonable basis for an employee to fear that any ad- verse impact may result from the interview, and thus we would then see no reasonable basis for him to seek the assistance of his representative. In the instant case, we find that King had a reasona- ble basis for desiring union representation and that Respondent discharged King because she was insisting on that right.' There can be no doubt that under the facts and circumstances of this case King had reasona- ble grounds to believe that disciplinary action might result from the Employer's investigation of her con- duct. Under these circumstances King reasonably re- quested union representation. It is also clear that Re- spondent discharged King for insisting on this right. Therefore, we conclude that King's discharge was in violation of Section 8(a)(1).6 II THE SUSPENSION OF MULFORD AND COCHRAN; THE DISCHARGE OF MULFORD Turning next to Respondent's suspensions of Mul- ford and Cochran, Respondent claims that both em- ployees were suspended for being away from their ma- chines without permission . The Trial Examiner finds this reason was pretextual. There is ample evidence in the record to support, and we adopt, this finding. In particular, we note that Mrs. Gerlach testified that un- ion chairladies had left the working floor in the past on union business without being disciplined. It follows that the disparate treatment here was motivated by the Here also, our dissenting colleague asserts that we will be compelled to resort to purely subjective considerations in judging employer conduct We disagree Whether discipline was imposed for cause , or for discriminatory reasons, is a factual matter with which we regularly deal in cases of 8(a)(1) and 8(a)(3) violations In literally thousands of cases, this Board has deter- mined whether pretextual reasons were advanced , and we have done so without floundering hopelessly in the elusive subjective considerations con- jured up in dissent For the reasons set forth by the Trial Examiner, we find that King had not, as Respondent contends , abandoned her job Respondent does not contend that King was discharged for her actions on October 10, nor would the record support such a contention We deem it unnecessary to determine whether the discharge also vi- olated Sec 8(a)(3), as such additional finding would not affect our remedial order Respondent's desire to punish Mulford and Cochran for performing their duties as union chairladies in seek- ing to represent King at the conference Respondent requested. As such conduct is a protected concerted activity, the suspensions violated Section 8(a)(1) of the Act.' As to Mulford's discharge, it is quite clear that Re- spondent took this action because Mulford was insist- ing on representing King. Respondent claims that it did not discharge Mulford but that she abandoned her job. However, we find no merit in this contention as it is clear, for the reasons stated by the Trial Examiner, that Respondent in fact discharged Mulford. Moreover, it is clear that the reason Respondent discharged Mulford was her insistence on representing King. Thus she was discharged for engaging in a protected concerted ac- tivity, and the discharge violated Section 8(a)(1) of the Act.' III THE DISCHARGE OF COCHRAN Finally, as to Cochran's discharge, it is clear that Respondent discharged Cochran because she sought to engage in a protected concerted union activity, filing grievances on behalf of herself, Mulford, and King.' Thus her discharge was in violation of Section 8(a)(3) and (1) of the Act. 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 Respondent, Quality Manufacturing Company, Point Pleasant, West Virginia, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's recommended Order, as herein modified: 1. Delete paragraph 1(b) of the recommended Order and substitute the following: "(b) Disciplining any employee for requesting to be represented by a labor organization at any interview or meeting held with the employee where the employee has reasonable grounds to believe that the matters to be discussed may result in his being the subject of discipli- nary action." This case is distinguishable from Emerson Electric, 185 NLRB No 71 (Member Jenkins concurring) in that the action taken against the two em- ployees was in fact taken because they had left their work stations without permission, whereas in the instant case that reason was pretextual We deem it unnecessary to determine whether the discharge also vi- olated Sec 8(a)(3) as such additional finding would not affect our remedial order. As in the cases of Mulford and King, Respondent contends that it did not discharge Cochran but that she abandoned her job We find no merit in this contention as it is clear, for the reasons stated by the Trial Examiner, that Respondent in fact discharged Cochran 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Reletter paragraph 1(c) as paragraph 1(f) and in- sert the following paragraphs 1(c), 1(d), and 1(e): "(c) Requiring, under threat of discipline, that any employee take part in an interview or meeting without union representation , where such representation has been requested by the employee and where the em- ployee has reasonable grounds to believe that the mat- ters to be discussed may result in his being the subject of disciplinary action." "(d) Discriminating against union chairladies for seeking to represent employees at any meeting held with an employee where the employee has reasonable grounds to believe that the matters to be discussed may result in his being the subject of disciplinary action and the employee has requested such representation." "(e) Discriminating against union chairladies for seeking to file grievances." 3. In footnote 3 of the Trial Examiner's Decision change "10" to "20" days. 4. Substitute the attached notice for the Trial Ex- aminer's notice. MEMBER KENNEDY, dissenting in part and concur- ring in part: I concur with the decision of my colleagues that the discharge of employee Cochran because, as assistant chairlady, she sought to file grievances on behalf of herself and employees Mulford and King violated Sec- tion 8(a)(3) and (1) of the Act. However, because I am of the view that their decision is not supported by the facts and the law, I must dissent to my colleagues' conclusion that the discharge of employee King, the suspension of employees Mulford and Cochran, and the subsequent discharge of Mulford violated Section 8(a)(1), which proscribes interference with, restraint, or coercion of employees in the exercise of rights guar- anteed in Section 7. My colleagues have concluded that it is a violation of Section 8(a)(1) for an employer to discipline an em- ployee who insists on union representation when sum- moned to an interview with the employer, regardless of whether such interview is investigatory or disciplinary. As I construe their holding, my colleagues seem to say that the right to union representation at such an inter- view stems not from Section 8(a)(5), as in the Texaco case, but directly from Section 7 relating to the right to engage in concerted activities for mutual aid or protec- tion. In my opinion, such holding has no statutory support. The majority would relegate to the employee whom the employer wishes to interview the determination whether such interview is to be disciplinary or "run-of- the-mill shop-floor conversation." In the event the em- ployee has "reasonable grounds to believe" that disci- plinary action might result from the interview, such employee could insist on union representation without fear of discharge or other consequences for such insist- ence. No suggestion is contained in the' majority deci- sion for the standards to be used in testing for "reasona- ble ground" or for "reasonable basis" for fear that the interview will have an adverse impact upon the em- ployee's employment status . My colleagues' holding reposes solely in the employee a determination as to the nature and scope of the interview, and makes such employee's state of mind conclusive as to whether the interview may be held with or without union represen- tation. The employer's purpose for the interview, i.e., whether it is to be investigatory or disciplinary, is, un- der the majority decision here, largely irrelevant. Pre- sumably, the employee whom the employer desired to interview would be under no obligation to disclose to the employer his state of mind or the reason why he desired to be represented by the union. The "reasonable grounds to believe" that disciplinary action might re- sult from the employer 's interview with the employee would not have to be revealed . Even in circumstances where the employer assures the employee that the inter- view is to be purely investigatory the employee could, based wholly upon his own state of mind, decline to participate, unless union representation is permitted him. Although my colleagues seem to imply that the em- ployer is free to discipline an employee if he suspects the employee is engaging in improper conduct, he must do so only after an interview at which the employee has been represented by the union, if the employee has requested representation, or before an interview with the employee is requested. To do otherwise could sub- ject the employer to a complaint that the discipline was for insistence on union representation. If disciplinary action is taken after a request for an interview, which interview is declined by the employee unless union rep- resentation is permitted, the employer will undoubt- edly have to defend himself from an unfair labor prac- tice charge at which the only issue will be the reasonableness of the grounds for the employee 's belief that the interview was to be disciplinary in nature. In any such proceeding, only the employee's subjective state of mind will presumably be examined , and the violation will turn not on any objective considerations but on the subjective state of mind of the employee. The Board has long held that in testing for interfer- ence, restraint, and coercion under Section 8 (a)(1) the subjective state of mind of an employee is largely im- material. Forest Oil Corporation, 85 NLRB 85. "Sub- jective state of mind of employees is of little weight" in determining whether Section 8(a)(1) is violated. B. M. C. Manufacturing Corporation, 113 NLRB 823, 825, footnote 8. See also Bon-R Reproductions, Inc., 134 NLRB 429. "To the extent that the testimony in ques- tion may disclose the subjective state of mind of the employees ... it is well established that the test to be QUALITY MANUFACTURING CO. applied to determine whether an employer's conduct was violative of the Act is an objective rather than a subjective one. N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 588." The Rein Company, 114 NLRB 694, 698. The majority decision here has the effect of reversing a long line of cases by now holding that conduct of an employer can and will be judged as privileged or viola- tive of the Act depending on how it is interpreted and construed by the employees involved and in what state of mind such conduct actually places such employees. In my view , such holding is contrary to sound interpre- tation and administration of the Act and is completely unwarranted. Moreover, the vagueness of the holding of my col- leagues here creates myriad and insurmountable prob- lems of implementation and effectuation , not only for the Board, but for employers and unions as well. For instance, how will an employer be able to investigate theft of his products without access to his employees whom he may not suspect of having participated in such thefts but who may have information leading to solution of the crime? The employer may not wish to expose to outsiders knowledge of the thefts or the fact that he is conducting an investigation . Under the hold- ing of my colleagues here, efforts of an employer to uncover such thefts by talking to employees not in- volved in them but possibly having valuable informa- tion on them could be completely frustrated . If an em- ployer discharges an employee for refusal to participate, unrepresented, in an interview concerning such thefts, in circumstances where the employee was not suspected of having engaged in stealing but did have information concerning the crime, and if such employee filed an unfair labor practice charge, what information will the employee be required to disclose to the Board agent investigating the case to establish a prima facie case and to justify a conclusion that he had reasonable ground to believe that disciplinary action would result from the interview with the employer? Shall the union be deemed guilty of an unfair labor practice when it is unable or unwilling to furnish a representative to accompany an employee to an inter- view with the employer? Other than serving as a wit- ness in the interview, what function will the union representative be required to perform in the discharge of the union's status as collective -bargaining represent- ative? My colleagues would free an employer to discharge an employee who he suspects would be unwilling to take part in an interview unrepresented by the union. The validity of such discharge would then presumably be tested under the grievance-arbitration provisions of the collective-bargaining agreement . Such holding does not promote an investigation before drastic action is taken and in my view does not accord with the purpose and policy of the Act as set forth in Section 1(b); i.e., 201 to provide orderly and peaceful procedures for prevent- ing the interference by either the employees or employ- ers with the legitimate rights of the other. I am of the opinion that the encouragement of the practice of putting into motion the machinery of inquiry before drastic action is taken would better serve the purposes of the Act. Although my colleagues appear to have in large part premised their decision on their conclusion that it is a serious violation of an employee's individual right to be represented by his union if he can only request or insist on such representation under penalty of disciplinary action, the statute, as written and interpreted , does not, in my view, protect employees from violation of each and every individual right. In Lafayette Radio Elec.• tronics Corp., 194 NLRB No. 77, we recently affirmed a Trial Examiner's Decision dismissing an 8(a)(5) and (1) complaint based on an employer's refusal to permit a union representative to be present during the em- ployer's interrogation of employees about alleged thefts. There, we affirmed the Trial Examiner's rejec- tion of the contention that the principle underlying the Supreme Court's decision in Escobedo v. State of Il- linois, 378 U.S. 478, should be made applicable in em- ployee interrogations . We rejected the argument that in employer-employee interrogations there exists a statu- tory right to union representation and said , in effect, that if any such right exists it is a contractual right. Similarly here, the right to union representation during an interview with the employer must, in my view, be based on contract. It should be the subject of the collec- tive-bargaining process like any other term or condi- tion of employment. With respect to the suspension of employees Mulford and Cochran, and the subsequent discharge of Mul- ford, I would find that the suspensions and the dis- charge were the result of their having left their work stations. Emerson Electric Co., 185 NLRB No. 71; Russell Packing Company, 133 NLRB 194; Terry Poul- try Company, 109 NLRB 1097. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Up- per South Department, International Ladies' Gar- ment Workers' Union, AFL-CIO, or any other labor organization, or discourage activities pro. tected by the National Labor Relations Act, by suspending or discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discipline any employee for re- questing to be represented by a labor organization at any interview or meeting held with the em- ployee where the employee has reasonable grounds to believe that the matters to be discussed may result in his being the subject of disciplinary action. WE WILL NOT require any employee to take part in an interview or meeting where the em- ployee has reasonable grounds to believe that the matters to be discussed may result in his being the subject of disciplinary action and where we have refused that employee's request to be represented at such meeting by a labor organization. WE WILL NOT discriminate against union chair- ladies for seeking to represent employees at any meeting held with an employee where the em- ployee has reasonable grounds to believe that the matter or matters to be discussed may result in his being the subject of disciplinary action and the employee has requested such representation. WE WILL NOT discriminate against union chair- ladies for seeking to file grievances. WE WILL offer Catherine King, Delila Mulford, and Martha J. Cochran each immediate and full reinstatement to her former position or, if such position no longer exists, to a substantially equiva- lent one, without prejudice to the seniority and other rights and privileges enjoyed by each, and make each whole for any loss of pay she may have suffered, with interest at the rate of 6 percent, by reason of her discharge (including also suspension of Mulford and Cochran). All our employees are free to become, remain, or refuse to become or remain, members of said Upper South Department, or any other labor or- ganization. QUALITY MANUFACTURING COMPANY (Employer) Dated By (Representative) (Title) WE WILL notify immediately the above- named in- dividuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This :s an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684- 3686. TRIAL EXAMINER'S DECISION JAMES V. CONSTANTINE, Trial Examiner: This is an un- fair labor practice case brought pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act. It was generated by a charge filed on March 19, 1970, by Upper South Department, International Ladies' Garment Workers' Union, AFL-CIO. Said charge names Quality Manufactur- ing Company as the Respondent. Thereafter on May 25, 1970, the General Counsel of the National Labor Relations Board , herein called the Board, through the Regional Director of Region 9 (Cincinnati, Ohio), issued a complaint against said Respondent . In sub- stance said complaint , which is based on the foregoing charge, alleges that Respondent violated Section 8(a)(1), (3), and (5), and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has submitted an answer admitting some allegations in the com- plaint but denying that it committed any unfair labor prac- tices. Pursuant to due notice this case came on to be heard, and was tried before me, on August 5 and 6, 1970, at Point Pleasant, West Virginia. All parties were represented at and participated in the trial, and had full opportunity to adduce evidence, examine and cross-examine witnesses, file briefs, and present oral argument. Briefs have been received from the General Counsel and the Charging Party. A short memo- randum has been submitted by Respondent. This case presents the issues of whether Respondent: 1. Refused to allow an employee to be represented by the Charging Party at a meeting called by Respondent to repri- mand and discipline said employee. 2. Threatened to take reprisals against employees because of their union activities. 3. Suspended, or discharged, or did both to, employees because of union membership or activities, or because of protected concerted activities, or both. 4. Shut down its plant and laid off employees in its production and maintenance unit for about 12 days to dis- courage membership in, or activities for, their union, or to discourage them from engaging in protected concerted activi- ties, or both. Upon the entire record in this case, and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I AS TO JURISDICTION Respondent, a West Virginia corporation, is engaged at Point Pleasant, West Virginia, in manufacturing women's clothing. During the year preceding May 25, 1970, when the complaint herein issued, Respondent sold and shipped products valued in excess of $50,000, directly to customers located outside the State of West Virginia. I find that Re- spondent is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction over Respondent in this proceeding. QUALITY MANUFACTURING CO. 203 II THE LABOR ORGANIZATION INVOLVED Upper South Department, International Ladies' Garment Workers' Union , AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. General Counsel's Evidence On or about October 24, 1968, the Union won an election to become, and on or about November 1, 1968, it was certified as, the exclusive bargaining representative of Respondent's employees in an appropriate unit. Thereafter the parties nego- tiated and executed a collective-bargaining agreement. The answer concedes that said unit consists of Respondent's production and maintenance employees, excluding all office clerical employees, professional employees , and guards and supervisors as defined in the Act. 1. The suspension and discharge of Martha J. Cochran Martha Cochran was employed as a machine operator by Respondent . While so employed she was secretary-treasurer and assistant shop chairlady for the Union at Respondent's plant. As assistant chairlady she represented , during the ab- sence of the chairlady , employees in presenting grievances to management. She also served on the Union 's negotiating committee. On the morning of October 13, 1969, employee Catherine King asked Cochran to represent King on a grievance . Agree- ing to do so, the two went to Mr. Gerlach's office. However, they first talked to Mrs. Mary Gerlach , Respondent's production manager. But Mrs. Gerlach warned Cochran to go back to work "if you want your job." Continuing, Mrs Gerlach stated that "we want to talk to [King] ... where we left off Friday." At this point Cochran stated "that is union business and [King] has asked me to represent her." King refused to talk to Mrs. Gerlach without Cochran's being present "as Union representative." Soon Cochran and King met with Gerlach, Sr. When Cochran asked him if he was going to give King the latter's timecard , he replied that he would not until King "came into the office and talked to him in private." Although Cochran protested that King "wants representation ," Gerlach insisted he would talk to them "one . . at a time." When Cochran asked him what he wanted to talk to King about, Gerlach replied that it was none of Cochran 's business. Cochran re- mained there with King, and told Gerlach they would "sit out there [outside the office] until [he] decided to give [King] her card." Soon Cochran's card "was pulled" at about 7:30 a.m. On October 14 Cochran entered the plant to work. Again she accompanied King to the office of Gerlach , Sr., and asked him if he was going to give King the latter's timecard. Ger- lach answered that he would do so only if King came into his office alone to "talk to him in private." When Cochran asked for her own timecard , Gerlach replied that she was suspended-"penalized"-for 2 days for being away from her machine. Thereupon Cochran and King departed from the plant. The next day King and Cochran, accompanied by em- ployee Delila Mulford, went to the office of Gerlach , Sr., at about 7 a.m. When Mulford asked for King's card , Gerlach said he would not give it until King saw him alone in his office. Then he informed them that Cochran was still sus- pended. Thereupon the three left. On October 16, her suspension having ended, Cochran reported for work. Accompanied by King, Cochran went to Mrs. Mary Gerlach at about 7 :20 a.m. Soon Delila Mulford joined them . Although Cochran worked that morning, King and Mulford did not. At the close of the lunch hour , i.e., at about 11:50 a.m., Cochran presented some written grievances to Gerlach , Jr. But Gerlach refused to entertain them on the ground that he was "leaving town ." So Cochran placed the written grievances on Gerlach 's desk. However, Gerlach threw them in the trashcan. Shortly after the last described incident Gerlach "pulled" Cochran's timecard, and then told Cochran "you're not working this afternoon . You're nothing but a damn smart aleck." This caused Cochran to call on Gerlach, Sr. When Cochran asked if Gerlach , Jr., had fired her, Gerlach, Sr., replied, "You heard what he said . You worked this morning but you're not working this afternoon." When Cochran asked what she was supposed to do, Gerlach , Sr., replied "Just go on home .. . and draw unemployment." As she left Cochran accused Gerlach, Sr., "you don't know how to run a busi- ness." Later that day Cochran telephoned Katherine Stephens, Respondent's secretary, inquiring whether "Mr. Gerlach" wanted her to report back to work the next day . Stephens replied that he did not. Thereupon Cochran informed Ste- phens that Mr. Gerlach could reach her at Cochran's home phone when he needed her. However, Cochran has neither been called since then nor otherwise been notified to return to work. Respondent has a policy of requiring employees to obtain permission to leave a work station. The president of the Un- ion's local, Alice Hoschar, always obtained permission to leave the floor to discuss union matters with management. 2. The suspension and discharge of Delila Mulford and the discharge of Catherine King Mulford was employed by Respondent to piece skirts. She also served as the Union 's chairlady at Respondent's plant. Respondent was notified by Union Business Agent Elizabeth Wiley and by Mulford that Mulford had been selected to act as such chairlady On about October 1, 1969, Mulford pre- sented a written grievance on behalf of an employee to Ger- lach, Jr. He replied that he was "not going to fool with that grievance , that he was going to close the plant down around December the 1st." On October 10, 1969, Mulford as chairlady met with Mrs. Gerlach, Gerlach, Sr., and Gerlach , Jr., to discuss piecerates, including that of Catherine King. During the conversation Gerlach, Jr., told Mulford that if she "did not like the way it was there in the company to go elsewhere ." Mulford had not obtained permission to leave her work station on this occasion , and the Gerlachs told her to go back to work. Later that day, as a result of differences between Mrs. Gerlach and employee Catherine King, Mrs. Gerlach or- dered King to go to the office . This caused King to ask Mulford to accompany her there. Although Mulford went with King, the former was ordered by Mrs. Gerlach and Gerlach, Sr., to return to her work station . However, Mul- ford replied that King, as a dues paying union member, was entitled to have Mulford present. Both Gerlachs retorted that Mulford was endangering her job by remaining there Com- plying, Mulford returned to her work. On Sunday, October 12, 1969, Mrs. Gerlach , by direction of Gerlach, Sr., telephoned Mulford not to report to work on the next 2 days, but to come in on the following Wednesday. Mulford knew, although she was not told, that she was thus being suspended because she had left her job without permis- sion on October 10. So Mulford remained at home on Octo- ber 13 and 14. On October 15, when Mulford returned to work , Gerlach, Sr., told her to mind her own business and that she was "going to get trouble" for not minding her own business. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mulford replied that she was minding her business, and that King "had a right to union representation as well as anybody else ... " Gerlach replied that Mulford had been suspended 2 days "for coming off of the floor with Catherine King." However, Mulford refused to go to work until she "found out what was happening to " King and Cochran. Mrs. Gerlach, who was also present, answered that Cochran "was sus- pended yet," and that King "was wanted in the office with- out" Mulford. Then Mulford went back to work. The next day, October 16, Mulford accompanied by King and Cochran, went to the outer office to ascertain "what was going to happen" to the latter two employees. Mrs. Gerlach instructed Cochran to go to work and directed King to see Gerlach, Sr., in the office without Mulford. Thereupon Ger- lach, Sr., who was present, told King that "if she went out the door ... she was finished." Since King refused to see Gerlach, Sr., without Mulford, King "didn't have anything else to do but to" leave, i.e., go out the door. At this point Mulford asked Gerlach, Jr., whether he wanted her to go to work. He replied, "No. You've abandoned your job. You're finished." 3. The layoffs of October 1969 On October 28, 1969, machine operator Vonna Oliver and all the other machine operators were laid off by floorlady Helen Rice. At the same time Rice informed Oliver that "We've run the work out ... I don't know when we'll call you back. Until this mess gets straightened up I just don't know." Sometime in early November 1969 Oliver was called back to work. Another employee laid off by Rice on October 29 or 30 is Alice Hoschar. Rice told her, "I am going to lay you off until this mess is straightened out." Hoschar returned to work on November 12. 4. Threats of reprisals Alice Hoschar is president of the Union's local at Respond- ent's plant. On January 12, 1970, she asked Gerlach, Jr., why Mary Goodnight was taken off the operation Goodnight was performing and such operation was assigned to Maxine Warner, an employee with less seniority. Gerlach insisted he had a right to make such assignments. He also instructed Hoschar not to "come off the floor with a girl" during work- ing hours. Later the same day Gerlach, Sr., told her that he had suspended Delila Mulford for "coming off the floor with King." 5. Other evidence in support of the complaint About December 3, 1969, Joel Goolst, an organizer for the Union, requested Lawrence B. Gerlach, Jr., Respondent's general manager, to reinstate the above three discharged em- ployees, i.e., King, Cochran, and Mulford. Gerlach refused, giving reasons. The reason he gave for denying reinstatement to Catherine King is that she "would not come into the office alone" but wanted "somebody else in the office when she presented her grievance," although for 25 years prior to this she had been a friend of the family and "talked directly to the family." He also explained that employees Mulford and Cochran were discharged because they came off the floor without permission to present a grievance as chairladies of the Union. The grievance was that of employee King. Chair- ladies are union representatives who present grievances on behalf of employees to management. Continuing, Gerlach stated that he did not want a union, and hoped that the Union would "open up another factory in town and take the union people there" so that he "could run his business without a union." Further, at this meeting Gerlach mentioned more than once that he did not under- stand why grievances had to be written and "why people couldn't come and talk to him as they have done in the past before the Union came around." Goolst had previously requested reinstatement of said three employees about November 19, 1969. At that time Gerlach, Jr., denied this request for the same reasons men- tioned at the foregoing meeting on December 3. About November 19, 1969, Union Organizer Goolst talked to Respondent's general manager, Lawrence B. Gerlach, Jr., requesting reinstatement of three employees. As noted above, Gerlach refused. Further, Gerlach stated he would close down before he reinstated these three employees and pointed out that he had closed the plant once before rather than take back a discharged employee named Joanne Sheets. Gerlach added that "I can do it again." At the foregoing November 19 meeting Goolst also dis- cussed with Gerlach the shutdown of Respondent's plant from October 28 to November 10, 1969, Gerlach insisted that he "did not want the work until this union thing gets straight- ened out," and that Gerlach so informed his supplier in Cleveland, Ohio, one Paul Marcus. About January 12, 1970, Goolst again spoke to Gerlach, Jr., concerning the three discharged employees. This time Gerlach mentioned there was a possibility of taking them back "if we could work something out. A f [the Union] would not press for any backpay money" and also dropped "charges or grievances" for such discharges. Gerlach also observed that "because the three troublemakers are out of the factory ... there's no reason for any grievances. Everybody's happy." About January 21, 1970, Goolst spoke to Lawrence R. Gerlach, Sr., Respondent's president, regarding the three dis- charged employees. Gerlach refused to take them back be- cause "their conduct in the plant and their conduct to him was such that he couldn't have them back ... they no longer have respect" for management. About October 20, 1969, Mrs. Elizabeth Wiley, a union business agent, spoke to Gerlach, Sr., about rehiring the three dischargees, i.e., King, Cochran, and Mulford. Gerlach re- plied that these three had been giving him a lot of trouble, "and [King] didn't want to come into the office and talk to me without having union representation. And that I am not going to allow." Gerlach added that he did not further desire to discuss this problem or "any other damn union problem" or else he would "close the plant." On about October 20, 1969, Mrs. Wiley asked Gerlach, Jr., to take back the three discharged employees. Replying, he objected that the Union was trying to tell him how to run his plant and that he would "close the plant" as he could not stand the "worry and aggravation." On October 28, 1969, Mrs. Wiley spoke to Gerlach, Jr. Gerlach added that "it's a constant turmoil in here," and that he did not want any work "as long as I'm having all this union trouble." Nevertheless, in response to Wiley's question, Ger- lach stated that his supplier, Marcus, could supply him with work. On October 30 Respondent laid off some employees. On November 13, 1969, Wiley again asked Gerlach, Jr., to take back the three discharged employees. But Gerlach re- plied, "Absolutely not," because they were "nothing but trouble makers." On November 25 Wiley again interceded with him on behalf of these three employees, but without success. In fact Gerlach said he would close the plant if Respondent was "forced to bring them back." QUALITY MANUFACTURING CO B. Respondent's Evidence Mary Kathryn Gerlach, Respondent's production manager, with her husband, Lawrence, Sr., and her son, Law- rence, Jr., owns Respondent. A summary of her testimony follows. Employees may not leave the work floor during working hours without first obtaining permission to do so from Mrs. Gerlach or floorlady Helen Rice. This had been a company rule from the beginning. At no time has the Union objected to such a rule. Employee Catherine King worked for Respondent a num- ber of years. During that time King "communicated or talked individually with members of the [Gerlach] family ... lots of times." A few days prior to October 10, 1969, Catherine King was asked by floorlady Rice to lower the volume of a radio which King had turned on at the latter's work station. Upon hearing the noise from said radio Gerlach directed King to turn off said instrument not only because it "made a heck of a racket," but also because "a company rule [did not] allow [them] in the place." King complied with Gerlach's com- mand. Some days later, about October 10, King complained that she could not produce her quota. Thereupon King waved her arms and made other gestures at two other female employees who also could not make their quota, and soon their ma- chines were stopped. When Gerlach asked King "what is wrong here ... what's the commotion," King replied "some- thing about a repair." At this, Gerlach admonished King to "fix it [or] . . let one of the floor girls [fix] it ... and quit causing this disturbance." Thereupon King told Gerlach to mind her own business and also "sassed" Gerlach. This caused Gerlach to ask King to accompany her to the office "to talk to Mr. Gerlach, Sr., about it." (Employee Mayme Taylor confirmed Mrs. Gerlach as to what transpired on this occasion.) However, King asked Delila Mulford to come with her to the office. Mrs. Gerlach then told Mulford that this was not a grievance, that it did not concern Mulford, and directed Mulford to remain at her work station. In fact, Mrs. Gerlach "didn't consider it a union matter." Nevertheless, Mulford, without obtaining permission' to leave her work station, went along with Gerlach and King to the office. Mrs. Gerlach told Mr. Gerlach that Mulford was there without permission. Although requested, King refused to speak alone to Gerlach, Sr. Nevertheless the latter told Mulford to return to her machine as he intended to talk to King without Mulford being present. Mulford answered she had a right to be there to represent King, and refused to go back to work immedi- ately. Gerlach, Sr., also told Mulford that she had no business there, that "it wasn't a grievance," that it did not concern Mulford, and to return to her station. Soon, however, Mul- ford did go back to work. Mrs. Gerlach denies that she made any threats of reprisals to Mulford, or Hoschar, or any other employee, because of union or other protected activities. Lawrence Gerlach, Jr., is a part owner of Respondent and its general manager. A summary of his testimony ensues. Gerlach denies that Respondent's plant was closed be- tween October 29 and November 10, 1969, to discourage membership in the Union. In talking to Union Organizer Goolst about this aspect of the charge in early 1970, Goolst ' On one occasion, and perhaps it was this one, Mulford presented a grievance, according to Mrs Gerlach, "at noon hour" and not on working time See pp 205-206 of the transcript And Mulford's predecessor as chairlady, a Mrs Holland, handled grievances during working hours without obtaining permission to leave her station Id 206 205 told Gerlach that "it had no merit, that it was injected to give some and take some." Respondent's principal supplier of work is Stanley M. Feil Company, owned by Paul Marcus of Cleveland, Ohio. Thus Feil is Respondent's only customer. In October 1969 Re- spondent was "necessarily supposed to be working on" cer- tain styles for Feil which had been advertised. Patterns for these styles were furnished by Feil. But the piece goods, i.e., the cloth, for such styles, supplied by Mission Valley Mills of New Brownsville, Texas, had not become available at the time. Further, Respondent had piece goods for other styles but had not been supplied with patterns (or markers) for such styles. It is essential that Respondent "have the right patterns for the right goods" before production can start on any style.. Hence Respondent in the fall of 1969 "couldn't make dresses." On November 3, 4, and 5, 1969, everybody was laid off but the cutter. The latter during this period performed maintenance work, as "he is too vital of an employee to take a chance on losing." The cutters were called back on the 6th of November. As employees ran out of work on their particular operation they were necessarily laid off. When piece goods and patterns were received laid off employees were recalled "in the reverse order." But no production employee was laid off when there was work for him to do. Layoffs occur "about every season" because Respondent "did not have the right match of mark- ers [patterns] and materials." Gerlach also testified that he spoke to Goolst about the three dischargees, i.e., King, Cochran, and Mulford, claiming that he told Goolst "we always need operators and two out of three of [the dischargees] was real good and anytime they would obey the same rules as the rest of them they had their job ... My father wanted a letter though from them to that effect." Although Goolst replied these three would obey the rules Gerlach nevertheless wanted this assurance "put ... into a letter form." He further testified that if he uttered any antiunion statements to Goolst they were uttered in jest or "horseplay." And Gerlach insisted that King, Cochran, and Mulford were not discharged but that "they abandoned their employment by their own action." Gerlach also testified that the Respondent has a rule that "nobody leaves the stitching room floor without permission." And he denied threatening to take reprisals against an em- ployee because of union activities, as alleged in paragraph 8(c) of the complaint. During the noon or lunch hour of October 16, 1969, Mar- tha Cochran asked Gerlach to discuss some grievances with her. He replied that, as he was going out of town, he could not then do so, but would take them up with her upon his return the following Monday. In fact, he would not even receive the written grievances at that time but wanted to wait until Monday. But Cochran insisted "By God, you'll take time" to consider the grievances at the time. Shortly there- after Gerlach "pulled" Cochran's card and told her she would not be working that afternoon. When Cochran asked if she had been fired, Gerlach repeated that she would not be working that afternoon, but that she was not fired.(However, employee Mayme Taylor, who testified for Respondent, stated that although she heard Cochran asked if Cochran had been fired, Gerlach said nothing in reply. On the other hand, other witnesses for Respondent, testified that Gerlach an- swered that Cochran had not been fired.) Although Cochran shortly thereafter telephoned that "if we wanted her [to come back to work] we could call," Respondent never did call her back to work. Gerlach insisted that Cochran was sent home that afternoon because she barged in on him and demanded immediate consideration of some grievances. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gerlach denied that he told Delila Mulford that the plant would be closed on December 1, 1969. Nor did the plant close on that day. Explaining the discipline of King, Gerlach stated that she was so disciplined for violating a rule. On being cross-exam- ined he referred to this rule as "a request to have a conference with an employer ... alone," i.e., she demanded to have a union steward present with her. He "contended it is manage- ment's right to have a personal conference with an em- ployee." Gerlach, Sr., "wanted to speak to [King] in a private manner ... about her conduct," according to Gerlach, Jr. "And if something there is said that is not right they have a grievance procedure to go through." But he added that King "violated [another] rule by causing a disturbance on the floor and also by playing a radio." However, Gerlach insisted that King was not fired but had "abandoned her job." Mary Stephens, Respondent's secretary, in substance tes- tified as follows. On October 10, 1969, a Friday, employees Catherine King and Delila Mulford came to the office. Mr. Gerlach asked King to see him alone, as he wanted to talk to her "a couple of minutes." At the same time Gerlach inquired of Mulford what she was doing there. When Mul- ford replied that "she came down with" King, Gerlach ad- monished her that Mulford wasn't supposed to come off the floor ... that was against the rules." However, Mulford in- sisted she "would come off any time that she wanted to." Thereupon Gerlach directed Mulford to go back upstairs and he would decide what he would do about her attitude. Then Gerlach stated he wanted to talk to King alone. But both King and Mulford then left together, because King refused to speak to him alone. The following Monday, October 13, King and Martha Cochran called on Mr. Gerlach. Stephens was present. Again Gerlach asked to speak to King alone for a couple of minutes. But King refused to speak to him unless Cochran was also present. At one point of the conversation King called Gerlach a hog. On October 14, 1969, King and Cochran again came to the office. Gerlach repeated his desire to speak to King alone for "a couple of minutes," but Cochran insisted this could not be done as Cochran would have to be present during any such conversation. Although Gerlach then ordered Cochran to return to work, she refused to do so. Soon Cochran and King left the plant. On October 15, King, Cochran, and Mulford came to the office. Soon Mulford went to work. Then Gerlach asked King to talk to him alone, but Cochran forbade this, insisting that she had to be with King. Not long after this King and Coch- ran went home. The above three employees again came to the office on October 16. Cochran immediately went to work. Although Gerlach asked to speak to King alone, Mulford insisted on being present during the conversation As King and Mulford left, Gerlach told them that "if you go out the door this time I consider you have abandoned your job as I have put up with you for a week on this." Nevertheless King and Mulford went out the front door and left the plant. At about 2 p.m. on October 16, 1969, Cochran telephoned Stephens that Coch- ran was not coming back to work until called back to work by Stephens. But Stephens never did call Cochran although it was part of the former's job to call back employees who had been laid off. However, Stephens insisted that she called back laid off employees only when told to do so, and she was not told to recall Cochran. Stephens also testified that Respondent had adopted a rule that employees had to have permission to leave the sewing room floor during working hours, and that it had been in force for a considerable period of time before 1969. Another important witness for Respondent is Paul Mar- cus. An abstract of his testimony follows. Marcus is connected with Stanley M. Feil, Incorporated, of Cleveland, Ohio, a dress manufacturer. For several years Feil has given orders to Respondent. The latter fills said orders by supplying Feil with manufactured dresses. In this connection it is the responsibility of Feil to purchase the cloth for such dresses from various mills throughout the country and cause it to be shipped to Respondent to use in producing dresses for Feil. In addition Feil supplies Respondent with markers or patterns to be used in making the dresses ordered by Feil from Respondent Finished dresses are sold by Feil; they are shipped by Respondent to Feil's customers as di- rected by Feil. According to Marcus, Respondent manufac- tures exclusively for Feil and does no work for anyone else. Mission Valley Mills of Brownsville, Texas, is one of those supplying Feil with cloth to be used by Respondent in fulfill- ing Feil's orders. In October 1969 Mission shipped fabric to Feil which, because it was damaged, was unacceptable to Feil. Markers for such cloth had been furnished to Respond- ent by Feil. As a result, Respondent was unable to produce the styles of dresses which Feil intended to be made from this fabric. At that time Respondent had other good cloth on hand for other styles but had not received from Feil the markers necessary to produce dresses from such cloth. As a consequence Feil sought to rectify the situation by (a) seeking to obtain first quality material to replace the damaged cloth, and (b) producing markers to be used by Respondent in utilizing the good cloth Respondent had on hand. As to (a), Feil was so desperate for cloth that it transported by air good materials obtained from Mission, an expensive and costly operation. Considerable time (about 3 weeks) elapsed before Feil was able to supply Respondent with acceptable cloth under (a) above, and markers under (b) above. (See Resp. Exh. 4.) During some of this time Respondent was forced to curtail operations and, therefore, laid off employees . Because these are seasonal dresses, Feil lost some money because dresses were not available for the entire season. Respondent concluded the presentation of its defense with Lawrence K. Gerlach, Sr., its president. An abridgment of his testimony follows. Gerlach has known employee Catherine King for several years. As an employee, King "made it a practice" to "visit" Gerlach's office daily and he sometimes called her to the office as well. On October 10, 1969, Mrs. Gerlach, King, and Delila Mulford came to the office. Mrs. Gerlach complained of King's conduct which had "created quite an excitement [and] which stopped a lot of operators from working." Then Mrs. Gerlach left. Although Gerlach warned Mulford to return to work because it was against the rules to leave her work station without permission, Mulford insisted on staying with King. At this point Gerlach invited King into the office alone so he could speak to her, but King refused unless Mulford also went in with her. Thereupon Gerlach instructed both to re- sume work. However, Gerlach asked Mrs. Gerlach to sus- pend Mulford for 2 days. Just before work started on the following Monday, October 13, King came to the office accompanied by employee Martha Cochran. Notwithstanding that Gerlach requested Cochran to go to work, Cochran insisted on staying with King. And when Gerlach expressed a desire to speak to King she refused unless Cochran also remained with her Shortly thereafter King called him a hog. On October 14 King and Cochran again came to the office before work started. Although Gerlach requested Cochran to proceed to her work station, she persisted in staying there with King. When Gerlach asked King to speak to him alone, QUALITY MANUFACTURING CO. she refused. Soon both King and Cochran departed from the plant. On October 15, King, Cochran, and Mulford appeared at the office. Although Gerlach told all three to report to work, only Mulford obeyed; Cochran refused. When Gerlach asked to speak to King, she refused to do so except in the presence of Cochran. The next day the above three employees again showed up at the office. When Gerlach told them to go to work, only Cochran complied. Mulford insisted on staying there with King. Although Gerlach asked to speak to King she refused unless "somebody else [was] with her." This caused Gerlach to remark, that they return to work or else he would consider they had abandoned their jobs when they "went out that door." Soon Mulford and King left the plant. Neither Mul- ford nor King has "come around" since then. At noon on October 16 Cochran reported to Gerlach, Sr., that Gerlach, Jr., had fired her, and asked the former to confirm it in writing. But Gerlach, Sr., insisted that she had not been fired. At this Cochran told him that neither he nor any of his family had enough sense to run a business. Gerlach denies that he ever told Union Officials Goolst and Wiley that Respondent would not take back King, Cochran, and Mulford. C. Concluding Findings and Discussion The burden of proof rests upon the General Counsel to establish his case by a fair preponderance of the evidence, and no obligation rests upon Respondent to disprove any of the allegations of the complaint. Hawkins v. N.L.R.B., 358 F.2d 281, 283-284 (C.A. 7). I have been guided by this precept in arriving at the findings which follow. 1. As to the suspension and discharge of Martha J. Cochran It is my opinion, and I find, that Cochran was suspended for 2 days beginning October 14 for activity protected by the Act, i.e., representing employee King in Cochran's capacity as assistant chairlady of the Union. I find this violates Section 8(a)(1) and (3) of the Act. And I also find that the reason given her for suspending her, i.e., for being away from her machine without permission, is a pretext to disguise the true reason. The foregoing findings are based on the entire record and the following subsidiary facts, which I hereby find: a. Respondent had no written, posted, or oral rule against leaving a work station without permission. In this respect, I credit the General Counsel' s witnesses and do not credit Respondent's evidence inconsistent with said finding. I recog- nize, and find, that employees may not leave their work sta- tion during work hours whenever they wish and that it is imphedly understood that permission must be obtained to leave for protracted periods of time. Hence I find it is not necessary to communicate to employees the necessity of re- maining at work during working time unless excused there- from. Nevertheless, this unwritten rule against leaving a work station at will cannot operate to prevent a union steward from accompanying or representing an employee who requests un- ion representation in a conference with the employer, espe- cially when such conference may result in a reprimand or sterner discipline. For the Act guarantees union representa- tion at such conferences; and written or unwritten rules which conflict with such guarantee are to that extent invalid. Moreover the contract between the Union and Respondent overrides and renders ineffective any rule forbidding union respresentatives to leave a work station regarding grievances without permission. Nothing in said contract compels a un- 207 ion representative to obtain permission to discuss grievances with the employer. In fact the tenor of said contract implies that such permission is not a condition precedent. See article XXIII, section 1(a) and 2, where it is provided that 1. Any and all disputes, complaints, controversies, claims, or grievances whatever between the Union or any employees and the Employer which directly ... relate to . the acts, conduct, or relations between the parties shall be adjusted as follows: (a) The Shop Chairlady, together with a representative of the Union, shall at- tempt to settle the matter with a representative of the Employer ... 2. It is intended that this provision shall be interpreted as broadly and inclusively as possible. (Charging Party's Exh. 1.) b. Cochran was the Union's assistant chairlady, and Re- spondent had actual knowledge thereof. Respondent's evi- dence denying such knowledge is not credited. In any event I find that such knowledge may be imputed to Respondent under the Board's small plant rule. And I find that Respond- ent operated a small plant . Angwell Curtain Company, Ire. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7). In this connection I find that the meeting between King and Respondent related to King's alleged misconduct in con- nection with her duties and could result in a reprimand or severer discipline. Texaco, Inc., 168 NLRB 361, 362. And I expressly find that such meeting did not seek information and was not investigatory in nature. Hence the court's reversal of the Board in Texaco, Inc., supra, is not controlling. See 70 LRRM 3045 (C A. 5). Cf. Texaco, Inc., 179 NLRB No. 157; Jacobe, Pearson Ford, Inc., 172 NLRB No. 84; Chevron Oil Company, 168 NLRB 574, 579. c. Respondent entertained antiunion animus and commit- ted other unfair labor practices, as found herein. While I am aware that an employer may constitutionally oppose unions and is free to say so (N.L.R.B. v. Threads, Inc., 308 F.2d 1, (C.A. 4); N.L.R.B. v. Howard Quarries, 362 F.2d 236 (C.A. 8), J. P. Stevens & Co., Inc., 181 NLRB No. 97), nevertheless hostility to unions is a factor which may be appraised or evaluated in arriving at the true motive prompting a suspen- sion or discharge. N.L.R.B. v Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5); Maphis Chapman Corp. v. N.L.R.B., 368 F.2d 298, 303-304 (C.A. 4). d. Cochran was active in the union movement. She also was an experienced employee with a long service record. Disci- pline of active union adherents, especially if they are ex- perienced employees, is a factor which I have taken into consideration in determining the true reason behind Coch- ran's suspension It is true that "management can [discipline] for good cause, or bad cause, or no cause at all without incurring liability under the Act." N.L.R.B. v McGahey, 233 F.2d 406, 413 (C.A. 5). But "obviously the [discipline] of a leading union advocate is a most effective method of undermining a union organizational effort." N.L.R B. v. Longhorn Transfer Ser- vice, Inc., 346 F.2d 1003, 1006 (C.A. 5). In this connection I have oecn mindful of the modern doctrine that direct evi- dence of a purpose to violate the statute is rarely available because employers have acquired sophistication as to how to get rid of union members for alleged lawful cause. Hartsell Mills v. N.L.R.B., 111 F.2d 291, 293 (C.A. 4); N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8). e. It is not necessary that protected activ' y be the only reason responsible for Cochran's suspension. If the suspen- sion was inflicted substantially oecause of Cochran's pro- tected activity it violates the Act notwithstanding a valid ground for discipline might exist Betts Baking Co. v. N.L.R.B., 380 F.2d 199 (C.A. 10); N.L.R.B. v. Whitin Ma- chine Works, 204 F.2d 883, 885 (C.A. 1). 1 expressly find that 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cochran's protected activity was a substantial-but not necessarily the only-reason for her suspension. Cf. N.L.R.B. v. Symons Mfg. Co., 328 F.2d 835, 837 (C.A. 7); N.L.R.B. v. Park Edge Sheridan Meats, 341 F.2d 725, 728 (C.A. 2). f. Finally, I find that membership in, or activities on behalf of, a labor organization, or both, do not immunize or shield an employee from punishment for cause. Metals Engineering Co., 148 NLRB 88, 90; Mitchell Transport, Inc., 152 NLRB 122, 123, affirmed sub nom. Hawkins v. N.L.R.B., 358 F.2d 281, 283-284 (C.A. 7). In my opinion Emerson Electric Co., 185 NLRB No. 71, does not compel a finding that Cochran was not engaged in protected activity. For in Emerson the employees who left their work stations to accompany a grieving employee held no office in the union and were not otherwise entitled or authorized to represent the union in grievance matters. But in the instant case Cochran was called upon by King to act as an official union representative. As such representative Cochran was engaging in activity fostered by the Act and the collective-bargaining contract between Respondent and the Union. Socony Mobile Oil Company, 153 NLRB 1244, 1247, 357 F.2d 661 (C.A. 2). On the afternoon of October 16, 1969, Gerlach, Jr., dis- charged Cochran for presenting written grievances to him. Respondent's evidence not consonant with this finding is not credited. I find this violates Section 8(a)(1) and (3) of the Act. Notwithstanding that Gerlach used the phrase "you're not working this afternoon," I find that Cochran was discharged, and that, contrary to Respondent's contention, she did not "abandon" her job. This conclusion is based on the entire record and the following subsidiary facts which I find: (a) When Cochran confronted Gerlach, Sr., with the lan- guage of Gerlach, Jr., and asked Gerlach, Sr., what to do, Gerlach, Sr., instructed her to, go home "and draw unem- ployment." It is reasonable to infer-and I do so-that his interpretation of Gerlach, Sr., refers to a permanent sever- ance of Cochran from her job. This is because unemployment compensation is not payable for an afternoon but rather only for termination from work for at least a prescribed period of a minimum number of weeks. It would have been a simple matter to inform Cochran to return the next morning if Coch- ran had been suspended for the afternoon only. Yet Gerlach, Sr., refrained from saying so. It is true that Gerlach, Sr., also implied that Cochran had not been fired, but he did not expressly say so. Hence it became incumbent upon Respond- ent, in view of the ambiguity of the language used by Gerlach, Sr., to make clear that Cochran was suspended only for the afternoon. Although Cochran insulted Gerlach, Sr., during this con- versation by telling him he did not know how to run a busi- ness, I expressly find that she was not discharged for uttering these words. (b) Later that afternoon Cochran telephoned Respondent's secretary, Stephens, as to whether Gerlach wanted Cochran to report to work the next day. It is significant that Stephens replied in the negative after consulting with Gerlach. Patently this reply points to the conclusion that Cochran had not been suspended for the previous afternoon only. And I find that it was reasonable on the part of Cochran, in view of said answer by Stephens, to tell Stephens that thereafter Cochran could be reached by telephone at her home when Respondent needed her. It was not necessary that Cochran constantly keep calling Respondent to ascertain when, if ever, she would be rehired. On this branch of the case I credit Cochran and do not credit that part of the testimony of Stephens inconsist- ent therewith. (c) Nor did Cochran "abandon" her job. Nothing in the evidence which I credit points to this conclusion. Not only (1) did she fail to mention any such attitude as indicative of her construction of the phrase to "go home ... and draw unem- ployment," but (2) at no time did Respondent notify her that it construed her absence from work as an abandonment of work. The Board has held that failure to show up for work does not amount to abandoning a job absent (a) evidence of intent to quit, or (b) notice to the employee that the employer no longer regards him as an employee. Roylyn, Inc., 178 NLRB No. 33. (d) Finally, I find that Cochran was a union representative at the time she presented the written grievances to Gerlach, Jr., that Respondent (for the reasons as delineated above in connection with her suspension) had knowledge that Gerlach was a union representative, and that her discharge under the circumstances contravenes Section 8(a)(1) and (3) of the Act. Cf Eastern Illinois Gas and Security Company, 175 NLRB No. 108. 2. As to the suspension and discharge of Dehla Mulford On October 12, 1969, Mulford was suspended for engag- ing, on October 10, in activity protected by the Act, i.e., representing employee King in Mulford's capacity as chair- lady of the Union. I find this suspension contravenes Section 8(a)(1) and (3) of the Act. In this connection I credit the General Counsel's evidence and do not credit Respondent's evidence insofar as it clashes with that of the General Coun- sel. And I find that Respondent's contention that Mulford was suspended for leaving her job without permission is a pretext to mask the true reason. The above findings are based on the entire record and the following subsidiary facts, which I hereby find. (a) For the reasons set forth above in finding that Coch- ran's suspension was unlawful I find that Mulford's suspen- sion was unlawful and that it violates Section 8(a)(1) and (3) of the Act. Those reasons are hereby incorporated by refer- ence and need not be repeated verbatim (b) As in the case of Cochran, I find that Respondent had knowledge that Mulford represented the Union, i.e, as chair- lady. But I find an additional reason existed in Mulford's case whereby Respondent was cognizant of her representative capacity This additional reason is recited in the next two paragraphs. These two paragraphs summarize pertinent tes- timony adduced by Respondent at the trial of this case. About October 10, Mrs Gerlach, Respondent's production manager, invited employee King to talk to Mr. Gerlach, Sr., about King's behavior which was disappioved of by Mrs. Gerlach. Thereupon King requested Mulford to accompany King to the office. However, Mrs Gerlach di- rected Mulford not to leave her work station, insisting to Mulford that this matter was "not a grievance." At the trial Mrs Gerlach testified she "did not consider this a union matter." I find that the language used by Mrs. Gerlach to- wards Mulford reasonably connotes that the former was aware of the latter's capacity as a union representative. By referring to grievances and union matters in forbidding Mul- ford to come with King, Mrs. Gerlach must have known that Mulford was the Union's representative on grievances and union matters. Otherwise there was no occasion to mention these subjects if Mrs Gerlach believed that Mulford was invited to come merely as another employee without repre- sentative status When Mulford and King arrived at the office, Gerlach, Sr., told Mulford she had no business being there because "it wasn't a grievance." It is reasonable to infer-and I do so- that Gerlach would not have mentioned a grievance unless he QUALITY MANUFACTURING CO 209 had knowledge that Mulford was a union representative on matters relating to grievances. On October 16, 1969, Mulford was discharged for engaging in protected activity, i.e., representing, in her capacity as union chairlady, employee King. This discharge violates Sec- tion 8(a)(1) and (3) of the Act, and I so find. I further find that Respondent's defense that Mulford abandoned her job is a pretext to cover up the true reason. This ultimate finding is based on the entire record and the ensuing subsidiary facts which I hereby find: (a) Respondent had no express rule against leaving a work station without permission. Even if it had such a rule it was superseded as to union representatives protecting the interest of employees not only by the Act but also by the contract between Respondent and the Union. (b) Respondent had knowledge that Mulford was the Un- ion's chairlady, as more fully set forth above. (c) Respondent entertained antiunion hostility and also committed other unfair labor practices. This conduct has probative value in ascertaining the actual reason for Mul- ford's discharge. (d) Mulford was active in the union movement and also was an experienced employee with several years of service for Respondent. (e) It is sufficient to find the discharge illegal that Mulford's protected activity was a substantial or motivating reason be- hind her discharge. Such activity need not be the only reason. Hence it is immaterial that legal cause may have existed also for her discharge, since I find that Mulford's protected ac- tivity was a substantial or motivating reason for her dis- charge. (f) Mulford did not abandon her job. This is because I find that she did not intend to quit and that at no time did she inform or apprise Respondent that she was relinquishing or surrendering her job. As found above, I find that Mulford was discharged. This finding in part is derived from the fact, which I find, that Gerlach, Sr., discharged Mulford but used language describ- ing such discharge as "abandoning" the job. Yet at no time did Mulford abandon her employment, and I so find. The facts surrounding such incident are narrated in the next para- graph. On October 16, 1969, Mulford accompanied employee King to the office to represent King when the latter wanted to know "what was going to happen to King." Mrs. Gerlach, however, instructed King to see Mr. Gerlach alone without Mulford. But King was reluctant to see Mr. Gerlach unless Mulford was also present. This caused Mr. Gerlach to say to King that if King went out the door without seeing him alone she "was finished." But Mulford decided to remain with King. In view of this Mulford asked Mr. Gerlach if he wanted her to go to work. He replied "No. You've abandoned your job. You're finished." On this issue I accept Mulford's version of the incident and do not credit Respondent's evidence inso- far as it is contrary to Mulford's testimony. Hence I find that, notwithstanding the language used by Gerlach, Mulford (1) was discharged and (2) did not abandon her job. 3. As to the discharge of Catherine King King did not testify because of illness. Since her absence is satisfactorily explained, no adverse inference can be drawn from her failure to appear. And I find that the record has been adequately developed to render a finding whether her dis- charge was lawful. Cf. American Grinding & Machine Co., 150 NLRB 1357, 1358-59. I am persuaded, and find, that King was discharged, con- trary to the provisions of Section 8(a)(1) of the Act, for engaging in protected activity, and that she did not abandon her job as argued by Respondent. I credit the General Coun- sel's evidence on this branch of the case and do not credit Respondent's evidence to the extent it is inconsistent there- with. This ultimate finding is based on the entire record in this case and the following subsidiary facts, which I hereby find: (a) Respondent desired to speak to King concerning King's behavior on the job. While the nature of such talk with King is not clearly disclosed in the record, I find that it at least included King's (1) operating her radio in a loud manner at work, and (2) causing a disturbance among employees. And I find that such talk was not investigative in nature because Mrs. Gerlach personally observed King's alleged derelictions on the job and needed no further inquiry to ascertain the facts. Hence Texaco, Inc., 179 NLRB No. 157, is not control- ling on this phase of the case. Further, I find that such talk, regardless of whether actual disciplinary measures are im- posed thereat, is so intimately connected with working condi- tions that, under the contract, King was entitled to be repre- sented by a representative of the Union during the course thereof. (See article XXIII, section 1, of the contract between Respondent and the Union. Charging Party's Exhibit 1.) The Act also conferred such a right upon her. (b) Since Respondent invited King a few times and at least once ordered her to come to the office, I find that, in going to the office at Respondent's request or command, King did not leave her work station without permission. (c) Further, I find that King could properly refuse to speak to management without being accompanied by a union repre- sentative, and that King's refusing to speak to management in the absence of such representative cannot be characterized as insubordination or other misconduct warranting her dis- charge. Actually, King was suspended after the first time she refused to speak to management alone, so that thereafter she appeared with a union representative at the office as a sus- pended employee. Patently she left no work station on those occasions when she called at the office during the suspension period. (d) On October 16, 1969, King went to the office with Union Respresentatives Cochran and Mulford. Soon Coch- ran left to go to work. At this point Gerlach, Sr., asked to speak to King alone, but King denied this request. Thereupon Gerlach told King that if King "went out the door" she was "finished." Shortly thereafter King went out the door, i.e., left the plant. Since King was still on suspension at the time she could not report to work, and thus was compelled to go out the door when she decided not to speak to Gerlach alone. This constitutes a discharge of King and I so find. That this constitutes a discharge of, and not an abandon- ment of her job by, King may be deduced from the fact, which I find, that Gerlach, Sr., offered King an ultimatum permit- ting but two unacceptable alternatives. These two choices are: either speak to Gerlach, Sr., without a union representative being present, or leave the office in which case King was "finished." When an employee is thus confronted with two impossible solutions, one of which he is required to adopt, the fact that she refused to accept one of them does not mean that she acquiesced in the other. Since King was not compelled to forego the presence of her union representative, she could not be said to have voluntarily elected to be "finished" by leaving the plant after it became patent that she could no longer remain there without such representative. It follows, and I find, that by leaving the plant King was involuntarily ter- minated or discharged, and that, if she was "finished," it was not of her own choosing. Cf. Roylyn, Inc., 178 NLRB No. 33. Hence she was "finished" by command of Gerlach, Sr. This 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitutes a discharge, and I so find. Wilder Finishing Co., 138 NLRB 1017, 1019-20. 4. As to threats of reprisals About October 10, 1969, while employee Della Mulford was discussing piece rates with Gerlach , Jr., the latter told her that if she "did not like it the way it was there in the company to go elsewhere." This is not a threat to take reprisals against Mulford for engaging in union or other protected activity, and I so find. Later that day Mulford accompanied employee King on a grievance of King's. Both Mrs. Gerlach and Ger- lach, Sr., to whom Mulford spoke on this occasion , warned Mulford that Mulford had left her work station without per- mission and that she was endangering her job by remaining there without permission . Neither is this a threat of reprisal as it merely directed Mulford not to leave her work station during work hours unless excused properly therefrom. The fact that both Gerlachs misinterpreted the Act and the collec- tive-bargaining contract, i.e., that union representation law- fully did not need employer permission to prosecute griev- ances, did not convert this warning into a threat to take reprisals. On October 15, Gerlach, Sr., told Mulford, in connection with the latter's espousal of King's grievance, to mind her own business , and that Mulford was going to get "into trou- ble" for not minding her own business. In my opinion the word "trouble" is too ambiguous to connote a threat that Mulford was jeopardizing her job. Hence I find that this utterance by Gerlach , Sr., does not invade any rights safe- guarded to employees by the Act. As found above Gerlach, Sr., refused employee King the right to be accompanied by a union representative when Ger- lach desired to speak to King alone. I have found above that either a reprimand or greater discipline could have been im- posed upon King at the time . And I have found that King was entitled to be so represented . The complaint alleges that the foregoing conduct constitutes a violation of Section 8(a)(1) and (5) of the Act. Nevertheless I find only that it contravenes Section 8(a)(1) in that it denies an employee the right to engage in a protected activity . But I find it does not transgress Section 8(a)(5), as Respondent in no way is failing or refusing to recognize or bargain with the Union. About January 12, 1970, employee Alice Hoschar asked Gerlach, Jr., why employee Mary Goodnight's job was taken from her and assigned to Maxine Warner, who had less se- niority than Goodnight. Insisting that this was a prerogative of management, Gerlach, Jr., advised Goodnight not to come off the floor with a girl during working hours. Later that day Gerlach, Jr., informed Goodnight that he had suspended Mulford for coming off the floor with King. As found above, it is an implied condition of employment that employees may not leave their work stations during working hours (except for restroom visits, emergencies, and authorized breaks) without permission. Cf. Emerson Electric Co., 185 NLRB No. 71. But, as found above, this condition does not apply to union representatives engaged in protected activity. Hence I find that, since Hoschar is the president of the Union's local, she could not lawfully be prevented from leaving her work station on this matter which concerned the Union. But I find no threat of reprisal was uttered when Gerlach, Jr., first talked to her. At most, he told Hoschar not to leave her job without permission. Patently this statement is void of containing anything resembling a threat . And the fact that he much later told Hoschar that he suspended Mul- ford for coming off the floor with King merely amounts to a reference to a past event and cannot , in my opinion , be con- sidered as part of the earlier conversation with Hoschar. Hence I find no violation of the Act in the second of these two conversations of Gerlach, Jr., with Hoschar. 5. As to the layoffs of October 1969 Upon the entire record I find that paragraph 13 of the complaint has not been established by a fair preponderance of the evidence . This paragraph accuses Respondent of shut- ting down its plant and laying off employees in the bargaining unit, from about October 29 to November 10, 1969, to dis- courage (a) union membership or activities, or (b) protected activity, or both. While it is true, and I find, that the plant did shut down and employees were laid off during some of this period, I find that such action was not prompted by discriminatory motives. Rather , I find that said action was necessitated solely by reason of economic or business consid- erations. In this connection, I expressly find that said business con- siderations included an inability to obtain proper cloth for new patterns, so that Respondent was compelled to curtail operations temporarily until such cloth was finally shipped to it. On this issue I credit Respondent's evidence. In particular I am impressed with the testimony of Paul Marcus, whom I credit, that through no fault of Respondent that piece goods, or cloth, for the new styles did not become available on time, so that layoffs became imperative until such cloth was deliv- ered It is true, and I find, that floorlady Helen Rice , told em- ployees Oliver and Hoschar, in laying them off, "I don't know when we'll call you back . Until this mess gets straightened up I just don't know." But the word "mess," especially when used in a context of "running out of work , " does not neces- sarily infer union trouble; it may well allude to the production difficulties incurred when defective cloth had been delivered to Respondent by Mission Valley Mills of Brownsville , Texas. Since the word "mess" is ambiguous, I find that on this record the General Counsel has not shown that it connotes union trouble . Indeed no union trouble existed at the time when Oliver and Hoschar, as well as several other employees, were laid off in late October 1969. In attempting to demonstrate that the layoff was unlawful, the Union has emphasized the fact that the finishing opera- tors were recalled to work before the sewing employees. But I accept Respondent's explanation that some finishing work is performed before all sewing operations have been com- pleted In any event, it has not been established that the finishers were nonunion, so that nonumion employees re- ceived preference in being recalled following the layoff. It follows, and I find, that the order of recalling employees, under the circumstances , fails to disclose that the layoff itself was motivated by antiunion considerations . Hence I find dis- tinguishable Columbia Casuals, Inc., 174 NLRB No. 13, upon which the Union relies. On this issue I have not overlooked Gerlach, Jr.'s, state- ment to Union Representative Goolst on about November 19, 1969, that Gerlach, Jr., "did not want the work until this union thing gets straightened out." Although I find that such statement was uttered, I nevertheless find that it is insufficient to establish that the layoff of late October 1969 was called for antiunion reasons. This is because Gerlach, Jr., was not refer- ring to a layoff which had already occurred, but, rather, was adverting to a hypothetical situation which might transpire in the future . While this depicts antiunion animus on the part of Gerlach, Jr., it fails to denote that a layoff which took place a couple of weeks before this had been inspired by a desire to hurt the Union. Also, I find that on about October 20, 1969, Gerlach, Sr., told Union Representative Elizabeth Wiley that he did not desire to discuss the three dischargees above described, or QUALITY MANUFACTURING CO 211 "any other damn union problem," or else he would close the plant. Patently this discloses a pronounced antipathy to the Union. But it is inadequate to prove that a layoff which became necessary several days later was prompted by antiun- ion factors. In this connection, I consider it of some import that Gerlach, Jr., on November 13, 1969, told Mrs. Wiley, a union official, that he would close the plant if Respondent was forced to take back the three dischargees mentioned above. In my opinion this shows that Gerlach, Sr., as well as Ger- lach, Jr , were not contemplating a layoff to combat unionism but, instead, considered a layoff only as a last resort to pre- vent reinstating the three discharged employees. Finally, it is significant that no top official of Respondent informed a single employee that the layoff was intended to discourage adherence to or interest in the Union. This in itself is not conclusive But it is inconsistent with an alleged intent to frustrate unionism by a layoff. Intended messages must be identified as such. But an uncommunicated intent to embar- rass a union by calling an unnecessary layoff will not accom- plish such an end Manifestly employees can neither read an employer's mind nor fathom his unexpressed ulterior mo- tives; and the employer's failure to disclose the purpose be- hind a layoff cannot be said to reveal the reason which gene- rated it. Hence it is reasonable to believe that somehow the employer would have led the employees to know that the layoff was an act of reprisal against the Union if the layoff were directed towards the Union But in the instant case such evidence is lacking. Failure to make known this purpose de- tracts from the contention that the aim of the layoff was to hurt the Union. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY As Respondent has been found to have engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take specific affirmative action, as set forth below, designed to effectuate the policies of the Act. In view of the finding that Respondent discriminated against Mulford and Cochran in suspending them, and against Mulford, Cochran, and King in discharging them, it will be recommended that Respondent be ordered to offer to each immediate and full reinstatement to her former position or, if such is not available, one which is substantially equiva- lent thereto, without prejudice to their seniority and other rights and privileges. It will further be recommended that Mulford, Cochran, and King be made whole for any loss of earnings suffered by reason of the discrimination against them. In making Mulford, Cochran, and King whole Respondent shall pay to each a sum of money equal to that which each would have earned as wages from the date of her layoff to the date of reinstatement or a proper offer of reinstatement, as the case may be, less her net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner established by F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated by the formula set forth in Isis Plumbing & Heating Co, 138 NLRB 716 It will also be recommended that Respondent preserve and make available to the Board or its agents, upon reasona- ble request, all pertinent records and data necessary to aid in analyzing and determining whatever backpay may be due. Finally, it will be recommended that Respondent post appro- priate notices. The discriminatory discharges go "to the very heart of the Act." N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (CA. 4); L. E Johnson Products, Inc., 179 NLRB No. 10, fn. 1. Accordingly, the Board's Order should be broad enough to prevent further infraction of the Act in any manner; and I so recommend. Cf. R & R Screen Engrav- ing, Inc., 151 NLRB 1579, 1587; A-Z Mfg. & Sales, 177 NLRB No. 98, fn. 1. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following- CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2 Respondent is an employer within the meaning of Sec- tion 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By discriminating in regard to the tenure of employment of Mulford, Cochran, and King, thereby discouraging mem- bership in the Union, a labor organization, and activities protected by the Act, Respondent has engaged in unfair labor practices condemned by Section 8(a)(3) and (1) of the Act. 4. By refusing an employee the right to be represented by a union representative when Respondent seeks to question such employee concerning his own alleged misconduct in the course of his duties, Respondent has engaged in unfair labor practices prohibited by Section 8(a)(3) and (1) of the Act. 5. The foregoing unfair labor practices affect commerce within the purview of Section 2(6) and (7) of the Act 6. Respondent has not committed any other unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER Respondent, its officers, agents, successors, and assigns, shall: 1 Cease and desist from: (a) Discouraging membership in the Union, or any other labor organization, and discouraging activities protected by the Act, by suspending or discharging employees or other- wise discriminating in any manner in respect to their tenure of employment or any term of condition of employment. (b) Refusing any employee permission to be represented by a labor organization when Respondent seeks to question such employee concerning his own alleged misconduct in the course of his duties (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectu- ate the policies of the Act: (a) Offer Catherine King, Delila Mulford, and Martha J. Cochran immediate and full reinstatement each to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed by her, and make each whole for any loss of pay she may have suffered, with interest at the rate of 6 percent, by reason of Respondent's discrimina- tion (including also suspension of Mulford and Cochran) against her, as provided in the section above entitled "The Remedy." 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify said Catherine King, Delila Mulford, and Mar- tha J. Cochran, if presently serving in the Armed Forces of the United States, each of her right to reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon reasonable request, make available to the Board or its agents, for examination and copying, all payroll records and reports and all other records necessary to ascertain the amount, if any, of backpay due under the terms of this Recommended Order. (d) Post at its plant at Point Pleasant, West Virginia, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 9, after being signed by a duly authorized representative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily displayed. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.' IT IS FURTHER RECOMMENDED that the complaint be dis- missed insofar as it alleges unfair labor practices not found herein. ' In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of said Rules and Regulations, be adopted by the Board and become its findings , conclusions, and Order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an order of The National Labor Relations Board " ' In the event this recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director in writ- ing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith "