Ridgely Manufacturing Co.

RIDGLEY MANUFACTURING CO. 83 Ridgely Manufacturing Company and Amalgamated Clothing Workers of America, AFL-CIO, Case 26-CA-4169 November 8, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Act. Respondent, in its answer, denies the commission of the alleged unfair labor practices. The case was tried in Tiptonville, Tennessee, on October 24 and 25, 1972, and adjourned for the purpose of enabling the General Counsel to seek and secure enforcement against Respondent in the United States District Court of a subpena. Thereafter, compliance with the subpena having been ordered by the aforesaid court, the instant trial was resumed and concluded at Dyersburg, Tennessee, on February 27 and 28, 1973. On May 29, 1973, Administrative Law Judge Ramey Donovan issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions, and General Counsel -filed a brief in answer to Respondent's exceptions and in support of the Administrative Law Judge's Decision. 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER 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 Respondent, Ridgely Manufactur- ing Company, Ridgely, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 In addition to the evidence relied on by the Administrative Law Judge to support the finding that Respondent violated Sec. 8(a)(3) and (1) of the Act by terminating Marcene Fussell, the record reveals that, on the next workday following the election, Supervisor Chapman approached her and stated that "if you make one little mistake you are gone r DECISION RAMEY DoNovAN, Administrative Law Judge: The Amalgamated Clothing Workers of America, AFL-CIO, herein the Union, filed a charge and an amended charge against Ridgely Manufacturing Company, Respondent, on November 18 and December 28, 1971. A complaint issued on January 7, 1972, alleging illegal threats and interroga- tion and the discharge and failure to reinstate six named employees, all in violation of Section 8(a)(l) and (3) of the 1 Mrs. Roseman is also an attorney by profession. 2 Hickman Garment Company, 172 NLRB 1168, enforced 408 F.2d 379 (C A 6, 1969) (threatening and discharging or refusing employment to employees because of union activity); Ridgely Manufacturing Company, Case 26-CA-3143, Trial Examiner (now Administrative Law Judge) Decision, November 26, 1968; Hickman Garment Company, 184 NLRB 64 (discharge and threats in order to defeat union during an election campaign), Hickman Garment Company, 184 NLRB 888 (threatening FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent, at all times material, is a corporation engaged in the manufacture of wearing apparel at its Ridgely, Tennessee, plant. In a representative 12-month period, Respondent, in the course of its business, pur- chased and received at its Ridgely, Tennessee, plant, materials and supplies valued in excess of $50,000 directly from points located outside Tennessee. In the same period, Respondent sold and shipped products valued in excess of $50,000 directly to points outside Tennessee. Respondent is an employer engaged in commerce within the meaning of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Background and Procedure Nettie Roseman is vice president and the corporate secretary of Respondent and she has been plant superin- tendent for 14 years. She is the chief operating official of Respondent and handles the, general running of the plant; plant policies; financial matters; and relations with customers. At a distance estimated to be about 35 miles from the Ridgely plant, there is another plant known as Hickman Garment Company. Phillip and Nettie Roseman are husband and wife and are the principal officers of both Ridgely and Hickman.' Both companies have been involved in litigation with the Board and both companies have been found to have violated the Act by various acts and conduct, including threatening employees regarding their union activity, interrogating employees, and discharg- ing or refusing employment to employees because of their union activities.2 On or about October 5, 1972, the General Counsel had served 'subpenas on Nettie Roseman and Olen Shelton to appear as witnesses at the commencement of the instant hearing on October 24, 1972.3 Neither witness appeared at the hearing on October 24, 1972. Weis, who represented and interrogating employees regarding union activity); both cases enforced. 437 F2d 956 (CA. 6, 1971): N L-R B v. Hickman Garment Company, 471 F.2d 611 (C.A. 6, 1972), December 18, 1972, in which the court of appeals found the Company guilty of civil contempt of the order of the court enforcing 184 NLRB 64, and 184 NLRB 888, supra 3 Shelton was plant manager from. 1969 to the end of 1971 and was supervisor of engineering at the time of the instant hearing. 207 NLRB No. 17 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent in this case and who tried the case for Respondent, simply indicated at the hearing on October 24 that he would recommend that the witness appear on the following day.4 The hearing was then adjourned until October 25, 1972. At the commencement of the hearing on October 25, counsel for the General Counsel called Nettie Roseman as a witness: MR. WEIs: Mrs. Nettie Roseman won't be available for a while. She is tied up in a conference and she said when she could come, she would be here ... . MR. BERGER [counsel for the General Counsel]: Well, your Honor, we feel that a U.S. Government subpena is very important also and Mrs. Roseman didn't appear in response to it yesterday also and we think this is very repulsive to the autonomy of this hearing and in respect to your Honor, for her to fail twice in a row to company with a subpena. JUDGE DoNovAN: I think so, too, but I think you ought to enforce the subpena in Court. Obviously Respondent doesn't pay much attention to these things MR. BERGER: We do not want to delay the hearing again unnecessarily, your Honor. We had it postponed for a full day yesterday because of lion compliance with our subpena duces tecum and ad testificandum and we have every desire to go forward with this hearing. Witness Shelton, who did appear on October 25, was then examined for 120 pages in the transcript of testimony. At the conclusion of Shelton's testimony in the afternoon, Berger called for Mrs. Roseman as a witness. Weis stated that Roseman was not present but was coming to the hearing. In response to a question, Weis stated that Respondent's plant was approximately 10 minutes away from the Court House where the hearing was being held in Tiptonville. A short recess was taken. At its conclusion, Weis announced that Roseman was present. Although Weis stated that Mrs. Roseman was vice president of the Company, he announced that he would not allow her to be called as a witness under Section 43(b) of the Rules of Civil Procedure for the United States District Courts .5 No claim was made that Mrs. Roseman was not qualified to be a 43(b) witness. Since Weis persisted in his position, the hearing was adjourned to permit the General Counsel to institute proceedings to enforce his subpenas ad testifican- dum and duces tecum. Thereafter, enforcement of the subpenas was ordered by the United States District Court and the instant case resumed on February 27, 1973. Before noon on February 28, 1973, the counsel for the General ' Counsel, having substantially completed his case in chief, stated on the record that certain documents and records subpenaed from Respondent, had not yet been produced by Respondent, notwithstanding the order of the United States District Court enforcing the subpena. Counsel for the General Counsel referred specifically to payroll sheets or records of the employees alleged in the complaint to have been discriminatorily discharged. Mr. Weis then stated: Well, it's five or ten minutes to twelve. If you want to adjourn until 1:00 o'clock, I'll be back at 1:00 o'clock with them [the records referred to ] The hearing was then adjourned to 1 p.m. At the latter time, Mr. Weis stated on the record that, despite a diligent search, the aforesaid records had not been found that he had left instructions with office personnel at the plant to continue the search and to notify him if the search was successful. Mr. Weis admitted that the payroll sheets of the alleged discriminatees were not among the documents that he had given to the General Counsel pursuant to the court enforced subpena. The General Counsel made an offer to prove that if the documents referred to were produced they would show that the payroll records of Betty Cook and Shawanne Cook bore the inscription or designation "permanent lay-off" and that no payroll records of nonalleged discriminatees bore such a designation. The General Counsel stated that although he believed the payroll sheets of three other alleged discriminatees bore the same designation, he was not prepared to make the same definitive statement regarding them as he had made with respect to the records of Betty and Shawanne Cook. I then stated, although the record incorrectly shows an interposition of Attorney Brown at this point, that As I indicated in an off the record discussion, this case has been going on at intervals since last October and I am not disposed to keep the record open for any further records, but if before the close of the hearing this afternoon, Mr. Weis, you hear from your people or call the plant and check it before closing time . . . and if they have them [the records] I will receive them into evidence, but if I close this hearing today, I am not going to keep the record open indefinitely. Subsequently, that afternoon, Mr. Weis reported that the records could still not be found. The hearing continued and was closed that afternoon on February 28, 1973. By letter of April 3, 1973, Attorney Geiger for Respon- dent, writing from his office in New York, moved to reopen the record to receive the payroll sheets of the alleged discriminatees, explaining that Mr. Weis had found these records in "the files here" "upon returning to New York" and had advised opposing counsel of the fact. The letter or motion to me, aforementioned, was accompanied by what appear to be payroll record sheets although I have not read them. Subsequently, the General Counsel filed in opposition to the granting of the aforesaid motion. Respondent's motion to reopen the record to receive certain payroll records subpenaed by the General Counsel is hereby denied. Respondent had adequate time and opportunity to produce subpenaed documents before the close of the hearing. The hearing was a protracted' one because of the necessity of securing subpena enforcement against Respondent in the Federal District Court. The hearing began in October 1972 and ended on February 28, 1973. It also appears that the documents, submitted by 4 "Mr Weis: All I can say is that it is my understanding that these 5 On the first day of the hearing, counsel for the General Counsel had witnesses are going to be available. I don't control these witnesses, if they made it clear that he was calling both Roseman and Shelton as Section don't want to come, fine. But I would say as far as I am concerned that I am 43(b) witnesses. When Shelton appeared on October 25, he was examined as going to recommend that they come. Now that's their privilege." 43(b) witness. RIDGLEY MANUFACTURING CO. 85 Respondent on April 9, 1973, with its motion, have not been properly authenticated and no stipulation of the parties regarding authenticity has been presented. Although adequate justification exists for doing so, I have found it unnecessary to draw and to rely upon any adverse inference against Respondent with respect to its conduct relating to the aforementioned payroll records or with respect to the contents of such records.6 The Section 8(a)(1) Violations The Union, had filed a petition for certification as collective-bargaining agent in May 1971. A stipulation for certification upon consent election was approved on June 28, 1971, and an election was scheduled for August 20, 1971, among the employees at the Ridgely plant. The election was thereafter held on the scheduled date. Leroy Cook had been employed by Respondent as a cutter from July 1960 to April 1972 when he quit his job. Throughout the approximately 12 years of Cook's employ- ment, the cutting department had received two pay increases a year, one at the first of the year and one in the middle of the year. In 1971, prior to the vacation in the first of July, Weis had a conversation with Cook in the cutting department.? Weis said that the July raises would be 10 cents. However, the employees did not receive the July raise in that month and Weis explained to employees that it was because the Union would not allow him to give the raise. Subsequently, the pay increase was granted in November 1971; and in January 1972, Respondent retroactively paid the employees the increase that they normally' would have received beginning in July 1971. These actions all took place after the August 1971 election. Cook's testimony is not controverted and it was also stipulated that, in accordance, with its custom and practice in past years, Respondent would have given a pay increase in its cutting department about July 12, 1971.. It is Respondent's position that it did not give the July pay increase because such act would have been in derogation of the National Labor Relations Act. The regular semiannual July pay raise was "an existing form of compensation, and a term and condition of employment regularly expected by the employees." 8 Respondent therefore was obliged to continue its normal custom and practice of granting the increase in July and this obligation could not be legitimately affected by the fact that there was a union and an impending Board election in the picture. Respondent's action in departing from its normal practice and withholding the increase and attributing this withholding of the increase to the union 6 General Counsel's motion to correct the record, being unopposed, is granted. The motion is, of course, unconnected with the matters I have been describing above 7 Weis tried the instant case on Respondent's behalf. Respondent admits that at all relevant times, including 1971-73, Weis has been an agent of Respondent. 8 General Motors Acceptance Corporation v. N.L.R B., 476 F.2d 850 (C.A. 1, 1973), enforcing 196 NLRB 137- 9 The Gates Rubber Company, 182 NLRB 95; The May Department Stores Company, d/b/a Famous Barr Company, 174 NLRB 770; Dorn's Transporta- tion Co., Inc., 168 NLRB 457. Moreover, it is more reasonable to conclude, in view of Respondent's past history of violations of the Act, that its action in withholding the increase was not due to a good-faith concern that it presence constitutes a violation of Section 8(a)(1) of the Act .9 Billy Joe Cook, a brother of Leroy Cook, had worked for Respondent in the cutting department from April 1963 to June 1972, when he quit. Cook testified that he was present at several speeches to the employees given by Weis in the plant lunchroom in the June-August 1971 period. Weis spoke about union dues and initiation fees; he spoke of plants that had closed because of the union and that many such plants had moved overseas where the work could be done more cheaply. That the foregoing was not simply an abstract commentary but was mentioned as something relevant to Respondent's situation and possible future action became clear, when Weis said, that he was not going to work under a union contract. Weis said that the Union was the reason the Company was being moved and probably would go out of business. The last-mentioned reference to possible changes in the Company's business operations is better understood if we consider some background evidence. Employee Jackson, who had worked for the Company for 8 years and quit in the middle of May 1971, testified that, in 1971, while he was still employed, Chapman, supervisor of the cutting department, spoke to Jackson and the other men in that department. This was shortly after the Union had advised the Company of the union organizing of the cutting department. Chapman advised the men that he did not know which plant Mrs. Roseman was going to close or what she was going to do. Chapman also said that Mrs. Roseman would have about 100 employees at Ridgely and about 80 at Hickman. In the context of Chapman's remark it is apparent that the low employee complements were being tied into the union organizing effort.10 Dons Cook, who had worked for the Company from 1961 to 1966 and from 1966 to August 16, 1971, testified that on August 13, 1971, a week before the election, Weis addressed employees in the plant lunchroom. Weis said that he was not going to be high pressured and he threatened to close the plant. In another speech on August 16 Weis mentioned union plants in the area that were closed or were laying off substantial numbers of employ- ees. He referred to the Hickman plant, in which the Union had been organizing, as having 270 employees last year and now had slightly more than 70. The Ridgely plant, which was having the impending election, had had 450 employees and, according to Weis, was now down to 170. The implication of Weis' remark was clear that the adverse employment statistics at Hickman and Ridgely, as well as at the union plants referred to by Weis, were attributable to the presence of the Union. might violate the Act by granting the increase in July, but was rather due to a desire to impress upon the employees that it was the union presence that forced the withholding shortly before the scheduled Board election In short, the message to the employees, a few weeks before the August election, was that your employer would have given you a wage increase in July except for the fact that a union was in the picture. 10 These figures indicated a substantial reduction in the normal employee complement since at Ridgely Respondent had a number well in excess of 200 employees. This is apparent in view of the assistant plant manager's testimony that from March 1971 to September 1971 Respondent laid off about 200 employees at Ridgely. The Hickman complement in the earlier Board decisions, supra, 184 NLRB 864, and 184 NLRB 888 was, 208 and 200 employees, respectively 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Doris Cook and other witnesses also testified that Weis told the employees that the Union and the Company had been in contract negotiations for 7 months at Hickman and had still not come to an agreement. Quite evidently this reference to the fruitless negotiations at Hickman was intended to convey to the Ridgely employees the futility of union representation. Weis might have been on more tenable grounds in making this reference to the Hickman negotiations if the Company had been bargaining in good faith at Hickman and had still not reached agreement. However, in N.LR.B. v. Hickman Garment Company, supra, the court of, appeals adjudged the Company to be in civil contempt of the court order of February 5, 1971, enforcing the Board's order, to bargain in good faith with the Union. The Company therefore was in a compounded illegal position to cite its illegal bargaining conduct at Hickman as an illustration to the Ridgely employees of the futility of union representation. I find, therefore, that the complaint allegations that Respondent, through Weis, has violated Section 8(a)(1) of the Act by speeches in August 1971, is amply supported by the evidence. Neither Weis nor any other witness of Respondent testified regarding his speeches. Uncontroverted testimony supports complaint allega- tions that-Supervisor Chapman engaged in the following coercive conduct violative of Section 8(a)(l) of the Act. On the day of the election, August 20, 1971, Chapman learned that Leroy Cook was to be a union observer at the election. He told Cook on that day, "win or lose there's no use coming back to the cutting department because you won't have a job here." Also on that day of the election, Chapman told Billy Joe Cook that Chapman had not known that Leroy Cook was to be a union observer. Chapman said that although Leroy was the best cutter he had, Leroy did not have a chance since no matter what he did he would be fired. The fact that the foregoing threats were not subsequently carried to fruition does not exculpate the illegality of the threats when made. It is also a fact' that cutters were a skilled class of employees and experienced cutters were not readily available or quickly replaced. At' or about the time employee Jackson told Chapman that he was quitting his job, in,May 1971, Chapman said that it did not make much difference because Mrs. Roseman had decided to keep him and put him in the shipping department and she had said "she was going to get Chuck or Billy Joe Cook and Leroy and said she hadn't decided yet what she was going to do with Earl Mar- kum." 11 All the foregoing persons were in the cutting department under Chapman and they had all signed union cards. Chapman had previously asked employee Todd in the cutting department if he had signed a union card and had been given a negative answer. All the other employees in the department told Chapman that they had signed cards. The day before the election, Chapman told employee Fussell and another employee in his department that he it On cross-examination by Respondent , the witness was asked: Q. You said he [Chapman ] said that they were gomg to get rid of the Cooks and keep you and transfer you into the shipping department. Is that right? A. Yeah. hoped that the Union did not get in. He interrogated Fussell as to whether she "was union or not union and I [Fussell] just said, no." Fussell actually was one of the union observers at the election on the following day. The denial of prounionism or the ambiguous answer that she had given to Chapman on the previous day, when he interrogated her about her union sentiments, is confirmato- ry of the coercive and inhibiting effect of such interroga- tion. The Terminations Doris Cook had worked for Respondent as a sewing machine operator from 1961 to 1966. In that period she worked on several different types of operations in the plant and decided to quit when she found herself being required to perform five or six different jobs at the same time. She then worked briefly in 1966 at a garment plant in Tiptonville. Weis and Mrs. Roseman contacted her at that time and asked her to return to Respondent's plant. They assured her that she could return with her former seniority and other benefits unimpaired although 2 ,or 3 months had elasped since she had left Respondent's employ. Cook then returned to Respondent in 1966 as a sewing machine operator. She worked, on darting hoods and also on sewing hoods and tunneling hoods. Her testimony that, during her approximately 10' years in Respondent's employ, she had performed 24 or 25 different operations was not contro- verted. Nor was it controverted that in 1966 she had returned to the plant after being solicited to do so by Weis and Mrs. Roseman. Such fact, coupled with her many years in Respondent's employ, and the different operations she had performed, are indicative that she was a compe- tent, versatile, and effective sewing machine operator. She had worked on civilian garments during her 1961-66 employment at Ridgely and on military garments in the 1966-71 period. At sometime in the spring of 1971, just after the Union had informed the Company that it represented - the employees in the cutting department, Cook was sitting and conversing with her brother-in-law during or at the end of a break period in the plant. Plant Manager Shelton came up and asked the two employees what they were talking about. Cook spoke up and said that they were talking about the Union and that she was for the Union. On August 16, 1971, a few minutes, before quitting time, Plant Manager Shelton `brought her check to Cook, together with a layoff slip. When she asked if it meant that she would not be called back, Shelton said "not necessari- ly" and that- she might be called back if the Company secured a lot of work. On several occasions, in November 1971, Respondent's representatives, when asked, said that the Company had no work for Cook and others with her. Respondent, by letter of February 17, 1972, offered employment to Cook. However, when she learned that she would come back as a new employee, without seniority, vacation and other rights, Cook declined. Again, by letter of January 1973, Respondent ' offered employment to RIDGLEY MANUFACTURING CO. 87 Cook. She ignored the offer because she had been promised a job by another company. Shawanne Cook was first employed by Respondent in 1963. After working for a few months, she quit and went to work in a garment plant in Tiptonville. She returned to Respondent's plant on several brief periods and then stayed for 4 years as a sewing machine operator engaged in top stitching, hemming, and other operations at the Tiptonville garment plant. In 1969 Mrs. Roseman asked Cook- to return to Respondent's plant. Cook returned and worked as an operator setting pockets, top stitching, flaps, corduroy coats, and raincoats. Cook worked on both civilian and military garments. She made production and had never been warned about her work.12 She continued working from 1969 until her termination on August 13, 1971. On August 13, 1971, Plant Manager Shelton gave her her paycheck and a termination slip. He remarked that other employees had also been laid off. Cook asked how long she would be off. Shelton advised her to call the plant at some later unspecified time. Although she did not know their names, Cook's uncontroverted testimony was that new employees had been hired prior to her layoff at a time when Cook and others were finishing work on army jackets in a military contract; and the new employees were being put to work on civilian garments. Several times after her termination, Shawanne called the plant office to inquire about work and once she went to the office and made the same inquiry. The net response to these attempts to secure work was that there was no hiring being done. The exact time of these inquiries about work is not altogether clear but evidently they occurred between her termination and November 1971 since on the occasion of her visit to the plant, Cook mentioned an item in the local newspaper that was dated November 11, 1971. The front page newspaper story was to the effect that over $61,000 in Federal funds had been approved, according to Senator Howard Baker, under the Federal job opportuni- ties program, for the Company to hire and train 44 jobless persons. The two aforementioned employees, Doris and Sha- wanne Cook, were the wives of Leroy and Billy Joe Cook, respectively. Leroy and Billy Joe were brothers. Leroy was active in the union movement. He talked to other employees about the Union, employees came to his home to discuss union matters, and Leroy secured employee signatures on union cards. Billy Joe was not as active as his brother but he did talk to others about the Union and had signed a union card, -a fact known by his supervisor, Chapman. Neither Leroy nor Billy Joe was terminated by Respon- dent and both quit their jobs. In the period after he quit, Leroy worked part time for Respondent 13 Both Leroy and Billy Joe worked in the cutting department with about three or four other male employees. Leroy was referred to by his supervisor, Chapman, as his best cutter. Since work in the cutting department is skilled and is one of the most important operations in a garment plant, this fact, together with the fact that it takes a year or more to train a cutter, can well explain the continued tenure of Leroy and Billy Joe. They were both experienced cutting department employees, having worked for Respondent for 12 and 9 years, respectively, prior to their quitting. Relevant background regarding Respondent and Leroy and Billy Joe Cook and their wives, Doris and Shawanne, is the following uncontroverted testimony regarding Supervisor Chapman.14 On August 20, 1971, when Chapman learned that Leroy was to be a union observer in the election, he told him that, win or lose, there was no use in coming back to the cutting department because Leroy would not have a job. Employ- ee Jacksonl5 testified that in May 1971, Chapman told him that Mrs. Roseman was going to get rid of Leroy and Billy Joe and Chapman said, "if I [Jackson] would watch, he would get shut of [get rid of] their wives because they worked for the Union, Billy Joe and Leroy." Billy Joe testified that in April 1971, Chapman told Leroy and himself that if they did not have a job at Goodyear [another employer in the area] they had better get one because Mrs. Roseman planned to get rid of them, and their wives "were going to get fired." In 1971, a government contract for military garments on which Respondent had been working since about 1969 was nearing completion. As the military work was being phased out, new civilian work was undertaken. There were reductions in personnel during this period for lack of work. While there was evidently a net reduction in personnel overall, a picture emerges of some employees not being laid off and some employees being laid off or terminated while new employees were being hired. Additionally, the ques- tion of who in management selected particular employees for lay off and termination and the reasons for the selection invites scrutiny -6 Mrs. Roseman testified that she was not personally involved in the decision as to which employees were to be terminated. In 1971, and at all other times, according to Roseman, the aforementioned decisions were made by Plant Manager Shelton and Assistant Plant Manager Dockery and "after they have made the decision, it comes to me [Roseman]." Shelton testified that "Mrs. Roseman did the hiring and 12 Making production in a garment plant means that an employee produces the quota of work or number of piece items specified by the employer for a particular operation and the employee is, in effect, paid an incentive rate An employee who does not make production, ie., who does not produce the specified quota, is paid an hourly rate, usually the minimum wage rate required by law. 13 In this connection, Chapman had asked Leroy if he would like to be an assistant supervisor. Such a promotion might well have removed Leroy from any alignment with the Union or with the rank-and-file unit employees 14 Chapman was not called as a witness. He was still employed by Respondent at the time of the hearing. 15 Jackson and Billy Joe Cook were the spreaders in the cutting department 16 There appears to be no real distinction between a permanent layoff and a termination. Respondent regarded the six alleged discriminatees in this case as permanently laid off and Respondent states in its brief that at the August 20, 1971, election it challenged the ballots of the six, as well as other laid off employees, on the ground that they "were permanently laid off for lack of work prior to the date of the election." 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD firing." He testified that what he referred to as the "office" and "personnel" made the decisions.17 If Shelton, who was in charge of production, needed employees he would verbally inform the office that he needed, for instance, two sewing machine operators in a certain section or operation; or, if there were too many operators in a section in view of available work, he would report that fact. Shelton stated that he was not "familiar" with "the decision" to terminate Shawanne Cook. He stated that "personnel" made that decision and then defined "personnel" as "higher manage- ment other than myself." 18 Although it is not clear what role Shelton played or did not play in the decision to terminate Doris Cook, he testified that he could not remember that she was qualified to perform any operation other than hood tunneling, which she was doing when terminated and which operation was being eliminated as the military contract was being phased out.19 Assistant plant manager, Dockery, compounds or per- haps contributed to the conflicting evidence surrounding the decisions to terminate certain employees in 1971. Dockery states that Shelton and himself, plus a relevant department supervisor, "like for instance, Bill Chapman" 20 make the decisions regarding which employees are to be terminated. Shelton testified that in August 1971, when Respondent terminated Shawanne and Doris Cook and others, that "there were some [new employees] hired, yes." He states that on the military contract, a raincoat and field jacket were being manufactured. The civilian work that came in as the military work was being phased out was an all weather car coat, ski pants, and a B-9 bomber jacket, similar to a military flight jacket or military parka. Shelton estimated that the military contract was completely eliminated by October 1971. While various sewing operations on the military items were not used on the civilian work, the various military and civilian items above mentioned, in my opinion, were not as basically dissimilar as Respondent seeks to portray them. Perhaps if the military work had consisted of steel breast plates and chain mail garments as contracted with civilian cloth apparel the difference would be apparent. The difference between a military raincoat or a military flight jacket, as compared with a civilian raincoat and a civilian jacket termed a B-9 bomber, is not the difference between black and white. The military specifications were in fact more exacting than the civilian and it is reasonable to conclude that experienced operators who had worked on both civilian and military garments in the past could make the transition to civilian work, at least better than new employees. Dockery testified that about half the force had been laid off between March and September 1971. He also stated that about 35 or 40 employees were hired in August 1971 and an equal number in September. He did not mention October but Shelton had testified that people were hired in that month. According to Dockery, November and December are bad months in the business and the 17 As far as appears, the "office" and "personnel" consisted of Mrs. Roseman; an office employee named Brenda Crittenden, and some other office people. 18 Other than Shelton, Mrs. Roseman was the highest management official in the plant. Company began hiring again in January 1972. The parties stipulated on the record that in "September 1971 through October 1972, the Company rehired many former employees and also new employees in various positions in the plant, that had been formerly occupied by the 8(a)(3)s [the alleged discriminatees] or into positions that the 8(a)(3)s, if they had not been terminated, would have normally been transferred to in the normal course of business." Dockery testified that Doris Cook could perform more than one job and during her employment she had been assigned to different jobs. He said that he and Shelton made the determination to terminate her. He was asked whether Doris "ever performed on the job of tunneling." Dockery replied, "she could have" but he stated that he believed she was setting pockets when terminated. He said Doris never made production on any job. Doris testified that her job was tunneling when she was terminated and that she regularly made production on that job. Shelton testified that he could not remember Doris performing any job other than tunneling and that she was not qualified to perform other operations. Shelton said nothing about her production in his testimony. As to Shawanne Cook, Shelton said she performed "just generally bad work," that she could not follow her guage and this affected the seams she sewed. Dockery did testify about Shawanne. Mrs. Roseman testified that Dockery and Shelton made the decision to terminate Shawanne but Shelton, as we have seen, said that the decision was made by the "office" or "personnel" and that he did not decide on a particular employee. Respondent's conflicting testimony as to who made the decisions to terminate Shawanne and Doris Cook and the varied reasons offered is not convincing. Nor has Respon- dent undertaken to explain its termination of these employees while it was hiring new employees. It is not convincing to assert, for instance, that Shawanne did generally bad work and could not perform the elementary sewing function of following a guage to sew a correct or straight seam during her years as an operator with Respondent or that Doris could not perform other jobs, when there is abundant evidence that such was not the fact. Nor does the distinction that Respondent sought to make between the ability of an experienced operator to sew military but not civilian garments carry conviction. Doris had worked for Respondent for 12 years on different jobs, military and civilian work, and in 1966 had returned to the plant at the request of Weis and Roseman after she had voluntarily quit. Shawanne had worked for Respondent in 1963 and quit; she worked for another garment plant for 4 years and in 1969 returned at Mrs. Roseman's request to work for Respondent until her termination in August 1971. She had worked on military and civilian garments. The evidence in the case in the context of Respondent's opposition to union activity and an express background statement earlier in 1971 that Shawanne and Doris, the wives of two union advocates among the employees, would be fired because of their husbands' union advocacy, fully 19 Doris Cook, as we have seen, was an experienced operator who had performed different operations in the plant from 1961 to 1966 and from 1966 to 1971. She had worked for at least 5 years on civilian garments. 20 Chapman's statements to employees have been earlier described. RIDGLEY MANUFACTURING CO. 89 warrants a finding of a violation of Section 8(a)(3) and (1) of the Act in the selection and termination of Shawanne and Doris Cook on August 13 and 16, 1971, respectively, a few days before the Board election. I so find. Ida Lou Williams Beginning in 1966, Williams worked for about 2 years for Respondent as a sewing machine operator stitching sleeves. She quit voluntarily. She returned in 1969 and worked until the middle of 1970 when she quit. During this period she was setting sleeves. At the Company's request, Williams returned to work in January 1971 and continued until she was terminated on August 17, 1971. During this last period she was a machine operator setting sleeves. Around August 2, 1971, Williams told Shelton that she was going to quit her job. Shelton asked her to defer her quitting because one of ' the other employees was to have a baby. Williams therefore continued at her job. On about August 4, Williams and her daughter, Mary Terry, also an employee, were at the end of a break period. Shelton remarked to them it was time to go back to work. Williams said that she guessed that he knew that they had been talking about the Union and she guessed that he knew that they were for the Union. Shelton made no comment. Shelton does not refer to this incident in his testimony although he testified about Williams, her work, and the fact that he had asked her to defer her quitting and that she had agreed to stay. I credit Williams regarding the foregoing conversation with Shelton about August 4. Mary Terry testified in corroboration of Williams. Some days later Shelton came to Williams in the plant and said that he could let her go now if she wished to quit. Williams replied that she had decided to continue working. Shelton then asked her if she wanted to quit and she repeated that she did not want to quit but wished to continue working. Shelton said, "Well, I already told them that you are for the Union" and he then left.' The last-mentioned remark of Shelton is not controvert- ed or denied by Shelton or by any other witness. In the context of Respondent's opposition to the Union and the impendency of the Board election, Shelton's remark indicates that he told "them," presumably Respondent's office, that Williams was for the Union because he and Respondent considered such intelligence to be important. The context also carries the clear implication that, despite the fact that Williams had informed Shelton that she did not wish to quit but to continue working, it was now too late. Shelton apparently regarded Williams' desire to continue working as being, in effect, negated and rendered futile because he had already reported that she was prounion. What other meaning Shelton's remarks could have had, I do not perceive. On August 17, 1971, Shelton told Williams that he would have to let her go and at the end of the day he gave her her check which had the word "terminated" thereon. About a week or 10 days after her termination, Williams called the plant office to ask if there was any work for her. She was told there was not. About the first of November Williams went to the plant office and was told there was no work for her. She telephoned the office a few days later and was again told there was no work for her.21 In February 1972, the Company, by letter invited Williams to return to work. Williams went to the office and, upon learning that she could return to work only as a new employee, without seniority, holiday and vacation pay and insurance, she declined to return. By letter of January 9, 1973, the Company again offered employment to Williams as a new employee. A few days later she returned to work and worked on sewing sleeves. She worked about a week, until January 19, and then quit. Williams testified that she quit because she did not feel that she "was being treated right." She stated that the job she was given was usually performed by a double needle machine but she had to use a plain stitch and perform two operations and she received the same rating as other employees who were on the double needle. On January 19, the supervisor advised her that the work she was on was being completed and on the next day she would be assigned to a felling machine which is a double needle machine. In her testimony, Williams described the felling machine as a "big old machine" on which she had once worked briefly. She decided to quit and did so.22 In my opinion, Williams quit voluntarily, in January 1973, and the evidence is insufficient to show the contrary. This conclusion, however, does not dispose of the matter of her original termination on August 17, 1971. Mrs. Roseman testified that employees were terminat- ed for lack of work but,she did not participate in the decision that a particular individual, such as Williams, would be one of those terminated. Mrs. Roseman, as we have seen, testified that -Shelton and Dockery decided upon the individuals to be terminated. Shelton testified that he did not recommend that Williams be terminated. In fact, Shelton's testimony is, in effect, that Williams quit her job in August 1971. Thus, at the hearing, Shelton was asked about Williams' termina- tion "on August 17, 1971." Shelton stated that, "two to three weeks prior to that date," Williams told him she was going to quit but he asked her to remain a little longer until a particular operation was completed. Williams, according to Shelton, told him she "would talk [think?] about it and the next day she told me she would stay and . . . . a couple of days later, she didn't come in and word was sent in that she quit."" The foregoing testimony of Shelton, if scrutinized, would place the quitting by Williams as 2 or 3 days after she had first told Shelton of her intention to quit. And she had first told Shelton, according to Shelton's testimony, of her intention to quit 2 or 3 weeks prior to August 17. However, Respondent's answer admits that Williams was terminated on August 17, 1971. Moreover, Respondent's time cards, daily production records, payroll entries, and so forth would certainly show if Williams had worked until August 17 as she testified, or whether she ceased to be on the payroll a week or two prior to that time, as Shelton's testimony would indicate. No such records appear in the 21 On these various occasions when she made inquiries about work , was surrounded by coats which, she felt, isolated her from other employees Williams also asked about work for her daughter, Mary Terry, who had She admitted , however, that the piles of coats were present before she had been terminated on August 19, 1971. started work in January. 22 In the course of her testimony Williams stated that her work station 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record. For this and other reasons, I credit Williams' testimony, as previously described. Although testifying that Williams had quit in August 1971, Shelton stated that her job of setting lining sleeves on military garments was eliminated. He testified that there was "no comparable operation [in civilian work] of setting lining sleeves, [but] there was a comparable operation of setting sleeves." In response to questions as to Williams' qualifications, Shelton denied saying that Williams was not capable of performing any job on the new civilian contracts. He was also asked: Q. She wasn't qualified to set sleeves on the new contract? A. ... I didn't say she wasn't qualified. Shelton said that he had not felt that Williams would be "a good operator" because if he had felt that she would be a good operator her job in the past would have been shell sleeves instead of lining sleeves. Shelton said there was more margin for error in lining sleeves than in shell sleeves. But Shelton admitted that there had been no problem about the quality of Williams' work. He also admitted that she made production and he does not claim that she had ever been tested on shell sleeves or setting sleeves and had been found unqualified. Prior to 1969, Williams had worked almost 2 years on civilian garments at Respon- dent's plant. Dockery testified that Williams' job ceased to exist when the military contract was phased out and, Dockery stated, he believed that this was the only job that Williams could perform. According to Dockery, there was nothing wrong with the work performed by Williams. Referring to the period after Williams' termination in August 1971, Docker- y states that Shelton had recommended that she be rehired.23 According to Dockery, Williams had a job of setting -sleeves and top stitching in 1973. There is no indication that her work was unsatisfactory and she quit of her own accord. It is apparent from the foregoing that there is a welter of conflicting contentions made by Respondent regarding the reason for Williams' termination in August 1971. Shelton would not say that she was not qualified to work on civilian contracts but by rather circuitous "reasoning" said that she was not a good operator although neither he nor Dockery found her quality of work or production to be unsatisfactory. She was allegedly terminated because the military work had been phased out, yet Williams had previously performed civilian work for Respondent for almost 2 years. Moreover, on Shelton's recommendation, she had been offered reemployment in February 1972 and in January 1973, when Respondent was performing no military work. When she returned in 1973 she performed the civilian work satisfactorily and thereafter quit voluntar- ily. What has been previously stated in connection with the conflicting evidence as to who in management selected individual employees for termination and the evidence that 23 She was offered a job as a new employee in February 1972 and in January 1973. As we have seen, she did return to Respondent's employ in January 1973 24 Aside from the fact that the testimony of Williams and Terry was uncontroverted on this aspect, the profession of union sentiments by employees may have been a reaction to at least three antiunion speeches by Respondent was hiring new employees while it was terminating old employees is also pertinent. I find that Williams was discriminatorily selected for termination on August 17, 1971, and that her termination was in violation of Section 8(a)(3) and (1) of the Act. Although she had told Shelton before her termination that she wished to continue working, he told her, in effect, that it was too late because he had already reported her pro- union sentiments to Respondent's officialdom, Respon- dent's office. Mary Terry had worked for Respondent from June 1969 to March 1970. She was a machine operator on side seaming. In the latter part of her 1970 employment she was making production. She quit her job voluntarily. She returned in December 1971 and was put on inspecting. She was promised an operator's job when a machine became available. When no machine was available after 2 weeks, she quit. Terry was rehired in January 1971 and worked until August 4, 1971, when she was laid off and terminated on August 19, 1971. Her job was sewing the side seams of sleeves on a double needle folder. Terry was present in early August 1971 when her mother, Williams, told Shelton that they had been talking about the Union and that they were both for the Union 24 Later that day, evidently Wednesday, August 4, Terry spoke to Shelton about noon. She said she was short of work and asked if she could be placed on another assignment. Shelton said she could leave early that day. Terry asked when she would be recalled. Shelton said probably Friday or Monday. Terry then left the plant. She called Shelton at a later date and asked if he had anything for her. He said, no. On August 19 Terry received her check through the mail and it was marked, final check, terminated. The lay off slip that came with the check, said, permanently laid off, lack of work. After that Terry called the plant a few times inquiring about work and her mother had also called on behalf of herself and Terry. On all these occasions, the Company said that there was no work for Terry or Williams, her mother. By mail on January 30, 1972, the Company asked Terry to return to work. She did not return or reply since she had another job. The Company again sent her a letter to return in January 1973. Terry did not respond because she was employed elsewhere. There is no doubt that on 'both of the foregoing occasions, the Company was offering Terry a job as a new employee. Mrs. Roseman testified that she did not know or recall an employee named Mary Terry. Shelton states that Terry's job of goring sleeves with a double needle machine was eliminated and she was terminated. Prior to that, Shelton states that Terry's job was joining side seam linings in the lining section. On both these jobs, Terry used a double needle machine with a closed folder attachment. Although double needle machines are used in both civilian and military work, Shelton states that there was no closed folder attachment used in a double needle machine on civilian work. Shelton also asserts that Terry was, not Respondent to the employees during this period. Sometimes certain personalities react to such speeches by, in effect, professing their own convictions to demonstrate their independence as individuals or as an expression of solidarity with union-oriented friends, fellow workers, or relatives. The Cooks, husbands, wives, and in-laws, are an example of the latter type of loyalty. RIDGLEY MANUFACTURING CO. 91 making production when she was terminated but Respon- dent offered no production or payroll records to support this assertion although Terry testified that in her last month or two she was making production. As to a double, needle machine, which Terry had operated during her employment, and a single needle machine, Respondent used both types of machines in its civilian work. Shelton admitted that it is easier to train an operator for a' single needle machine than for a double needle machine. He said that a double needle machine is "an intricate, difficult machine to learn how to operate" but once it is mastered it does not involve as many elements as a single needle machine. Assuming the foregoing, it is not apparent why Terry could not, or could not readily be trained to, operate a double needle machine without a closed folder attachment since, as Shelton states, the latter was not used on civilian work. Also, since it was easier to learn how to operate a single needle machine than a double needle machine, it is not clear why Terry, who had mastered and had worked on a double needle machine, could not be inducted into a single needle operation.25 Dockery testified that he probably participated in the decision to terminate Mary Terry. He stated his belief that she was terminated`because of "absence" but was not sure. Dockery admittedly had not spoken to Terry about any absences but he said that the girls in the office "were told to give them a pep talk about the absenteeism." This matter was not mentioned by Shelton in his testimony and Dockery offered no specifics about absence other than as described above. In the light of Respondent's hostility toward having a union in its plant and its knowledge that Mary Terry and her mother were prounion, I find that Terry's selection for termination, on August 18, 1971, during a period when Respondent was hiring new employees, was discriminatory and in violation of Section 8(a)(3) and (1) of the Act. Betty (Alice) Cook.26 This employee is the mother of Leroy and Billy Joe Cook, and the mother-in-law of Doris and Shawanne, all of whom have been referred to earlier in this Decision. She performed civilian work of sewing the shell to the linings .while employed by Respondent from 1963 to 1965. She quit her job in 1965. Cook returned to Respondent in 1968 doing top stitching. She became ill after a few weeks and quit after undergoing surgery. In 1969 Cook again was rehired by Respondent as a top stitcher and worked until her termination on August 18, 1971. On August 17, 1971, the day after Doris Cook had been terminated and 4 days after Shawanne Cook's termination, Betty spoke to Shelton in the plant. She asked him why Doris and Shawanne had been fired and was it "on account of the union." Shelton said, "no, not necessarily, we do have slack work." 27 Alice then said that she wanted him to know that she and Mary were both for the Union.28 The following day, August 18, Shelton brought her paycheck to Betty (Alice) Cook in the plant and told her she was laid off. Alice called the plant on August 28, 1971. She asked Mrs. Roseman if there was work for herself and her daughter-in-law, Doris Cook. The answer was negative. On October 6, 1971, the unemployment service sent Cook to the plant. At the plant she was told there was no job available.29 Betty Cook appeared at three unemployment compensa- tion hearings, including one on behalf of herself. The Company was opposing the payment of unemployment compensation. By letter of January 5, 1972, the Company invited Betty Cook to return to work. Cook declined the offer when she was informed that she would have to return as a new employee. On January 8, 1973, Cook received a similar letter and offer from the Company and Cook did not respond to it. In the approximately 5 years of her employment with the company Cook had received no criticism of the quality or quantity of her work and she made production. In addition to her relationship with members of her family who were union adherents and advocates, Alice Cook had signed a union card and had talked to other female employees about the Union. On August 17, 1971, when she asked Shelton why Doris and Shawanne Cook had been discharged on August 13 and 16, respectively, Alice Cook affirmed her own prounion sentiments. She was terminated the next day. Mrs. Roseman testified that Shelton and Dockery made the decision to terminate Cook and that Roseman did not participate. Shelton testified that the top stitching job that Cook was performing when she was terminated was not eliminated and was continued on the civilian work. Shelton states that he did not recommend that Cook be terminated and he does not know why she was chosen for termination. Dockery testified that when the military contract was phased out the work available, for Cook was to do repairs and, according to Dockery, "Betty didn't like to do repairs. I mean, none, of the girls do-like to do repairs." It is not explained why repair work became significant around August 19, 1971, or why it was more prevalent or important, if it was, at that particular time. Presumably Cook and others had performed repair work in the past and, according to Dockery, none of the employees liked such work. However, there is no evidence that Cook 25 In the period when Terry was terminated, Respondent was hiring new employees According to Shelton, the competency of a new employee was determined "by setting them down on a machine and observing them." The new employee was given an "observance job" which involved some simple operation like sewing a piece of canvas to a facing. Unless the new employee demonstrated complete incompetence in sewing, it would be 4 or 5 days before a decision was made as to whether or not the new employee should be taken from the observance job, a nonproduction task, and assigned to a production job. It is fairly clear that Respondent would not have been obliged to undertake the foregoing steps if it elected to reassign or give additional training or opportunity to one of its experienced operators who was being laid off or terminated for lack of work in a particular operation. 26 The name appears in the record as both "Alice" and "Betty" Cook. I am satisfied that the name refers to the one person who testified. 27 This was an ambiguous answer and can be compared to a doctor being asked whether a patient died because the surgeon made an error in the course of the operation. The doctor answers, -no, not necessarily, the patient was suffering from cancer." Such an answer is, of course, evasive. 28 Mary Jane Moore Betty's daughter, was with her' during this conversation. 29 It is not unreasonable to assume that the Company had requested the unemployment service to send applicants to the plant because the Company was admittedly hiring help during this period. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had ever refused to perform such work in the past or that she would not have accepted such work in August 1971 in preference to termination. Further, unlike Dockery, Shel- ton testified that the top stitching, which Cook was performing-when terminated, was not discontinued when the military work expired but was continued in civilian work. The selection of Alice Cook for termination, in the circumstances described hereinabove, including Respon- dent's hiring of new employees during this period, persuades me that her discharge on August 19, 1971, was in violation of Section 8(a)(3) and (1) of the Act. Marcene Fussell commenced working for the Company in January 1968 and continued until September 23, 1971, when she was terminated. Fussell worked in the numbering department and Chapman was her supervisor.30 Fussell's job was not a productionjob and I assume that this means that she did not work on a piece rate since she was being paid $1.82 per hour at the time of her termination. There would therefore be no question as to whether or not she made production. Fussell testified that her supervisor had never spoken to her about the quality of her work in the past although we shall see a reference to this aspect at the time of her discharge in September 1971. Fussell's uninterrupted employment for more than 3 1/2 years tends to indicate that she was a satisfactory employee. On August 19, 1971, the day before the Board election, Chapman, in a conversation in the plant, told Fussell that he hoped that the Union would not get in because the employees were hard to get along with as it was (even without a Union); Chapman expressed the view that the Union would not get in; and he asked Fussell if she was union or not union; Fussell responded to this interrogation rather cryptically and testified that "I just said, no." She also testified that she had not talked to other people about the Union and did not believe that anyone knew that she was for the union. Whatever "cover" Fussell had, however, on the union matter, was removed on the following day when she, together with Leroy Cook, was a union observer at the election. We have earlier seen the statements and threats uttered by Chapman when he learned on the day of the election that Leroy Cook was to be one of the union observers. It is unlikely that any milder sentiments were entertained regarding Fussell when her role was revealed. About a month after the election, on Monday, Septem- ber 20, 1971, Fussell was given the job of numbering a coat or jacket. She told Chapman that she did not know how to do the coats so Chapman had another employee, Ramsey, to show Fussell how to do the work. Ramsey took "just a few minutes" to show Fussell how to do the coats. Fussell 30 Fussell mentions another supervisor, Dorothy Cantrell, who was apparently a subordinate of Chapman's in the department. Mrs. Roseman referred to a supervisor in the department as Dorothy-and said that she could not remember Dorothy's last name. Apparently the reference was to Dorothy Cantrell. 31 Apparently the error or mistake was that the flaps had not matched the coat. The numbers correspond but they were not the right shade. In short, the different parts of a garment are numbered and if a stack of flaps is numbered Ito 20 and the fronts are numbered I to 20, when they are sewed together they match or should match. 32 McBride, a sister of Fussell , had worked in the numbering department for 3 years She had last worked in March 1969, when she quit and worked out of state. She testified that work in the numbering department had to be worked on this task from noon on the 20th, and on September 21 and 22. Shortly before quitting time on the 22d, Chapman brought some work back to Fussell and told her to line them up in order and get the numbers in order. Fussell then lined up the coats and the bundle of flaps that had been brought back to her and did this before quitting time on the 22d.31 Although the situation is not entirely clear, Fussell testified that none of the coats had been sewn together and all that was necessary to do was to realign the flaps. Fussell testified that there were five girls in the numbering department doing the same type of work, and that employee Bridges numbered the first part of this particular coat. According to Fussell, Bridges had returned to her, "got back the welts and braidings because they were shaded [a variation in matching the colors ]" and, in fact, Bridges "got back all she numbered." Fussell states that she, Fussell, did not get back any more work than the other girls. Fussell states that in the past she and the other girls did have work returned to them occasionally.32 On September 23, 1971, when Fussell came to work, her timecard was not in the timecard rack and she therefore could not punch in and go to work. As Fussell went toward the office, Chapman was coming out and he said that he guessed that she had noticed her card was not in the rack. He said that Mrs. Roseman and Todd were mad about some flaps that were shaded., Thereafter, Fussell received her separation slip and check. In November 1971, Fussell accompanied Ida Lou Williams and Doris Cook when they all went to the plant and unsuccessfully sought employment. Fussell also called the plant office around the first of December 1971 and was told that they were not hiring anyone. In February 1972, the Company by letter advised her that there was a job available for her. When she came to the plant she was told that the job available for her was on a sewing machine. Fussell said that she could not do the work of a sewing machine operator.33 She therefore declined the job for this reason and for the added reason that the Company was offering her employment only as a new employee. In January 1973 the Company offered Fussell employment as a new employee in the numbering department. Upon her return home, Fussell learned that her baby was sick and had to be taken to the doctor. She wrote the Company a letter explaining why she could not take the job and return to work at that time. This was the last contact with the Company. Mrs. Roseman was asked at the hearing, who had made the decision to terminate Fussell Roseman replied, "I imagine it was Mr. Chapman, who was her supervisor." The witness also testified that she had participated in the redone quite frequently and that she had had work returned to her when she was in that department. She states that she knew of others in the department who were also obliged to redo their work. McBride had not signed a union card and was not involved in the Union She had, in fact, not worked in the plant since 1969. McBride was rehired on September 23, 1971, in the numbering department. At the time, McBride was not aware that Fussell had been terminated on September 23 and that McBride was being hired to take Fussell's place. 33 in 1964 or 1965 Fussell had operated a sewing machine in a Tiptonville garment plant for 3 or 5 months. She had no prior experience as an operator and did not make production while working at Tiptonville She quit that job. RIDGLEY MANUFACTURING CO. 93 decision. According to Roseman, Fussell was terminated because she made "some very great errors in the number- ing department at the cost of thousands of dollars" and Roseman states "this was the second or third time she had done this, made these same errors." Roseman was asked, "what specific error did she make which was the basis for her termination?" "A. Her work wasn't good." Asked to be more specific, Roseman said that Fussell "messed up" work in the numbering department and "instead of numbering from one to twenty, she would make it from thirty to forty" and when the articles were put together the colors and shadings were wrong. Roseman was asked if she knew "what part was shaded" and she said she did not know. When asked whether Fussell had been warned about this series of errors, Roseman said "she certainly was" warned by her supervisor, Dorothy, whose last name Roseman could not remember. Roseman stated that she had "no idea" when these warnings were given but then stated that it was when the errors were made.34 Roseman stated that other employees had been discharged for similar errors but could cite no examples. Roseman stated we would have to go back on the individual records to see who had made a mistake like that [Fussell]." No such records were introduced at the hearing nor did the witness subsequently testify on this aspect. Dockery was asked: Q. Did you participate in the decision to terminate her [Fussell ]? A. That was Mrs. Roseman, I would think. A fair interpertation of the foregoing is that Dockery did not participate in the decision to terminate Fussell. Dockery went on to testify that "the only thing" he knew about the Fussell matter was that she had made "a couple of mistakes . . . close together" and as a result "some of them [the garments J7 that had been sewn together had to be taken apart by ripping out the stitches 35 When asked if Fussell had been given any warnings about making mistakes, Dockery's answer was, "Mr. Shelton would have taken care of that." In short, Dockery knew of no warnings and Shelton did not testify regarding Fussell and as far as appears was not involved in her termination. Although Mrs. Roseman testified, contrary to Dockery who said Roseman made the decision, that "I imagine that it was Mr. Chapman, who was her supervisor" who made the decision to terminate Fusser Chapman did not testify. Eventually, Dockery admits that, when supervisor Dorothy reported that she needed an employee in the numbering department, he recommended that Fussell be reemployed. So far as appears neither Roseman, Chapman, nor Dorothy objected to this recommendation, and the job was offered to Fussell. This fact is not easily reconciled with Roseman's unsupported testimony that Fussell was an employee who had been terminated after warnings and a 34 "1 have no idea. At the time the errors were made " The latter remark, in my opimon, has the appearance of conjecture or the tailoring of the testimony to fit the situation. Neither Chapman, nor Dorothy, nor any supervisor, floorlady, or employee testified about Fussell's work in the 3 1 /2 years she was in the numbering department nor did they testify from direct knowledge about her work on September 22 or at any other time that allegedly was the cause of her discharge. 35 The basis of this intelligence is not disclosed and Dockery does not series of major mistakes that cost the Company "thousands of dollars." The people who the evidence shows were in the best, if not the only, position to testify regarding specific errors or mistakes by Fussell at any time and particularly on September 22, the day before her discharge, were Chap- man, Dorothy Cantrell, and any floorlady, or employee directly involved in the alleged shading or misaligning of the flaps with the coats. None of these persons testified and Fussell's testimony is uncontroverted that she was aware of no error in numbering the flaps when Chapman, on September 22, brought back to her five bundles of coats and one bundle of flaps and told her to realign the work, which she did at the time in a relatively brief period. This was the only conversation she had with Chapman on that day. Fussell also testified that during her entire period of employment with the Company she received no warnings or reprimands. On the following day, when Fussell was discharged, Chapman said that Mrs. Roseman and Todd were "mad about the flaps" and "that was it." Todd, the only employee among the cutters and spreaders in Chapman's-department who had not signed a union card, a fact known to Chapman, was a witness for Respondent. Todd's testimony, in substance, was that he had never heard Chapman say anything untoward or threatening to the Cooks or about their wives, all union supporters, as earlier described. Todd, however, gave no testimony about the Fussell episode although for some unexplained reason he was importantly involved in the matter to the extent .that Chapman told Fussell when she was discharged (and this was the extent of the explanation for the discharge), that Mrs. Roseman and Todd-were mad about the flaps. The fact that Fussell served as a union observer at the Board election and thereby marked herself as a strong union supporter in the eyes of an employer quite clearly opposed to the unionization of this plant or its other plants over a long period does not confer on her any immunity from her employer's normal disciplinary power, including discharge. However, the record reveals that she worked for almost 4 years at one basic nonproduetion and hourly paid type of job in Respondent's numbering department without warnings or reprimands. She and all others in the department had, as the evidence reveals, made mistakes in the course of the work over the years.36 She may well have made an error or mistake on some work a day or two before her discharge and she was told to realign some coats and flaps on September 22. Precisely what the situation was is difficult to determine since the only witness with direct knowledge of the work in question, who testified, was Fussell and she testified that there was no mistake in numbering but she was given work to realign and had been told about shadings that did not match on coats and flaps. Mrs. Roseman, I am convinced, was not directly involved in the actual events on the factory floor and her clams to have been personnally involved in the Fussell episode and did not participate in the terminal decision. 36 Shelton, the plant manager during the relevant period, who spent all his time on the floor of the plant observing the work of the employees and the work flow, testified that there probably was not an employee "in the whole plant that he did not speak to about the quality of their work "at one time or another." 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD broad statements about Fussell causing damage in the thousands of dollars despite a series of warnings is not convincing. No part of her testimony about warnings and extensive damage is supported by testimony of Chapman and Dorothy Cantrell, the immediate supervisors. Mrs. Roseman testified that Chapman made the decision to terminate Fussell. Dockery testified that Mrs. Roseman made the decision. Chapman did not testify but when he notified Fussell of her discharge the only explanation he gave was that Mrs. Roseman and Todd were mad about the flaps. As previously noted, the role of Todd, a rank- and-file employee, in this matter is unexplained. Dockery, the assistant plant manager, did not participate in the discharge decision and his knowledge of the alleged cause of the discharge was, in my opinion, peripheral. Dockery subsequently recommended an offer of reemployment to Fussell in the same department and this offer was made. Neither Dockery nor Shelton participated in the discharge decision although at another point in her testimony, Mrs. Roseman had testified that terminations and layoffs of individuals was generally, if not always, decided upon by Shelton and Dockery. Upon consideration of the entire evidentiary picture, it is my opinion that Fussell would not normally have been discharged on September 23, 1971, for such error or mistake as she may have made. Such mistake or error as may have occurred, in my opinion, was used as a convenient means of eliminating a known union adherent in the course of Respondent's continuing effort to prevent unionization of its plant. A violation of Section 8(a)(3) and (1) of the Act is found.37 CONCLUSIONS OF LAW As found in the Decision, Respondent has violated Section 8(a)(1) of the Act by interrogation, threats, and coercive statements to its employees. Respondent had violated Section 8(a)(1) of the Act by withholding a wage increase from its employees because of the presence of union organizational activity. Respondent has violated Section 8(a)(3) and (1) of the Act by terminating Shawanne Cook on August 13, 1971; Doris Cook on August 16, 1971; Ida Lou Williams on August 17, 1971; Betty (Alice) Cook on August 18, 1971; Mary Terry on August 19, 1'971 ; and Marcene Fussell on September 23, 1971. THE REMEDY Having found that Respondent has violated the Act in certain respects, it will be recommended that Respondent be ordered to cease and desist from such conduct and take affirmative action to remedy the effects of its illegal conduct. The employees found to have been terminated discrimi- natorily are to be offered reinstatement to their former or substantially equivalent jobs with their seniority and all other rights and privileges that they enjoyed at the time of their terminations. The aforesaid employees are to be made whole for any loss of pay they may have incurred by reason of their terminations from the dates of their respective discharges as found in this Decision to the date of the offer of reinstatement, less any intermediate earnings they may have had, and with the computation being made on a quarterly basis and with interest at 6 percent. Since Shawanne Cook; Doris Cook; Ida Lou Williams; Betty Cook; Mary Terry; and Marcene Fussell have been found to have been discriminatorily discharged, Respon- dent's subsequent offers of employment to these employees were inadequate since the offers were of jobs as new employees without seniority, vacation and holiday, insur- ance, and other rights and benefits that they enjoyed and were entitled to prior to their terminations. ORDER Ridgely Manufacturing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Withholding normal pay increases from employees because of the presence and existence of union activity among the employees. (b) Stating that employee support and selection of a union would be futile because the Company did not intend to work under a union contract and that the Company had engaged in protracted and fruitless contract negotiations with the union at another plant. (c) Threatening employees with discharge because of union activity., (d) Interrogating employees regarding their union senti- ments or activities. (e) Discouraging union activity by discriminatorily terminating Shawanne Cook; Doris Cook; Ida Lou Williams; Betty (Alice) Cook; Mary Terry; or Marcene Fussell. (f) In any other manner interferring with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Shawanne Cook; Doris Cook; Ida Lou Williams; Betty (Alice) Cook; Mary Terry; and Marcene Fussell immediate reinstatement to their former or sub- stantially equivalent jobs, without prejudice to, and with restoration of, all their seniority and other rights and privileges. (b) Pay to the aforenamed six employees the wages they may have lost from the date of their terminations, respectively, as found in this Decision, to the date of the offer of reinstatement, described in the preceding para- graph, less any intermediate earnings, and with the entire computation being made on a quarterly basis, with interest at 6 percent on any wages found to be due. 37 After the instant complaint issued, in winch Fussell was among those and declined this limited offer. A year later, in 1973, Fussell was offered named as discruninatees, Respondent, in February 1972, offered Fussell employment in the numbering department, her former job, but as a new employment as a new employee on the job of sewing machine operator. employee Fussell informed Respondent of her lack of ability to perform such work RIDGLEY MANUFACTURING CO. 95 (c) Post, at its Ridgely Manufacturing Company plant in Tennessee, copies of the attached notice marked "Appen- dix."38 Copies of said notice on forms provided by the Regional Director, Region 26, after being signed by Respondent's representative,'shall be posted by Respon- dent 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 to ensure that such notices are not altered , defaced, or covered by other material. (d) Preserve and, upon request, make available to the Board or its agents, for examination . and copying, all records necessary to analyze the amount of backpay that may be due to Shawanne Cook; Doris Cook; Ida Lou Williams; Betty (Alice) Cook; Mary Terry; and Marcene Fussell, including payroll records, timecards, social securi- ty records and other personnel and financial records. (e) Notify the Regional Director, Region 26, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 38 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 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 participated, it has been found that we have violated the National Labor Relations Act in certain respects . To remedy these violations of the law, we advise you that: WE WILL NOT state that employee support and selection of a union as their bargaining representative will be useless or that we have negotiated with the union at our other plant for many months and had still not agreed to a contract with the Union. WE WILL NOT threaten employees with discharge because they have, or are, engaging in union activity or union support. WE WILL NOT illegally question employees as to whether they favor or do not favor having a union. WE WILL NOT discharge employees because of the union activity or union sentiments. WE WILL offer to Shawanne Cook; Doris Cook; Ida Lou Williams; Betty (Alice) Cook; Mary Terry; and Marcene Fussell immediate and full reinstatement to their former or substantially equivalent jobs, without prejudice to, and with restoration of, all their seniority and other rights and privileges. WE WILL pay to the said employees : Shawanne Cook, discharged August 13, 1971; Doris Cook, discharged , August 16, 1971; Ida Lou Williams, discharged August 17, 1971; Betty (Alice) Cook, discharged August 18, 1971 ; Mary Terry, discharged August 19, 1971; Marcene Fussell, discharged Septem- ber 23, 1971 any wages they may have lost from the dates of their respective discharges to the date of our offer of reinstatement, less any intermediate earnings they may have had and with interest at 6 percent on any wages that we may owe them. All our employees are free to join or support the Amalgamated Clothing Workers of America, AFL-CIO, or any other union, or to refrain from such activity. Dated By RIDGELY MANUFACTURING COMPANY (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, Clifford Davis Federal Building Room 746, 167 North Main Street , Memphis, Tennessee 38103, Telephone 901 534-3161.