Kellwood Co.

KELLWOOD CO., SPENCER DIV. 1033 Kellwood Company, Spencer Division and Upper South Department, International Ladies Garment Workers Union, AFL-CIO. Case 9-CA-6838 April 10, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 13, 1972, Administrative Law Judge Josephine Klein issued the attached Decision in this proceeding. Thereafter, the Respondent and the Charging Party filed exceptions and supporting briefs, the General Counsel filed limited exceptions and a supporting brief, and the Respondent filed an answering brief to the exceptions and briefs of the General Counsel and Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt her recommended Order. ORDER dent) on April 19, 1972, alleging that on specified occasions between October 30, 1971, and mid-January 1972 Respondent interfered with its employees' exercise of rights guaranteed by Section 7 of the Act, t in violation of Section 8(a)(1), and on February 11, 1972, discriminatorily discharged employee Mildred Saunders, in violation of Section 8(a)(3) and (1).2 Upon due notice, a trial was conducted before me in Spencer, West Virginia, on July 11, 1972. All parties were afforded full opportunity to be heard, to present written and oral evidence, and to examine and cross-examine witnesses. The parties waived oral argument and the hearing briefs have been since submitted by the General Counsel and Respondent. Upon the entire record, observation of the witnesses, and consideration of the briefs, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS A. Respondent, a Delaware corporation, is engaged in the manufacture of wearing apparel at a manufacturing plant in Spencer, West Virginia, the only facility' involved herein. During the past 12 months, a representative period, Respondent, in the course of its business, sold and shipped goods and merchandise valued in excess of $50,000 from its Spencer, West Virginia, plant directly to customers outside West Virginia. Respondent is, and was at all times material herein, an employer engaged in commerce as defined in Section 2(2), (6), and (7) of the Act. B. The Union is, and was at all times material herein, a labor organization as defined in Section 2(5) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Kellwood Company, Spencer Division, its officers, agents, successors and assigns, Spencer, West Virginia, shall take the action set forth in the said recommended Order. I The General Counsel and the Charging Party except to the Administra- tive Law Judge's conclusion that 6 or 7 months had elapsed between Saunders' initial union activity and discharge on February 1 l,'1972. Based upon record testimony not specifically mentioned by the Judge, it appears that Saunders may have been in contact with the Union in late August or early September 1971, before her mid-October activity described by the Judge. DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charge filed by . Upper South Department, International Ladies Garment Workers Union, AFL-CIO (the Union) on February 22, 1972, a complaint was issued against Kellwood Company, Spencer Division (Respon- ' National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151 el seq.). 2 By amendment made at the outset of the hearing on the General II. THE UNFAIR LABOR PRACTICES A. Background and Chronology Around the middle of October 1971, employee Mildred Saunders telephoned the AFL-CIO office in Charleston, West Virginia, for information and assistance in union organization of the employees at Respondent's Spencer plant. A few days thereafter, Mario Marcello, West Virginia state director of the Union, telephoned Saunders and an initial organizing meeting was,arranged. That meeting, attended by Marcello, Saunders, and four other employees, was held at Saunders' home on or about October 17. Marcello said that, because a prior attempt to organize the plant had been fruitless, the Union would take no present action unless substantial employee interest was demonstrated by the execution of union authorization cards. The employees present at the meeting all signed cards and took blank cards for distribution and solicita- tion. Saunders solicited around 10 employees in person and mailed some 50 cards to other employees. There is no evidence concerning the success of her solicitation. Union meetings were then held around the middle of November, December, and January in the administration building of the 4-H recreation area, about 10 miles outside of Spencer. Counsel's motion, allegations of an additional violation of Sec. 8(a)(1) and another discriminatory discharge were deleted from the complaint. 202 NLRB No. 155 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It does not appear that a representation petition was ever filed or that any demand was made for recognition. Employee Saunders was discharged on February 11, 1972, the latest date involved herein. B. Violations of Section 8(a)(1) Employee Joyce Anderson was hired on October 18, 1971. On November 1, she, along with some four.or five other new employees, attended an orientation meeting held by Personnel Manager William P. Patton, Jr. Anderson testified that in the course of the meeting, after explaining such matters as the Company's insurance and retirement plans, Patton "told us that there wasn't a union at the plant and that if someone should ask us to sign a union card that we should take the. card without signing it and bring it to him or Phil Moore, our supervisor." On questioning by Respondent's counsel, Anderson specifically denied that Patton had been reading from any document or paper when he made the statement about union cards. Patton, who had been plant personnel manager for 3 1/2 years, testified that on November 1 he followed his established practice in conducting indoctrination meetings with new employees. According to Patton, Respondent has two versions of a statement concerning unions: one applicable where no organizing campaign is in process, and one for use when, as here, the new employee meeting is held during a union organizing campaign. The latter statement, which Patton testified he read on November 1, states that the Company views itself and its employees as "a working family-a team," relying on "mutual trust and confidence" for success of the enterprise. Because of this attitude, Respondent believes that a union "would be an unnecessary expense" to the employees. The prepared position statement proceeds, in part: Because, as a company, we will strive to maintain this atmosphere of teamwork and cooperation, there should never be any reason for the jobs of our employees to come under union jurisdiction. This is why we urge you never to sign a union authorization card. If any one ever approaches you and asks you to sign such a card, you are free to tell us about it. We.certainly would want to see that you have all the facts, for we believe that none of our employees will ever sign a union card when they have all the facts. One important fact about those cards, which I want to tell you now, is that there have been many cases in recent years where unions have gotten into the plants after they obtained signed cards from a majority of the employees. Many times employees will sign cards not knowing this fact and other facts, just to get the union off their back. This is why we urge you never to sign a union card. Remember, you did not have to belong to a union to get you[r] job here, and you don't have to join one to keep it. Keep your hard earned money for yourself and your family. 1 The cases cited by Respondent do not, as Respondent maintains, support the validity of Patton's prepared statement. Neither Patio Foods, Inc., 168 NLRB 305, nor N.L.R.B. v. Hobart Bros. Co., 372 F.2d 203 (C.A. 6), involved employer action in which warnings not to sign union cards were accompanied by solicitation of information concerning union activities. There is little doubt that at the meeting on November 1, Patton in general followed the prescribed outline for such meetings. However, with a group of only five employees present, he appears, naturally and reasonably, to have maintained a more friendly and informal atmosphere than would have prevailed had he read a prepared text. Having been personnel manager for some years, he undoubtedly had conducted many such meetings and was thus so familiar with the material that he did not need to read the prepared message verbatim. The written statement is obviously drafted with precision, with the aim of soliciting information from individual employees concerning union activities while remaining literally or technically within the outer limits of permissible free speech. In short, the statement as written is an example of "brinkmanship." Wausau Steel Corp., 160 NLRB 635, 639, enfd. 377 F.2d 369 (C.A. 7); Aerovox Corp. of Myrtle Beach, S.C, 172 NLRB 1011, enfd. 435 F.2d 1208 (C.A. 4). On all the evidence, including careful observation of the demeanor of the witnesses, I credit Anderson's testimony and find that Patton stepped over the brink, thus unlawfully soliciting the employees to provide information concerning union activities within the plant. Bank of St. Louis, 191 NLRB No. 119, enfd, 456 F.2d 1234 (C.A. 8). Further, in the total context, Patton's "urging" new employees "never to sign a union card" was an implied threat of reprisals for union activities. Accordingly, it is found that Respondent violated Section 8(a)(1) by Patton's statements to new employees on November 1, 1971. Even if I were to credit Patton's testimony that he read the prepared statement verbatim, I should find a violation. In my opinion, the statement as written appears calculated to elicit information which Respondent was not at liberty to solicit expressly. The employees would reasonably construe a statement that they were "free to tell [manage- ment] about" union solicitation as a request that they do so. Employee rights cannot realistically be made to turn on the necessity of sophisticated and minute analysis of precise words, dissociated from the surrounding circum- stances.3 It should be noted that Respondent's tactics were apparently successful, since, according to Patton, employ- ees did provide information concerning union solicitation as early as October. The complaint alleges unlawful surveillance of union meetings held in December 1971 and January 1972. On a Saturday in December, a union meeting for male employees was scheduled at the administration building of the 4-H facility, a recreational area some 10 mile outside of Spencer. It was a cold, dismal day, with rain threatening. Before the scheduled start of the meeting, employee Mildred Saunders, accompanied by her son and daughter- in-law, went to the area to secure the key to open the administration building and to make sure it would be heated. When Saunders arrived at the premises, she saw Jack Miller, supervisor of Respondent's finishing depart- ment, sitting in a vehicle about 15 feet away from the Respondent's interest in learning of individual union solicitations, expressed at a front-office meeting. adds a coloration against which its urging employees not to sign union cards amounts to something more than advice not to sign cards without fully investigating the implications. KELLWOOD CO., SPENCER DIV. 1035 entrance to the administration building. Saunders testified that when Miller saw her he slid down in the seat of his car and hid his head under a newspaper. - Miller testified that at the time in question he was at the 4-H recreation area to enable his 13-year-old son to ride a minibike, an activity prohibited on the public highways of Spencer but allowed on the 4-H grounds. Miller testified that while he was sitting in his car, a Kellwood employee approached him to inquire where a Christmas tree could be purchased. A second employee appeared on the scene. The first employee thereupon left Miller to consult the second employee on the Christmas tree matter. According to Miller, six or eight other Kellwood employees drove into the park, circled the administration building, and then drove out of the premises. Shortly thereafter, because it was starting to rain, Miller started to leave the premises with his son. At that time, the six or eight employees who had driven through before returned, parked their cars near the administration building, and entered the building. Except for the Saunders group and the other Kellwood employees who arrived to attend the meeting, Miller and his son were the only people in the recreation area at the time involved. Another union meeting was held at the 4-H recreation area on a Saturday or Sunday in January 1972. Again it was a dismal cold day. Saunders and approximately six other employees went to the. meeting. Because of the low attendance, at about 3:45 p.m. Saunders left the building, entered her car, and drove to the nearest available telephone, which was about 3 miles away, in an attempt to increase the attendance at the meeting. Upon reentering the 4-H grounds around 4:30 p.m., while driving toward the exit from the grounds, Saunders saw her supervisor, Helen Whited, supervisor of the sewing department, sitting in a Volkswagen. with her daughter and 4-year-old grandson. The Whited vehicle was parked in the driveway of the caretaker's house, which is located just off the blacktop road on the 4-H grounds. The blacktop road is the only means of access to the grounds and the administration building. As Saunders was later driving toward Spencer at the close of the meeting, she passed Whited's car, which was then beading away from Spencer in the direction of the 4-H grounds. Whited testified that on the day in question she, accompanied by her daughter and grandson, had gone out to do some shopping. After shopping a short while in Spencer, they went to the 4-H grounds in Grandeeville. They drove through the 4-H grounds twice, with Whited noticing two or three cars parked near the administration building. On the way out, they stopped the car so that the 4-year-old boy could relieve himself on the side road by the caretaker's house. Thereafter, they started back toward Spencer and home. En route Whited and her daughter began to talk about clothes, whereupon they decided to visit a fabric shop which they had previously passed on their way back from the 4-H grounds. They thereupon turned around and drove back to the shop, but found it had closed for the day by the time they got there. It was while they were on the way to the fabric shop that they passed Saunders as she was returning to Spencer after the union meeting. It would be a most extraordinary coincidence for supervisors simply to happen to be at the 4-H grounds on cold dreary Saturday or Sunday afternoons at precisely the time union meetings were being held. On both occasions, the supervisors were the only people present other than those attending the union meetings. There is no reason to doubt Miller's testimony that he had brought his son along and the son was riding his minibike. Nor is there any reason to question Whited's testimony that her daughter and grandson were with her and that they had done some shopping before going to the area. However, it is difficult to believe that the motivation of the trips was recreational. The 4-H grounds are apparently much frequented for picnicking, sports, and similar outdoor activities. Both Miller and Whited both visit the premises for such purposes from time to time . According to Whited, the location is beautiful just to drive through. However, the entire surrounding countryside has considerable beauty. It seems rather unlikely that one would choose such a spot simply to drive through as a means of entertaining a 4- year-old boy on a cold and gloomy day. Respondent argues that no finding of violation can be made in connection with these two incidents because there is lacking any evidence of union animus or of knowledge of the scheduled meetings on the part of Respondent. However, there is ample record evidence on which animus and knowledge can be found. The text of the prepared statement which Patton testified he reads to each new employee, as quoted above, manifests both Respondent's "opposition to unionization of its operations" (Jewell Smokeless Coal Corp., 175 NLRB 57, 60) and its interest in keeping informed of union activities among its employees so that it may have the opportunity to counter them. In addition, union animus is reflected in a series of past unfair labor practices by Respondent and affiliates. Kellwood Co., Ottenheimer Bros. Mfg. Div., 170 NLRB 1638, enfd. 411 F.2d 493 (C.A. 8); Kellwood Co., 175 NLRB, 559, enfd. 427 F.2d 1170 (C.A. 9); Kellwood Co., Ottenheimer Div., 178 NLRB 20, enfd. in part 434 F.2d 1069 (C.A. 8), cert.'denied 401 U.S. 1009; Hawthorn Co., Div. of Kellwood Co., 166 NLRB 251, enfd. in part 404 F.2d 1205 (C.A. 8); Greenfield Mfg. Co., & Division of Kellwood Co., 199 NLRB No. 122. See also Kellwood Co., Southern Div., 170 NLRB 1625, enforcement denied 406 F.2d 1063 (C.A. 6). Patton testified that he knew of the union organizing activities as early as October, when some employees gave management authorization cards and provided informa- tion as to the identity of the employees soliciting such authorizations. It is reasonable to assume that employees who volunteered such information would be equally inclined to keep management 'advised of subsequent organizational activities, including the scheduling of union meetings. As set forth in more detail below, Respondent's evidence establishes that on or about November 22, 1971, employee Carolyn Callow dramatically complained to management about Saunders' allegedly persistent solicitation on behalf of the Union. It is certainly reasonable to assume that Callow would inform management of the continuing course of the union organizational campaign. While no 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD written notices of the union meetings were issued, they were widely publicized by word of mouth. Callow undoubtedly knew of their being scheduled and passed her information on. Knowledge and motivation, being subjective facts, can rarely be established by direct evidence. Instead, they must usually be determined on the basis of circumstantial evidence and inferences from objective facts. On all the evidence, including careful observation of the demeanor of the witnesses, I discredit Miller's and Whited's testimony that their visits to the 4-H premises in December and January, respectively, were unrelated to the union meetings being held there. I find that, as alleged in the complaint, Respondent engaged in unlawful surveillance of the union meetings in December and January, thus violating Section 8(a)(1) of the Act. C. Discrimination Against Employee Saunders 1. Invocation of company rule against visiting There is no question that Saunders initiated the union organizing campaign around the middle of October. She also actively solicited other employees to sign union authorization cards. Among the persons she solicited was Carolyn Callow, who worked at the same operation as Saunders did. According to Saunders, Callow's initial reaction was, favorable to the Union. On the morning of November 22, 1971, Saunders was called to the management office. On the way back to her work station, she stopped at Callow's machine. Saunders' version of her conversation with Callow was as follows: Well, I asked her-different times I asked her to sign a union card and she talked very favorable that she would. So I had heard she had been in the office the, Friday before and I asked her, I said "Carolyn, don't you think it's about time you signed that little card now that we've been asking you to before you're replaced with older employees"? . .. [4] She said "No, I don't." She said "I talked to somebody over the weekend that knows more about this than you do." I said, "Well, if you talked to somebody that knows more about it than a union representative does, then you've talked to the right person." ... She said that at least she had talked to somebody that would keep them off of her back. Shortly after the conversation, Callow put her head on her machine and started to cry. She then left the department with the service employee and Supervisor Whited. Then Saunders, upset and suffering a headache and backache, went to the nurse's office to obtain a pain pill. In the nurse's office, she saw Callow lying on a cot with Patton and Cottle standing beside her. About half an hour after returning to her machine, Saunders was called into Cottle's office. Cottle said that an employee had "reported [Saunders] for stopping at her machine and upsetting her." Saunders apparently did not deny the accusation. She asked who had reported her. Although Cottle would not reply, Saunders apparently knew the answer to her question. Cottle said, "He was going to write [Saunders] up for it and if it ever happened again [Saunders] would be terminated." The "corrective interview" report filed by Cottle at the time described Saunders' misconduct as follows: Violation of plant rules and regulations number 26. "Visiting fellow employees while they are working" and causing a disturbance in production by upsetting an employee who had to report to the dispensary. The report further said that Saunders had been warned that she would be terminated "if this disturbance occurs again." Later that, day Saunders was again summoned to Cottle's office and informed that henceforth she was not to leave her work to go to the nurse's office without first notifying her supervisor. The General Counsel maintains that the invocation of plant rule 26 and the imposition of a new requirement that Saunders notify her supervisor before going to the nurse's office were discriminatory action against Saunders for her activity on behalf of the Union. In support of the contention, the General Counsel refers to undisputed testimony that employees frequently visited among them- selves without objection by. management and that for some time Saunders been visiting the nurse's office for pain pills several times a day without having to obtain permission or notify her supervisor. The General Counsel's argument ignores the fact that, so far as appears, the employees' visiting among themselves had never before so disturbed an employee as to disrupt production. Respondent appears to have been indulgent to the employees generally, and to Saunders in particular, up to that time. However, it seems reasonable that such indulgence would be curtained if it led to an encounter such as Respondent maintains occurred between Saunders and Callow. The mere fact that the incident resulted from Saunders' having discussed the Union with Callow is insufficient in itself to establish that Respondent's discipli- nary action was directed against, and designed to discour- age, her union activities. The one fact raising substantial question as to the propriety and motivation for Respondent's conduct is Callow's unexplained failure to testify at the hearing. Callow's version of the episode is presented only in the form of self-serving hearsay by Cottle and Patton, management representatives. I can ascribe absolutely no weight to their hearsay testimony as to what Callow allegedly reported concerning her discussion with Saun- ders. Since Callow's complaint was the basis of Respon- dent's disciplinary action against Saunders, one would reasonably expect Respondent to produce Callow as a witness. Her unexplained failure to testify, therefore, warrants the inference that her testimony would be adverse to Respondent. In the absence of testimony by Callow, Saunders' version of the verbal exchange is uncontradicted and credited. As described by Saunders, the conversation was hardly such as to warrant Callow's very emotional reaction.5 There is 4 The reference is to a warning given to the six side-seam operators Callow. Cottle testified: "Carolyn Callow ... went to the nurse. She and concerning their low productivity. Helen [Whited ] and the nurse called me in, being the department head. We 5 Even Cottle's hearsay version reflects considerable overreaction by went into my office. Carolyn was very hysterical, crying, said `Mildred, KELLWOOD CO., SPENCER DIV. no evidence that the exchange was attended by overt anger. It appears likely that the person Callow said she had "talked to ... over the weekend," who "knows more about this" than Saunders does, was a management representative. It also seems probable that Callow, having become convinced that unionization was not in the best interests of the employees and/or the employer, agreed to keep management advised of further union activities. Such willingness to cooperate with management might well have been influenced, to a greater or lesser degree, by the fact that Callow, along with other side-seam operators, had just been warned that she was in danger of being replaced if her productivity did not improve. This view would serve to explain both her apparent overreaction to Saunders' visit and Respondent's failure to produce her as a witness at the hearing, where she would be subject to cross-examination concerning the background and setting of the event and her prior contacts with management representatives. If the facts were as above suggested, the Callow incident would be seen as a staged event seized upon as a pretext for discriminatorily disciplining Saunders for her union activi- ties. The difficulty, however, is that the foregoing analysis is really in the nature of conjecture or speculation. Although I have drawn the inference that Callow's testimony would have been adverse to Respondent, such negative inference is insufficient to establish affirmatively that Saunders was reprimanded for her union activities rather than for having unduly disturbed a fellow employee. Accordingly, while entertaining considerable suspicion about the incident, I find that the General Counsel has not established by a preponderance of the competent evidence that, as alleged in the complaint, Saunders was the target of unlawful discrimination on or about November 22, 1971. 2. Discharge Saunders had been employed by Respondent for about 8 1 /2 years. During her entire career, she had worked as a side-seam machine operator, although she had acquired some experience in other operations. Machine operators are paid on a piecework or "pro- duction" basis. For the period here involved, the norm, or required standard, was that an employee produce enough at piecework rates to earn an average of at least $2.05 per hour. At least in recent years Saunders had been plagued by illness. Respondent's records show the following extended leaves of absence for illness: January through June 1966 (with 3 weeks during that period apparently charged to layoff for lack of work); January through June 19, 1967; January through March and 4 1/2 weeks in May and June 1968; mid-October 1968 to around mid-January 1969; 2 everytime she went by her into the restroom or got up and and came by her would say "Hurry up and sign your card. We haven't received your card. We need you to sign the card. You said you would.' " And she said she was was fed up with it and wanted Mildred to be kept away from her. . . . After that I went to Bill Patton , talked to him and wrote up another corrective interview on the Rule 26 being broken on harrassment and disturbing other employees while they were working." Cottle did not indicate, as Saunders 1037 weeks in June 1969; mid-November 1970 through the third week of April. 1971.6 The extended sick leaves in 1966 and 1970-71 were for surgery for a back condition. Saunders maintained that she returned to work prematurely in April 1971 because Respondent limits sick leave to 6 months. According to Saunders, after her 1966 illness, the working relationship between her and Cottle, her depart- ment manager, began to deteriorate. Saunders further testified that upon her return to work in April 1971, following her second back operation, Cottle became increasingly harsh to her. He continually spoke to her about her failure to meet her production standard. Cottle testified that early in July 1971 he spoke to the six side-seam operators, collectively, about their low pro- ductivity. According to Cottle,there was an ensuing increase in productivity by the "majority of the side-seam people" but Saunders' production did not improve. During the third week of July, Saunders was out of work for the surgical removal of a tumor from her shoulder. After her return, Cottle again spoke to her about productivity. Saunders testified that Cottle then warned her that she would be discharged if she were thereafter to be absent because of illness for a full workweek. Respon- dent introduced into evidence a "Corrective Interview (Notice of Warnings Given for Violations)" prepared by Cottle and dated July 30, 1971. The report states that the interview was conducted because of Saunders' "excessive absenteeism" and "not making production." Although the report does not report the specific warning to which Saunders testified, it does set forth Cottle' s recommenda- tion that she be given a final warning. Cottle testified that Saunders' productivity improved for about 2 weeks but then reverted to a very low level. On several occasions in 1971, apparently after her second back operation, Saunders asked Cottle about the possibili- ty of her being transferred to another job which would entail less bending and lifting than the side-seam opera- tion. On October 29, 1971 (the precise date being established by a corrective interview form executed by Cottle), Cottle again interviewed Saunders concerning her failure to meet production standards. According to Cottle's report, Saun- ders referred to Cottle's having previously promised her a job transfer. According to his report, Cottle could not specifically recall having made such a promise, but at that time gave Saunders a week to think it over and decide if she really wanted a transfer, despite Cottle's opinion "that because of the fact that Mildred knows this operation-production--quality-machines-and others, she should stay on this operation , (seam-side on banlon)." Early in November 1971, in response to her renewed request, Cottle offered her a transfer to the operation of setting plackets. After discussing the matter with Cottle and Whited, Saunders rejected the proffered transfer because setting plackets was as physically taxing as side- did, that Patton also spoke to Callow in the dispensary. Patton did not testify concerning the incident. I credit Saunders' testimony. 6 In addition, Saunders was apparently absent a considerable amount of time on personal business, including 2 1/2 weeks in May 1969, almost the entire month of November 1969, 2 weeks in August 1970, and 3 1/2 weeks in October and November, 1970. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seams and the placket-setting job would probably last only a few months. Later in November 1971, the company nurse suggested that Saunders secure a doctor's statement in support of her need for a physically easier job. Saunders then presented to Respondent a doctor's statement, reading: Mrs. Mildred Saunders had disc surgery performed by me in January, 1971. She has been rechecked periodically in the office since hospital discharge. If there is some job where she would be under less pressure, such as a timework job, available, I would recommend that she be moved to this. She gave this statement to the company nurse around November 22 (the same day as the Callow incident).? The nurse passed the doctor's statement on to William Patton, Respondent's personnel director. Patton then spoke to the doctor, who said Saunders, should not have a job entailing excessive bending or lifting. In answer to Saunders' subsequent inquiry, Patton said that there was no alterna- tive job then available. Saunders suggested that she be given a job as a utility operator or as a trainer, both of which positions are paid on a time rather than a piecework basis. Patton said that he would confer with Plant Manager William Moore to see if an appropriate job might be available in the future. Around December 20 Saunders asked Moore about a transfer. Moore said there were no utility operator or trainer jobs available. When Saunders then suggested that, as an alternative, she be transferred to operating another type of machine, Moore replied that it would not be fair to allow her, in effect, to displace another employee. Moore said that, if she worked to the best of her ability, he might be able to give her another job in about 2 months. On February 11, however, she was summoned to the office and there discharged, assertedly for her consistent failure to meet production standards. At that time Saunders remind- ed Moore that he had previously "promised" her a transfer. Moore replied that the work he had anticipated when he spoke to her in December had not materialized. Undisput- ed evidence establishes that during the period here involved, at least during the latter half of 1971, the banlon department, in which Saunders worked, was very busy, but other departments were not, with many employees on layoff. The General Counsel contends that Saunders' record of low production was simply used by Respondent as a pretext for ridding itself of the instigator of the union organizational campaign. In support of this conclusion, the General Counsel relies primarily on the fact that Respon- dent had borne with Saunders' low productivity, as the result of physical disability, for some years before she embarked upon her union activities, and the alleged fact I Monday, November 22, 1971, was a busy day for Saunders. Upon arriving at work, she took her doctor's statement to the nurse. Shortly thereafter, she, and another side-seam operator who, like Saunders, had been absent on Friday, November 19, were called to Cottle's office and warned that they would be replaced if their production did not improve. On the way back to her machine, she stopped to talk to Callow. After Callow left the department, Saunders went to the dispensary to get pain pills. After returning to her machine, Saunders was again called to Cottle's office and reprimanded for the Callow incident. Thereafter, Saunders went to the nurse's room to check on the status of her doctor's statement. At lunchtime, she spoke to Patton concerning that matter. Sometime later she was recalled that in the period immediately preceding her discharge Saunders had exerted great effort and her productivity had shown some improvement. In defense, Respondent contends, inter alia, that there is no showing that Respondent knew of Saunders' role in the union campaign and no evidence of union animus on the part of Respondent. Both these contentions must be rejected. There is no doubt that Saunders initiated the campaign. She made the initial contact with the Union and the original meeting was held at her home. She also was primarily responsible for the arrangements for subsequent meetings and had been seen doing so by Supervisors Miller and Whited. She also solicited union authorization cards from other employees. Also, as set forth above, Patton testified that in October some employees had informed him of the solicitation of union cards and the identity of the solicitors. Although he did not specifically testify as to the employees who had been so identified, there can be little doubt that Saunders, as the ringleader, must have been named .8 Further, Saunders' union activities were revealed to management by the Callow incident, which occurred some 2 1/2 months before the discharge. And, as previously found, there is ample evidence of Respondent's union animus. But Respondent' s union ' animus and knowledge of Saunders' union activities are not in themselves sufficient to establish that her discharge was discriminatorily motivated. The record leaves no doubt that Saunders' production was consistently substantially below the prescribed stand- ard. According to Respondent's records, between Septem- ber 1970 and her discharge on February 12, 1972, Saunders met the prescribed $2.05-per-hour standard in only 2 weeks-one in October 1970 and the first week of August 1971. After the side-seam operators were warned, in November, that.they would be replaced if they did not improve, Saunders' production showed no immediate improvement, her average hourly earnings remaining at about $1.80 until the weeks ending January 15 and 22, when they reached $2.00 and $2.03, respectively. The departmental average hourly earnings were $2.50 and $2.61 in these 2 weeks. Saunders' earnings then started to decline again, descending to $1.94, $1.78, and $1.86 in the weeks ending January 29, and February 5, and 12, respectively. During this period, the first 6 weeks of 1972, the departmental average hourly earnings at piece-rate work show a generally increasing trend. There can be little doubt that Saunders' performance was sufficiently unsatisfactory to justify discharge. At the General Counsel contends, it is often a suspicious circumstance that an employer who has tolerated an unsatisfactory employee for a considerable period of time finds the worker no longer employable after he has become to Cottle's office and told that henceforth she was not to leave her machine to go to the dispensary without first reporting to her supervisor. Still later on November 22, Saunders was called to the nurse's office , where she was informed of complaints by other employees of a personal problem on Saunders' part. 8 There is no evidentiary support for the statement in Respondent's brief "that several other employees ... were equally active on behalf of the union ." In any event , failure to discharge other union activists would not be decisive as to the reason for Saunders' discharge. N.L.R.B. v. Nabors Co., 196 F.2d 276 (C.A. 5), cert. denied 344 U.S. 865. KELLWOOD CO., SPENCER DIV. 1039 active on behalf of a union. However, such a sequence of events is not necessarily conclusive. In the present case, long before Saunders made contact with the Union she had been the subject of reprimands and warnings, both written and oral, concerning her admitted substandard productivity. Respondent, through Depart- ment Manager Cottle, had revealed that Respondent was reaching the limit of its patience and indulgence. Virtually decisive against the General Counsel's contention is Saunders' own testimony that she first called a union because she knew her job was in jeopardy. Her initial contact with a union was a direct reaction to Cottle's warning that she would be terminated if she were absent for 5 consecutive working days because of illness. To be sure, her eventual discharge was not directly pursuant to that specific warning. But, as Saunders maintained, her low productivity and her poor health were interrelated. Respondent had for a considerable time made known its great concern for productivity. Despite repeated warnings, Saunders' production remained low. The threat of dis- charge antedated and led to the union activities. On all the evidence, it cannot be found that Saunders' discharge, some 6 to 7 months after she initiated the union campaign, was motivated by her having taken such action. Accordingly, it will be recommended that the complaint be dismissed insofar as it alleges that Saunders was discrimi- natorily discharged because of her union activities. CONCLUSIONS OF LAW 1. By coercively interrogating employees concerning their union activities and inviting employees to report on the union activities of other employees; by coercively warning employees not to sign union authorization cards; and by engaging in surveillance over its employees' attendance at union meetings, Respondent has interfered with, restrained, and coerced employees in their exercise of rights guaranteed in the Act and has thereby committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. It has not been shown that Respondent has engaged in any other unfair labor practices other than those found in paragraph I above. 1. Cease and desist from: . (a) Coercively interrogating its employees concerning their adherence to, or activities on behalf of, Upper Southern Department, International Ladies Garment Workers Union, AFL-CIO, or any other labor organiza- tion, and inviting its employees to report on such union adherence or activities of other employees; coercively warning its employees not to sign authorization cards on behalf of Upper South Department, International Ladies Garment Workers Union, AFL-CIO, or any other labor organization ; conducting or maintaining surveillance over the union activities of any employees. (b) In any like or related manner interfering with, restraining, or coercing employees in their exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its plant in Spencer, West Virginia,-copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 9, after being signed by a 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 posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Order, what steps Respondent has taken to comply herewith. The complaint is hereby dismissed insofar as it alleges unfair labor practices other than those specifically found herein. 9 In the event no exceptions are filed as provided by Sec. 102 .46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 15 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend the issuance of a cease-and-desist order and the imposition of a notice-posting requirement in accordance with the established and usual practice in such cases. Upon the basis of the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Kellwood Company, Spencer Division, its officers, agents, successors , and assigns, shall: NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been found that we violated the law and we have been told to post this notice about what we are committed to do. The Act give all employees rights: To organize themselves To form, join, or help unions To bargain as a group through a representative of their own choosing 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To act together for collective bargaining or other mutual aid or protection To refuse to do any or all these things. We assure all of our employees that: WE WILL NOT do anything that interferes with these rights. WE WILL NOT unlawfully question any employees concerning their membership in, activities on behalf of, or sympathies for Upper South Department, Interna- tional Ladies Garment Workers Union, AFL-CIO, or any other union, or concerning the union membership, activities, or sympathies of other employees; and WE WILL NOT request that employees report to us concern- ing any such membership, activities , or sympathies. WE WILL NOT conduct surveillance of union meet- ings or other union activities. WE WILL NOT coercively warn employees not to sign union cards and we will not . expressly or impliedly threaten them with reprisals if they do so. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to join or assist- Upper South Department, International Ladies Garment Workers Union, AFL-CIO, or any other labor organi- zation, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. Dated By KELLWOOD COMPANY, SPENCER DIVISION (Employer) (Representative) (Title) This is 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 concern- ing 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.