Santee River Wool Combing Co., Inc.

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Santee River Wool Combing Company, Inc. and Textile Workers Union of America, AFL-CIO. Cases II-CA-5120, 11-CA-5130, and 11-RC- 3575 May 10, 1974 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, JENKINS, AND KENNEDY On August 21, 1973, Administrative Law Judge Arnold Ordman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and supporting briefs. 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 2 of the Administrative Law Judge and to adopt both his recommended Order and his recommendation that Respondent's objections3 to conduct affecting the results of the election held on October 12 and 13, 1972, be overruled in their entirety, and that the Board take such further action as is appropriate. We agree with our dissenting colleague and the Administrative Law Judge that "the Union promot- ed, or at least tolerated, a misconception" that employee Pringle might have been discharged unlaw- fully in violation of Section 8(a)(3) of the Act, and that the timing prevented any adequate refutation by Respondent. However, we do not agree with the dissent's view that this warrants setting aside the election. Respondent did in fact unlawfully discharge two other employees in violation of Section 8(a)(3) and engaged in other numerous and wide-ranging unlawful actions, including interrogating employees about their union activities, threatening that union activity might endanger their jobs, threatening that the plant would be closed if the Union won, and creating the impression of surveillance of union i Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) We have carefully examined the record and find no basis for reversing his findings. 2 In the absence of exceptions thereto, we adopt, pro forma, the Administrative Law Judge's conclusion that Respondent did not grant a wage increase to its employees on July 30, 1972, in order to induce them to refrain from supporting the Union, and further that employees Gwendolyn Cooper and Bertha Brunson were not discriminatorily discharged by 210 NLRB No. 77 activities. In the face of this severe and extensive unlawful conduct by Respondent, including two discriminatory discharges, our dissenting colleague argues that the Union's implied assertion that yet a third discriminatory discharge "falsely characterized the Employer as having callously discharged an employee" and thus should cause the election to be set aside. Whatever characterization of the Respon- dent might result from the false imputation to it of an unlawful discharge of Pringle (an imputation we in no way condone) that characterization had already been doubly earned by Respondent's unlawful discharges of Brown and Nesmith, and perhaps by its other violations of the Act. To conclude in these circumstances that the Pringle incident had signifi- cant or decisive impact on the electorate is to join the Bellman4 in believing that "What I tell you three times is true." Weslock, Division of Tool Research & Engineering Corporation, 199 NLRB 549, on which our dissenting colleague relies, there was no other misconduct by the employer, and the Administrative Law Judge correctly distinguished that case and overruled the objection. 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 , Santee River Wool Combing Company, Inc., Jamestown, South Caroli- na, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Textile Workers Union of America, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein5 for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. Respondent in violation of Sec. 8(aX3) of the Act. 3 In the absence of exceptions thereto, we adopt , pro forma, the Administrative Law Judge's conclusion that Respondent's Objections 1, 2, 4(a), 4(b), 4(c), 4(d), and 4(e) are without ment. 4 Carroll, "Hunting of the Snark" 5 The parties stipulated, and we find, that the following employees constitute a unit appropriate for collective bargaining within the meaning of Sec 9(c)(I) and Sec 2(6) and (7) of the Act- All production and maintenance employees employed by the Employer at its Jamestown, South Carolina , plant, but excluding all office clerical employees, professional employees, guards , and supervisors as defined in the Act. SANTEE RIVER WOOL COMBING CO ., INC. 531 MEMBER KENNEDY, dissenting in part: The Union's deliberate election eve rrusrepresenta- tion to a group of about 60 employees that the Employer had discharged an employee because of his union activities, when in fact the Union knew that the Employer had granted the employee a medical leave of absence, was so substantial a misrepresenta- tion as to warrant setting aside the election. I would sustain the Employer's objection to the election on that ground and direct that a new election be held. Employee Pringle's last day of employment at the Employer was on June 29, 1972, at which time he was granted a medical leave of absence. Later, in July or early August 1972, the Union filed an unfair labor practice charge alleging that Pringle had been terminated in violation of the Act. The Union withdrew that charge, however, in early September when it learned that Pringle had not been terminated but was on a medical leave of absence. Nevertheless, on October 11, 1972, which was the day before the election began, the Union filed a second charge making the identical allegation concerning Pnngle as set forth in the earlier charge. On the night before the election, the Union held a meeting which was attended by about 60 employees .6 At the meeting, the union representative made statements concerning the second charge which the Union had filed earlier that day in Pringle's behalf. Pringle himself also spoke at the meeting in support of the Union. The next day Pringle served as the Union's election observer and also voted in the election without challenge. The Administrative Law Judge found that, while the Union made no express statement at the October 11 meeting that Pringle had been discharged for union activity, the statements that were made "certainly lent themselves to an interpretation by the people present that such might be the case." The Administrative Law Judge also found that the Union knew at that time that Pringle actually was on a medical leave of absence. The Administrative Law Judge concluded: 7 This last minute misrepresentation not only was made so late as to deny the Employer an opportunity to reply, but also it was made to such a large number of employees on election eve that it should reason- ably be expected to have had a significant impact on the election.8 Furthermore, the misrepresentation concerned job security which is a matter of importance to all employees. The Employer was portrayed as having callously discharged employee Pringle when the Union knew that the Employer had not done so, but instead had given Pringle a medical leave of absence. In these circumstances, I would follow the princi- ple established by the Board in Weslock, Division of Tool Research & Engineering Corporation, 199 NLRB 549. In that case, the union distributed a newspaper on the day of the election and misrepresented that an employee had been "arbitarily fired" after sustaining an injury on a new piece of equipment. The union also misrepresented that the employer had refused his request for a transfer. The union stated that it had filed a charge with NLRB and provided the employee with an industrial accident attorney. The Board held: We find, contrary to the Acting Regional Director, that these misrepresentations were substantial departures from the truth made at a time when the Employer had no effective oppor- tunity to reply and thus may reasonably be expected to have had a significant impact on the election. In our view, the newspaper statements concerning Bradford falsely characterize the Employer as one who subjected an employee to the hazards of a new and unfamiliar machine and then, when the employee was injured, callously discharged him. It is reasonable to believe, and we find, that this characterization, which was conveyed in a context designed to convince the employees that the Petitioner was in possession of the facts of the matter, and which concerned the important matter of job security, must have had a significant impact on the employees causing them to adhere to Petitioner for protection. I conclude that the Union promoted, or at least tolerated, a misconception among the people at the meeting as to Pringle's true employment status and that the timing of the Union's action precluded a response by Santee [the Employer] to that situation. 6 There were approximately 269 eligible voters. 4 Notwithstanding this conclusion, the Administrative Law Judge recommended that the Employer's objection be overruled In his view, the Union's misrepresentation did not have an appreciable impact on the election in view of the intense and prolonged campaign and the fact that the Employer engaged in conduct violative of Sec 8(a)(1) and discharged two other employees in violation of Sec. 8 (a)(3). I do not agree In my opinion, it In the present case, as in Weslock, the Union's misrepresentation was a substantial departure from the truth; was made at a time so close to the election as to deny the Employer an opportunity to reply; was concerned with the important matter of job security; and falsely characterized this Employer as having is not appropriate to excuse the Union's misrepresentation concerning Pnngle by balancing it against other misconduct engaged in by the Employer. If the conduct of one party destroys the laboratory conditions of the election, it is illogical to find that additional improper conduct by the other party restores the laboratory conditions. 8 Hollywood Ceramics Company, Inc., 140 NLRB 221. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD callously discharged an employee instead of granting him a medical leave. Accordingly, I would sustain the Employer's objection and direct that a new election be held. consideration of the briefs filed by all parties in July of 1973, I make the following: FINDINGS AND CONCLUSIONS DECISION STATEMENT OF THE CASE ARNOLD ORDMAN, Administrative Law Judge: This is a consolidated proceeding heard before me in Charleston, South Carolina, on April 18, 19, May 16, 17, 18, and 22, 1973. Case I1-RC-3575 is a representation proceeding; involved therein is the validity of certain timely objections filed by Respondent-Employer, herein called Santee,' to the conduct of a Board election. The objections, in substance, allege that the Charging Party-Petitioner, herein called the Union, threatened and intimidated employees in the voting unit, made material misrepresentations, and otherwise engaged in improper electioneering, all of which precluded the holding of a fair election and rendered the results of that election, in which the Union prevailed, invalid. Cases I I-CA-5120 and 1l-CA-5130 arise from timely unfair labor practice charges filed by the Union against Santee. The consolidated complaint, dated January 31, 1973, based upon these charges and amended prior to the opening of the hearing, alleges that Santee by interrogating and threatening its employees, by creating an impression of surveillance and by granting a wage increase , unlawfully interfered with the organizational rights of its employees in violation of Section 8(aXl) of the National Labor Rela- tions Act, as amended . The complaint further alleges that Santee unlawfully discharged four of its employees, Gwendolyn Cooper, Joe Brown, Bertha Brunson, and James Nesmith, in violation of Section 8(a)(3) and (1) of the Act. Because both the representation case and the unfair labor practice proceedings involved the same parties, the Regional Director for Region 11, of the National Labor Relations Board on October 7, 1972, directed that these matters be consolidated for hearing, ruling, and decision by an Administrative Law Judge with a further directive that thereafter the representation proceeding, Case I1-RC-3575, be transferred to and continued before the Board in Washington, D.C.2 At the opening of the hearing, however , counsel agreed that although the parties were the same and the relevant conduct occurred during the salve period of time-essen- tially during an organizational campaign-the events upon which the respective representation and unfair labor practice cases were based could be considered separately. Accordingly, and also by agreement of all the parties, the evidence as to these matters was taken separately and will be separately considered hereunder. Upon the entire record in this consolidated proceeding, upon my observation of the witnesses, and after due 1. JURISDICTION Santee is a South Carolina corporation with a plant in Jamestown, South Carolina, where it is engaged in the manufacture of textiles . During the year preceding the instant proceeding, a representative period, Santee admit- tedly received at its Jamestown plant more than $50,000 worth of goods and materials from outside the State of South Carolina and admittedly shipped goods and materi- als, worth in excess of that amount, from its Jamestown plant to points outside South Carolina. The complaint alleges, the answer admits, and I find that Santee is an employer engaged in commerce within .he meaning of Section 2(6) and (7) of the Act. The complaint and answer likewise establish, and I find , that the Union is a labor organization within the meaning of Section 2(5) of the Act. Jurisdiction is properly asserted herein. II. THE UNFAIR LABOR PRACTICE PROCEEDING A. Section 8(a)(1): Interference, Restraint and Coercion 1. Interrogation and threats The organizational campaign at Santee began in June of 1972 and culminated in a Board-conducted election in October 1972. The Union's vigorous campaign to enlist the support of Santee employees was countered by a number of other Santee employees who constituted themselves as an in-plant antiunion committee and distributed antiunion leaflets . Several of these employees sought and obtained leave from Santee so that they could carry on this activity. In addition, Santee itself through its supervisory hierarchy and with advice of counsel engaged in a broad and systematized program to discourage its employees from adherence to the Union. The complaint alleges numerous instances of interroga- tion and threats directed by Santee's supervisory and management officials to Santee employees as violative of Section 8(aXl) of the Act. Santee admits that the supervisors and officials named in the complaint are its agents but denies that they engaged in unfair labor practices. A number of these instances are discussed below. Employee Bertha Brunson worked in the wool-sorting department, was an active union adherent, and served as a union observer in the October election.3 In late June or early July, toward the beginning of the union campaign, Robert Baker, supervisor in that department, summoned Brunson into his office . Brunson testified that only she and Baker were present and that the following conversation ensued. Baker asked whether she thought a union would work in the plant. She replied that she thought it would be The name of Respondent-Employer appears as corrected at the consolidated hearing. hearing. A motion by General Counsel, unopposed, to correct a minor 3 Brunson was discharged on October 30, 1972, a few weeks after the mistake in the transcript is granted . election. The legality of that discharge, alleged in the instant complaint as 2 On April 6, 1973, the Board issued a Decision and Order expanding the discriminatorily motivated , will be discussed later in this Decision. scope of the objections in the representation case to be considered at the SANTEE RIVER WOOL COMBING CO., INC. fine. When Baker asked why, Brunson said she had worked in a union shop before. Baker then asked specifically whether Brunson would like a union at Santee and Brunson responded affirmatively. When Baker stated that he had never worked in a union shop, Brunson suggested that Baker could not know what a union job was all about. Baker acknowledged meeting and talking to Brunson on this occasion but gave a different version of the conversa- tion. In this connection Baker stated that at the beginning of the organizational campaign in June, he commenced interviewing employees individually with respect to the Union's efforts to get them to sign union cards. He stated further that after a few days he found he had too many employees to interview individually and began meeting with the employees two at a time with a fellow-supervisor also in attendance. Baker testified that his meeting with Brunson was of the latter variety and that supervisor Julie Washington was present. According to Baker, Brunson became "a little bit agitated" when he and Washington discussed the Union with her, and Brunson asked him whether he had ever belonged to a union. Baker said he had not. Baker denied asking Brunson how she felt about the Union or whether she had signed a union card. He stated further that his meeting with Brunson was "just a normal meeting, discussing the signing of the cards, and the strike that she was likely to be involved in, and the riots, and so forth and so on, these things." Julie Washington testified that she was present at the conversation. She stated, as Baker did, that another employee was also present, but neither identified the other employee. Washington also could not recall the day or the month of the meeting. She recalled that all Baker did was "read the letters that the manager of the plant sent out and the pamphlets and things, and explain it to the [employ- ees]." She corroborated that Brunson asked Baker whether he ever belonged to a union but denied that Baker asked Brunson how she felt about the Union or any other question about the Union. Appraising the foregoing testimony, it is clear that Baker did talk to Brunson. Washington could recall few of the significant details except for her recollection that Baker had asked Brunson no questions concerning union matters. Baker also denied making such inquiries. Neither Baker nor Washington identified the other employee they said was present. Baker did admit, however, that he had late in June conducted individual interviews with employees. He also acknowledged that his meeting with Brunson was "just a normal meeting" including talk of "the strike she was likely to be involved in, and the riots, and so forth." Against this background and on the totality of the testimony, I find that the testimony of Brunson more credibly reflects what actually was said, and that Baker in the course of the "normal" remarks he admittedly made did interrogate Brunson as to her union attitudes and her desire to have the Union in the plant. Another instance of alleged interrogation involved employees Flint Brockington and James Nesmith-the discharge of the latter will be discussed later-and Santee supervisor Adam West. Flint Brockington testified that he attended most of the union meetings and that after almost every such meeting, West would ask how many employees 533 were going and who was there. Brockington testified that his coworker, James Nesmith, was usually present when these inquiries were made and that West would request that they not mention to anyone that he was making the inquiries. James Nesmith corroborated the testimony of Flint Brockington. West did not testify and the statements of Brockington and Nesmith are undisputed . I credit their testimony and find that Adam West did interrogate Brockington and Nesmith concerning employee attend- ance at union meetings. A third allegation in the complaint relates to a conversa- tion between Supervisors Henry Stewart and Norveree Vice on the one hand and employees Gwendolyn Cooper and Annette Green on the other. According to Cooper- -her later discharge , also alleged as an unfair labor practice, will be discussed later-this conversation oc- curred in July. All indications are that it was one of the series of meetings initiated by management in which two management officials summoned in two employees to convey management's views concerning unionization. Cooper testified that in the course of Stewart 's remarks, he informed Cooper and Green that things would be better if they would bring their problems to the Company instead of bringing in the Union. Stewart's version of his remarks was not substantially different. According to Stewart, he said, "I feel and we feel as supervisors that if she had any kind of problem whatsoever that we feel, and I feel , that she should come to the supervisors first before going out to someone else." Supervisor Vice's testimony was in substan- tial accord. I find no violation of the Act in this interchange. As Santee correctly contends , neither Cooper's version nor Stewart's version of his remarks would sustain the allegation of the complaint that Stewart uttered a threat. And it would be straining simple language to regard such a statement in the particular context as a promise of benefit. Rather, I believe and find that Stewart's comments, fairly construed, amounted to no more than a legitimate expression of opinion as to the relative advantage or disadvantage of union representation. Gwendolyn Cooper, however, testified to another con- versation with Supervisor Robert Baker, previously men- tioned, which was of a different tenor . According to Cooper only she and Baker were present at this conversa- tion which took place in Baker's office early in August. In the course of Baker's comments about the Union, Cooper testified, Baker asked her if she felt the Union could do anything for her and she replied affirmatively. Baker then continued his comments, told her he was afraid that if she kept on conducting herself with the Union she probably wouldn't have a job, asked her if she had signed a union card and how the other girls felt about the Union. According to Cooper, Baker 2 or 3 weeks later again asked her whether she had attended union meetings and she said "Yes." Cooper's discharge occurred on September 15, 1972. Baker testified that except for a single conversation with Cooper at her work station when he suggested that they discuss the company letters and pamphlets she had been receiving, he had never talked to Cooper concerning the Union, had never questioned her concerning union matters 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or threatened her with loss of her job if she continued her union activity. Santee argues that Cooper was not a credible witness either with regard to the foregoing conversations or with regard to the events relating to her later discharge. (As noted, the matter of Cooper's discharge will be discussed later.) With respect to the matter here involved, Santee argues that Baker's testimony should be credited. On the other hand, the record makes it clear that Baker vigorously carried out his instructions to propagandize the employees for the Company and against the Union, and as already related in connection with his talk with Brunson, was admittedly less than restrained in his comments about the adverse consequences of unionization including strikes, riots, and the like. In the light of these considerations, I find Cooper's account of the conversations here in issue the more credible. I find therefore that Baker did question Cooper • concerning her union sympathies and activities and those of her fellow employees and that Baker did threaten Cooper that she would probably lose her job if she continued her union activity. The next incident related here concerns an interchange between employee Gerald Fordham and Supervisor John Waddill. Fordham testified that Waddill spoke to him at Fordham's work station in mid-July 1972 and asked whether Fordham had signed a union card and whether he attended union meetings. When Fordham said "Yes" to both queries, Waddill informed Fordham, according to the latter, that the Union would do nothing for Fordham except to make him lose his job, his automobile, and his home. On cross-examination of Fordham, it appeared that he was later discharged and a stipulation was entered into that an unfair labor practice charge predicated on his termination was dismissed. Waddill confirmed that he had talked to Fordham at the latter's work station but said that it occurred in late June. According to Waddill, he did inform Fordham about the "dangers" involved in signing a union card but denied asking Fordham about any union activity or threatening him with loss of job, automobile or home. In this connection Waddill testified that early in the organization- al campaign all the salaried supervisors had been carefully briefed by a company attorney as to what they could say or do with respect to the unionization campaign and had been instructed not to interrogate or question employees and not to make threats or promises of benefits. On the other hand, Waddill acknowledged that in the latter part of the organizational campaign he and supervisor Jack Morgan would regularly have discussions with small groups of employees and would point out that in the event of a strike, employees could lose their furniture, homes, and cars, that it had happened in other places and, while not saying it would happen at Santee, it could happen. Fordham was a timid but credible witness. I reject the suggestion that his testimony was fabricated out of pique or resentment over his discharge. Indeed, supervisor Waddill corroborated Fordham's testimony in part. More- over, Waddill's candor as to the instructions he and his fellow-supervisors received as to what they could say or do and as to what they actually said or did suggests that the fine lines drawn in this area between permissible or impermissible conduct might have been too sophisticated for the Santee supervisors, untrained in the law, to observe as they carried out their instructions to propagandize the employees against unionization . Even without reference to other evidence of record, the testimony of Waddill and Baker alone persuasively indicates that the line of permissible conduct was breached. In short, and on the basis of the testimony in the record, I am satisfied and find that Waddill did question Fordham about signing a union card and attending Union meetings and that Waddill did indicate to Fordham that union activity would imperil his job, his automobile, and his home. Another incident alleged in the complaint has to do again with supervisor Robert Baker and involves employee Gladys Mae Taylor. Gladys Mae Taylor testified that during the organizational campaign, she had two conversa- tions with Baker in the course of which Baker asked her whether she had signed a union card and also asked whether she and other employees were attending union meetings. When Taylor made affirmative replies to these questions, Baker, according to Taylor, asked if Taylor knew the plant might have to close if the Union got in. On vigorous cross-examination , Taylor, who was obviously not a sophisticated witness , manifested some confusion in precisely delineating the precise sequence and content of the two separate conversations with Baker but was unequivocal as to the basic substance of Baker's remarks. Baker denied generally questioning employees about union activities and stated that he followed the company attorney's instructions, previously described, to the letter. He did admit, however, holding regular meetings with employees in which he discussed, inter alia, the subject of plant closings, a subject which was also mentioned in literature disseminated to the employees by Santee. The references were, of course, to plants other than Santee. Baker testified that he had merely informed the employees that the other plants had closed because of "added encumbrances" and stated also "although it is unlikely to happen here, I hope not" Here, again, I am satisfied and find that in the admittedly broad campaign waged by Santee among its employees to discourage their union affiliation, Baker, too crossed the fine line drawn by the Company's legal advisor. I credit Taylor's testimony and find that Baker did question her concerning union matters and suggested that unionization might result in the closing of the Santee plant as had occurred in other places. The foregoing discussion makes it plain and I find that Santee, through its agents and supervisors, engaged in a broad pattern of antiunion conduct which included interrogation and threats directed to employees to dissuade them from their organizational efforts . Examination of the pleadings and the long record in the instant case readily discloses that neither all the allegations nor all the evidence relating to alleged interrogation and threats has been here fully explored. Generally speaking, General Counsel adduced testimony in support of the allegations and Santee, which denied the allegations, proffered counter- vailing testimony. Detailed consideration of all the allegations and evidence in this regard would unduly SANTEE RIVER WOOL COMBING CO., INC. 535 enlarge this Decision, and further findings of interrogation and threats violative of Section 8(a)(l) of the Act, if made, would be purely cumulative. Moreover, such findings, if made, would not affect the scope of the relief which would be appropriate. Accordingly, I conclude that further consideration of this aspect of the case is not warranted or appropriate. On the basis of the matters already set forth, I find and conclude that Santee by interrogating and threatening its employees violated Section 8(a)(1) of the Act. 2. The wage increase Paragraph 7(e) of the complaint alleges that Santee granted a wage increase to employees on July 30, 1972, to induce them to refrain from supporting the Union. Santee denies the allegation. The issue thus presented may be quickly disposed of. The only evidence proffered by General Counsel in this regard was the testimony of Bertha Brunson that in July or August 1972, during the period the organizational cam- paign was in progress, she received a nickel raise and that a couple of years ago or longer than that she had received a dime raise. She testified further that she knew nothing about the nickel raise before she got it, and in answer to the question whether anyone told her why she got it, her reply was "Nobody didn't tell me nothing." Such a testimonial showing is obviously insufficient to support a finding that a wage increase was given to induce Brunson or other employees to refrain from engaging in union activities. Parenthetically, also it bears note that General Counsel, while not waiving any allegation of unfair labor practice made in the complaint, makes no mention of the instant allegation in his otherwise able and comprehensive brief. Moreover, testimonial and documen- tary evidence adduced at the hearing by Santee with reference to this issue indisputably establishes that the raise Brunson received in August 1972 was not a nickel an hour but a dime, that it was part of a general increase given all employees, that a similar general wage increase had been given the employees 1 year earlier when no organization campaign was current and that these increases were pursuant to a company policy initiated in 1971 to review wages and give a general increase once a year. Upon the foregoing showing, I conclude that this allegation of the complaint is not substantiated on the record. by telling them Santee knew who was attending union meetings and had a list of union adherents. Testimony in support of this allegation was given by employee Flint Brockington who stated that about a week before the election there was a meeting attended by Miklaszewski, Supervisors Waddill and Morgan, and five or six employ- ees in one of the plant lunchrooms ; that Miklaszewski told the group, among other things, that the Union was no good and would take the employees' paychecks; that he knew the employees who attended union meetings and had a list of them. Employee Nesmith also testified as to this meeting. He also stated that it took place about a week before the election; that Miklaszewski said he didn't want a union in the plant ; that all the union wanted to do was to deduct from the employees' paychecks ; that he had a list of all the employees who had signed a card; and that he had every name of the individuals attending union meetings. Nesmith said that the meeting with Miklaszewski took place in the plant TV room, and that there were a "bunch" of people there which he estimated as numbering 25 to 50 including supervisors Waddill and Morgan. Admittedly there were discrepancies in the testimony of Brockington and Nesmith as to whether the meeting in question occurred in one of the plant lunchrooms or the plant TV room and as to the number of employees in attendance. However, their testimony was consistent as to the tenor of Miklaszewski's remarks. Moreover, supervisor Waddill, testifying as a witness for Santee , confirmed that such a meeting had taken place , that he and Morgan were in attendance, and that Miklaszewski had talked about union cards and union meetings. Waddill denied, however, that Miklaszewski said he had a list of employees or knew what employees had gone to meetings. As is apparent from the foregoing, Waddill corroborated in substantial part the testimony of Brockington and Nesmith. In view of Waddill's admission that Miklaszewski did talk about union cards and union meetings, I credit the testimony of the two employees, contrary to the testimony of Waddill, that Miklaszewski did convey the impression that he knew who was attending union meetings and that he had a list of names of such employees. I find that Miklaszewski did create an impression among the employ- ees that he was exercising surveillance over the employees' union activities and sympathies and thereby interfered with their freedom to organize in violation of Section 8(a)(1) of the Act.4 3. Creating an impression of surveillance Paragraph 7(i) of the complaint alleges that Joseph Miklaszewski, Santee's president, in early October 1972 created an impression of surveillance among the employees 4 Miklaszewski was presented as a witness by counsel for Santee but was withdrawn without testifying because counsel for the Union, the charging party, indicated its intent to tape record Miklaszewski's testimony The Administrative Law Judge indicated that, notwithstanding his views in the matter, controlling precedent dictated that such tape recording would be allowed subject to tight restrictions that it not be allowed to interfere with the presentation of testimony in any way and that the official reporter's transcript would be the only official record of the testimony given. Nevertheless, Miklaszewski was withdrawn as a witness and a later offer of proof as to what he would testify to, if he had elected to testify, was rejected. B. Section 8(a)(3): The Discharges The complaint alleges that Santee discriminatorily discharged four of its employees, Gwendolyn Cooper, Joe Brown, Bertha Brunson, and James Nesmith, in violation Inasmuch as the official reporter would in any event transcribe whatever Miklaszewski testified to, the prejudice to Santee would appear to be minimal. Extensive citation of authority to validate that the ruling here was a proper exercise of discretion would be superfluous. The controlling considerations are lucidly set forth in Marriot Corporation v. N.LR.B., 417 F 2d 176, 177-178 (C.A 4, 1969) And see also Daisy's Originals Inc, of Miami, 187 NLRB 251, In. 1 (1970). Indeed, Santee in its bnef concedes that the ruling herein was dictated by "procedural precedents" but challenges the validity of those precedents. Santee's claim of prejudice is rejected. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 8(a)(3) and (1) of the Act . Santee denies that allegation. 1. Gwendolyn Cooper Gwendolyn Cooper was discharged on September 15, 1972, after some 4 years of employment at Santee. Certain relevant facts relating to the discharge are virtually undisputed. Cooper applied for a leave of absence from her job beginning August 31, 1972, and ending September 5, 1972. The application for leave was ap- proved. Cooper did not return on September 5, however. Instead Cooper's mother, Mrs. Staggers, who lived at a different address, called the plant that morning and relayed a message from Cooper that Cooper's 5-year old child was ill, and that Cooper would be out for a few days. On Friday, September 8, Cooper made a brief stop at the plant to pick up her paycheck but admittedly said nothing about her absence from work. The following Monday, September 11, Cooper came to the plant to go to work. Standard practice at Santee was for an employee who has been absent to report to the personnel office for a work permit to return to work. Cooper, aware of this practice, reported to the personnel office. She was interviewed there by Cornell McMakin, then employment manager for Santee, who, again pursuant to standard practice, asked for an explanation of her absence. The precise content of the interview is in dispute but the result was that Cooper was told to leave and return on the following day so that the matter could be looked into further. Actually, the next conference occurred on Wednesday, September 13, and this time McMakin and Supervisor Robert Baker together interviewed her as to the reason for her absence. Here, too, the precise content of the discussion is in dispute, but Cooper was told that the matter of the justification for her absence would have to be further explored and she was directed to return on Friday, September 15. At the Friday meeting Cooper was told by McMakin and Baker that they had a sworn statement from someone that Cooper s absence was for personal reasons , that her child had not been sick, and that they had no alternative but to discharge her. A discharge because of an unwarranted absence or for a false explanation for an absence is, of course, no violation of the Act, and this is so whether the facts were or were not as Santee believed them to be. Accordingly, it is General Counsel's burden, and General Counsel properly assumes that burden, to establish that the assigned reason was merely a pretext and that the real reason for the discharge was Cooper's union activity and Santa's resentment and opposition to that activity. Preliminarily, Santee challenges the proposition that Cooper was active in the Union or that it was aware of that activity. I reject that challenge. While the record does not warrant a finding that Cooper played a very active role in the organizational campaign-other employees not dis- charged played a much more active role-I am satisfied that Cooper's own sympathies were known to Santee. As previously found herein, Baker had questioned Cooper concerning the Union and had told her that continued union involvement would probably imperil her job. On the other hand, without more, this is insufficient to establish that her discharge was attributable to antiunion motivation. The fact is that Cooper was absent from work from September 5 to September 11 with no explanation other than a call from her mother that Cooper would be out for a few days because of her child's illness. Moreover, while Cooper did come to the plant on September 8 to pick up her paycheck, she admittedly said nothing to anyone about her continued absence. Under the circumstances and even apart from settled practice, it was wholly reasonable for management to inquire as to the reason for a week-long absence. As indicated, there is considerable dispute as to the precise content of the interviews between Cooper, McMa- kin, and Baker. I find it unnecessary to resolve all the differences. At minimum, it is clear that at the September 11 conference, Cooper produced a doctor's slip showing she had been to a Dr. Miller on Saturday, September 9, and that McMakin felt this was inadequate to justify her absence for several days prior thereto. There was discus- sion about a visit to a doctor the prior Tuesday,5 and arrangements were made to have a further meeting while McMakin checked into the matter. There were also discrepancies as to exactly what was said at the second meeting, but it is clear that there was further discussion about the veracity of Cooper's story about her child's illness and whether, in fact, her absence had not been attributable to personal and domestic problems . Finally, it is clear that at the final meeting on September 15 McMakin had in his possession a sworn statement from Adlean Nole, private housekeeper for President Miklasz- ewski, that she had learned from Cooper's mother, Mrs. Staggers, a close friend, that Cooper had in fact been in New York during the week of September 5. Concluding on this basis that Cooper had lied, Cooper was discharged. The testimony of the several witnesses provides room for speculation as to whether the facts were actually as stated in the Nole affidavit, whether Cooper was really in New York, and as to other aspects of this involved matter. Yet the undisputed part of the record casts no reasonable doubt that McMakin and Baker took the final action of discharge on the basis of the Nole affidavit and their belief that Cooper had falsified the reason for her absence. On the basis of all the relevant evidence, I am satisfied and find that the General Counsel has not sustained his burden of establishing that the discharge of Cooper was for antiunion reasons proscribed by the Act and that the assigned reason was merely a pretext. 2. Joe Brown Employee Joe Brown worked in the machine shop overhauling machinery. He was discharged on September 23, 1972, after about 6 years of employment, allegedly for violating a no-smoking rule. Joe Brown was active in the organizational campaign, signed a union card, handled union cards, and attended 5 Cooper testified she had driven 18 miles to Georgetown to take her Cooper testified that upon receiving This information she did not arw p child to see her regular physician, Dr. Williams, but that on her way into the into the doctor's office but obtained some medication from a pharmacy and doctor's office, a patient who was leaving told her the doctor was not in. took care of the child herself. SANTEE RIVER WOOL COMBING CO., INC. 531 union meetings. It is undisputed that except for two rule infractions hereinafter discussed Brown was a good worker. In this connection Brown testified that in August or September of 1972 Supervisor Jack Morgan called him into a small office beside the combing room . According to Brown, Morgan opened the interview by telling Brown how much his work was appreciated and that with 20 men like Brown, they could almost run the mill . Morgan then asked Brown whether he knew the Union was around and whether he was taking part in it. Brown testified further that he said "yes" to this inquiry, that Morgan turned "red," and said, "you know, a lot of you have got fine homes and new cars; and everything could be taken away from you." 6 The events which, according to Santee, precipitated the discharge are not in controversy. Brown testified that on the day before his discharge he was in the plant lunchroom on his lunch break and that, pursuant to his customary practice, he left his grinding machine in the machine shop running and checked it for proper operation when he returned from lunch. On this particular day, Brown as usual lit a cigarette before returning to work, but before finishing it decided to go back to check his machine. Accordingly, he left the lunchroom which was a smoking area to go to the machine shop which was also a smoking area. The passage from the lunchroom to the machine shop was a hallway about 20 to 40 feet long and was posted as a no-smoking area. Brown testified, and his testimony in this regard is corroborated and undisputed, that as he walked through the passageway he cupped the lit cigarette in his hand and held his hand down at his side. Supervisor Morgan passed hun during this interval , stopped him and asked him if he were smoking. Brown said he was not smoking and was merely carrying a lit cigarette in his hand. Morgan directed Brown to go to the plant office. Soon thereafter Morgan, joined by Supervisor Waddill, met with Brown in the office, told Brown that something would have to be done about his offense, to go home and return the following day. Brown complied. The following day, Miklaszewski-the evidence is in conflict as to whether Morgan was also present-discharged him for smoking in a nonsmoking area. Reference was made in the course of the discussion to an earlier breach of a plant rule by Brown. The incident involved on that occasion occurred a few months earlier when Brown brought a friend into the plant to show the friend where he worked. Santee had a rule against bringing unauthorized visitors into the plant and Brown was given a 2-day suspension for breaking the rule. The critical facts here are not in question . Brown was admittedly in violation of a no-smoking rule which he knew about. His protestation that he was not smoking but merely carrying a lit cigarette cupped in his hand is, while accurate, not an exoneration of his break of the rule. And if the breach of the rule was the real reason for the discharge, then certainly the discharge was not violative of the Act. On the other hand, other facts of record cogently argue that the assigned reason was merely a pretext. Credible evidence was adduced that other employees and supervisors had violated the no-smoking rule with no resultant discipline. Santee countered with the defense that it either was unaware of such violations and that where it was aware took appropriate disciplinary action. Santee also adduced records showing a handful of instances covering a span of over 10 years where a violation of the no-smoking rule had resulted in discharge. The only exceptions to this procedure, Santee contended, were situations where the offending employee was new and may not have been aware of the rule. Brown, Santee argued, was aware of the rule and had once before broken a different rule. Yet in total context Santee's action here does not withstand close scrutiny. Brown was in Santee's own evaluation a highly competent employee. And discharge for violation of the no-smoking rule was not an automatic procedure. Moreover, credible evidence forcibly suggests that Santee had tolerated similar infractions , especially when engaged in by supervisors. In addition, Brown's conduct, while violating the letter of the no-smoking rule, was scarcely a flagrant violation. Brown, as supervisor Morgan observed, was merely carrying a lit cigarette cupped in his hand while proceeding through the hallway between the lunchroom where smoking was permitted to the machine shop where smoking was also permitted. The drastic discipline of discharge of a highly competent employee under such circumstances strongly engenders an inference that extraneous considerations entered into the discharge determination. And further support for such an inference derives from the fact that the determination took 2 days to make and that it was thought necessary to invoke the services of President Miklaszewski in that regard. This does not square at all with the position of Santee that the discharge of a nonprobationary employee for violating the no-smoking rule is virtually automatic. Rather, it would appear that the discharge sprang from the discovery made a few weeks earlier that Brown was an avowed union supporter. The hostility evinced by Morgan and Miklasz- ewski at that time is a more plausible explanation for Santee's readiness to seize upon the lit cigarette incident as a pretext to rid itself of a declared union adherent and to give meaning to its earlier comments as to the adverse consequences of unionization. In sum, I find that the discharge of Brown was motivated in whole or in part by Santee's hostility to union organization. I find further that Santee by discharging Brown violated Section 8(aX3) and (1) of the Act. 3. Bertha Brunson Bertha Brunson was discharged on November 2, 1972. Prior to her discharge Brunson, a 4-yeas employee, worked in the sorting department. The reason assigned for her discharge was that Brunson took leave without permission to attend the funeral of an uncle . Brunson had previously 6 Brown testified that this statement made a particular impact on him because he did have a new home. Morgan denied ever talking to Brown about the Union or mgwring about his union activities. In view of Santee's admitted program of having its supervisors interview all employees during the course of the organizational campaign, I credit Brown's testimony that the interview set forth did occur as he described it. Brown also testified to an interview with Santee's president, Miklaszewski, the next day which was of the same tenor. As already noted, Miklaszewski did not testify and Brown's account of the latter interview is undisputed. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made application for leave to attend the funeral and the application had been denied. Brunson was very active in the Union. She signed a union card, solicited fellow employees to sign cards, attended union meetings and acted as a union observer in the October election. Santee was aware almost from the beginning of the union campaign in late June of 1972 that Brunson was a union supporter. On or about October 30, 1972, Brunson submitted an application for a leave of absence to attend the funeral of her uncle which was scheduled for November 1, 1972. Baker was promptly advised that her application would be granted, if possible. On the day before the funeral, however, Baker was advised that the leave she sought could not be granted. Actually, Brunson was one of five employees in the sorting room who had requested leave to attend this funeral. The sorting room at the time was on a two-shift schedule and had been on that schedule for about 2 weeks. Prior to that time the sorting room had operated on a one- shift basis . Santee took the position that the release of five sorting room employees to attend the funeral would so interfere with the sorting room function as to throw the remaining operations of the plant, all of which handled the product initially processed by the sorting room, out of phase. Accordingly, the request of all five employees for leave was denied. Brunson sought a further explanation of the denial and her supervisor, Robert Baker, told her that the instructions had come from up front and that the leave could not be granted. Brunson suggested that the reason was because of the Union but no reply was made. On the following day, however, the day of the funeral, Brunson did not show up for work and went to the funeral anyway. This was on November 1. On the following day, pursuant to standard practice for unexcused absences, she reported to the personnel office and was informed by Baker and Personnel Director McMakm that she was discharged for taking off when permission had been denied. General Counsel contends that the real reason for the discharge was Brunson's known union sympathy and activity. In that regard, it is urged, inter alia, that Brunson's previous requests for leave had been honored; that this one was denied because of her union sympathies; that the entire sorting department had been closed down on two previous occasions for funerals; that she had even offered to switch shifts with other employees to attend the funeral, a technique that had been allowed before; and that three other employees, who were known to be against the Union, were permitted to attend the funeral on November 1. Upon analysis of the foregoing and other facts of record, these considerations lose their surface appeal. Baker's previous requests for leave had been honored but knowl- edge of her union activity did not occasion a change. On the contrary, Brunson was permitted to take leave on two earlier occasions after Santee learned of her union adherence. Moreover, five sorting-room employees were denied leave for November 1, and there is no indication, as to three of the five, of union sympathy or adherence. The two prior instances when the sorting-room operations were closed down completely for funerals were cases where a son and a daughter of individuals currently employed by Santee had died. Brunson's uncle was not an employee of Santee. There was no showing that the needs for sorting- room production were critical on those occasions. In the instant situation Santee was operating its sorting room on a two-shift basis and the granting of the five leaves requested would have reduced the shift complement from 13 to 8. Brunson's claim that she had arrangements to switch shifts so she could attend the funeral rests largely on her own uncorroborated assertion but, more particularly, the management decision to treat all five applicants for leave alike is hardly open to valid criticism. Finally, the fact that three other employees were allowed to attend the funeral is less than persuasive in that they came from other departments of the plant where the production situation could have differed substantially. The critical fact here in my view is that five employees in the sorting room requested leave, leave was denied to all five, and one of the five openly defied the denial of leave and took the day off anyway. In the face of this open and known insubordination and defiance , the action of Santee in meting out the penalty of discharge was wholly foreseeable. Moreover, were added justification required, the record establishes that Brunson had previously been criticized for shortcomings in her performance and had, indeed, received a final warning on the occasion of her most recent dereliction that any other violation would result in her discharge. To discount. all these considerations and conclude that Brunson's discharge on November 2, 1972, was attributa- ble to her union sympathies and activities would under the circumstances presented be sheer speculation and wholly unwarranted on the record. I find that General Counsel has failed to establish that the discharge of Brunson was violative of Section 8(a)(3) and (1) of the Act, as alleged. 4. James Nesmith James Nesmith was discharged on November 7, 1972, on the asserted ground that he had been absent from work without permission the previous weekend. The complaint alleges, and the answer denies, that Nesmith, like Cooper, Brown, and Brunson, was discharged for discriminatory reasons in violation of the Act. Nesmith usually worked with employee Flint Brocking- ton as a two-man team in the maintenance department under the supervision of Adam West. Their regular duties were to do outside maintenance and cleanup work. However, for a period of about 2 years Nesmith and Brockington were routinely asked to perform an additional chore, specifically, the weekly cleaning of two compart- ments on the roof of the plant, identified as penthouses. The penthouses were part of the plant's ventilation and air- filtering systems designed to control humidity and remove particles from the air in the plant. The penthouse leaning job was important as well as difficult to perform, requiring the services of two men for about 4 hours. Moreover, it could be done only when the plant operations were completely shut down. Because the plant for the most part and during the period relevant here operated on a 6-day schedule the cleaning was usually done on Sunday. When Nesmith and Brockington were working in the penthouses, SANTEE RIVER WOOL COMBING CO ., INC. 539 they fell under the supervision of Thomas King, mainte- nance foreman, and also reported to Shuler, a boiler operator and watchman, who had responsibility for the penthouses and, in turn, reported to Foreman King. The testimony of Nesmith, Brockington, and King establishes that the penthouse cleaning job, usually overtime work paid at overtime rates, was not part of Nesmith's and Brockington's regular duties. Instead, the usual procedure was that King, himself or through Shuler, would ask Nesmith and Brockington to do the work. In most instances Nesmith and Brockington would accept the assignment. On occasion, however, they would indicate that they wanted to be off for the weekend and King would arrange to assign the job to others. The incident which triggered the discharge of Nesmith arose in such a context. While some of the details are in controversy, the essential facts are undisputed. On Novem- ber 2 or 3, Nesmith and Brockington informed Shuler that they did not want to clean the penthouses in the upcoming weekend because they wanted to go out of town. King was promptly informed. King then checked the production schedules for the plant and discovered that the plant operations the coming weekend would not continue until the usual hour of midnight on Saturday but would shut down on Saturday afternoon. This would make it possible to do the cleaning job on Saturday instead of on Sunday. Accordingly, King did not follow his usual practice of finding other employees to do the job. Rather, he decided to ask Nesmith and Brockington whether, in view of the altered operations schedule, they would change their minds about doing the cleaning job. This took place on Friday afternoon, November 3. As King testified, I went to look for him [Brockington] before they [Nesmith and Brockington] knocked off to tell them that they could do the job on Saturday night if they wanted to. King admittedly transmitted this information only to Brockington. Nesmith, King testified, was not within earshot. Brockington acceded to King's suggestion.? Nesmith, as he had told Shuler and as Shuler had told King, went out of town over the weekend. Brockington, pursuant to his commitment to King, did go to the plant on Saturday. On the way to the plant, he stopped at Nesmith's home but Nesmith, of course, was not at home. Brocking- ton cleaned the penthouse most in need of cleaning. The other penthouse was not cleaned. The following Monday, November 6, King discovered that only one penthouse had been cleaned. His check of the personnel records disclosed that Brockington had come in on Saturday but Nesmith had not. No action was taken r There was some conflict in the testimony at this point Brockington testified that King spoke to him twice on Friday afternoon, that in the first conversation he told King that his understanding from Shuler was that others would do the cleaning job that weekend, but that on King's second appeal, Brockington said he would come in "because it looked like he wanted me to come in anyway." King testified that Brockington's answer was that "if we can do it Saturday night, we will come in and take care of it." King testified that he understood that Brockington was speaking both for himself and Nesmith . Brockington, however, testified that while he talked to Nesmith later that Friday he said nothing to Nesmith about cleaning the penthouses. I credit Brockington's testimony in this regard. Brockington could not know whether King had independently spoken to Nesmith as to this matter However, concededly, King had not done so. that day. But the following morning, November 7, Brockington and Nesmith were summoned to the plant personnel office and interviewed by King and Employment Manager Cornell McMakin. Brockington was interviewed first. According to King and McMakin, Brockington stated that he had told Nesmith to come in but that Nesmith had gone out of town.8 Nesmith was then called into the office. King and McMakin testified that they asked Nesmith why he had not come in on Saturday and that Nesmith replied that he had had to go out of town. This was, of course, in effect what Nesmith had told Shuler the previous Thursday or Friday when he indicated to Shuler, who in turn reported to King, that Nesmith would not be in that weekend. Nonetheless, King and McMakin told Nesmith some action would have to be taken. King and McMakin testified that they immediately reviewed the situation and inspected Nesmith's work record which revealed that Nesmith had during the course of his employment received two warnings and three suspensions for the same type of offense. Accordingly, King and McMakin decided to terminate Nesmith's employment and immediately dis- charged him. In an affidavit furnished to the Board during its investigation and prior to the instant hearing, McMakm stated that the reason for the discharge of Nesmith was "for being absent without justification." At the hearing itself, the prior work record of Nesmith was cited as an additional ground for the termination. Neither version rings quite true. It is undisputed that Nesmith and Brockington asked Shuler to get someone to take their places that weekend. Shuler testified that he told Nesmith and Brockington he would do this and so informed his superior, King. King knew, therefore, that Brockington and Nesmith were not coming in. He also knew, as his own testimony shows, that it was not part of their regular job to clean the penthouses and that their doing so was only upon request and at their option. Indeed, it was only when he discovered that plant operations would shut down early on Saturday that he decided not to recruit other employees to do the job and to see whether Nesmith and Brockington would be willing to do the job if it could be done on Saturday. The effort succeeded in the case of Brockington. But, as King conceded, he never communicated with Nesmith in this regard.9 In these circumstances, it could certainly have come as no surprise to King that Nesmith went out of town on Saturday. That is what Nesmith had previously told Shuler he was going to do and what Shuler had previously relayed to King. Moreover, the charge of absence "without justification" is less than descriptive as applied to a task s As already noted, Brockington credibly and forthrightly testified that he had not told Nesmith to come in Under these circumstances it strains credulity to believe that at his interview with King and McMakin, Brockington would contrive a contrary statement and one which would obviously put his friend and coworker in trouble I find that Brockington did not tell King and McMakin that he had instructed Nesmith to come in on Saturday. 9 King testified that he did not think it necessary to speak to Nesmith also because on similar occasions in the past, word given to one of the two employees would get to both. However warranted or unwarranted this assumption on King's part, it was slender basis, as noted in the text, for the drastic action of discharge. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which was not part of Nesmith' s regular work, which, as King knew, was to be done purely at Nesmith's option and which Nesmith had indicated he did not want to do. In addition, the belated attempt to buttress the legitima- cy of the discharge by citing similar infractions in Nesmith's previous work record is similarly wanting in merit. The more surprising fact is that the penalty of discharge was not imposed on those occasions but that it was invoked in the instant situation where the charge of dereliction on Nesmith's part was without foundation. In this context General Counsel urges that the reason assigned by Santee was merely a pretext and was merely seized upon to terminate the employment of a union adherent. As already stated, however, the burden to establish antiunion motivation rests upon General Coun- sel. Nesmith was active in the Union, signed a union card and attended union meetings. Santee knew of his activities in this regard.l° Indeed, Nesmith recalled that on at least two occasions his supervisor in the maintenance depart- ment, Adam West, asked him if he had been to a union meeting and how big a crowd was there. Brockington corroborated the testimony of Nesmith in this respect. Brockington testified that: [m]ost every meeting we had [West] asked us how many was going and who they was there; and I would tell him, you know, that I had gone and there was a crowd there; most of the time he asked James [Nesmith] that too. According to Brockington, West continued to make these inquiries of him and of Nesmith right up to the day of the election, but cautioned both employees not to mention that he was making these inquiries. Nesmith came in for special attention about 2 weeks before the election when, as he testified, he was told by West "to watch out, they have your name in the office; the least thing you do, they are going to let you go." 11 Nesmith, as already related, was let go less than a month after the election. On all the testimony and evidence relevant here, I am satisfied that Nesmith, like other union adherents in the work force, was a target of Santee's hostility because of his union activities. I am further satisfied that the penthouse cleaning incident on Saturday, September 5, provided what Santee deemed to be plausible ground upon which to predicate the termination of a union adherent whom management did not want to continue in its employ and that Santee seized upon this as a pretext for his discharge. The fact that the assigned reason does not withstand scrutiny does not in itself establish the unlawful character of the discharge, but as the Court of Appeals for the First Circuit long ago said in a frequently cited opinion, "the weight to be accorded inferences [of unlawful discharge] is to Santee challenges this proposition and points out that when Nesmith was questioned at the outset of his testimony about these activities, he answered merely that he attended the first union meeting, signed a card, and that was "all I can remember now " Nesmith, however, like most of the other Santee employees who testified at the hearing , was less than wholly literate, quite timid in his role as a witness in a formal hearing, and not always able to cope with, or respond to, questions put to him by the several counsel . Nevertheless, it was very clear from his later testimony, from the testimony of Brockington , and from other evidence of record herein discussed, that Nesmith's activities were considerably broader than he augmented by the fact that the explanation of the discharge offered by the respondent did not stand up under scrutiny." N. L. R. B. v. Bird Machine Company, 161 F.2d 589, 592 (C.A. 1, 1947). Upon a preponderance of the evidence in the record, I conclude and find that in discharging James Nesmith on November 7, 1972, Santee violated Section 8(aX3) and (1) of the Act.12 III. THE REPRESENTATION CASE (II-RC-3575) A. Background and Issues Pursuant to a Stipulation for Certification Upon Consent Election approved by the Acting Regional Director for Region II on September 14, 1972, a secret-ballot election was conducted under the supervision of the Regional Director on October 12 and 13, 1972, among the employees in the stipulated appropriate unit.13 The Tally of Ballots prepared at the conclusion of the election showed that of approximately 269 eligible voters, 265 cast ballots of which 152 were for the Union, 99 against the Union, and 14 were challenged. The challenged ballots were insufficient in number to affect the result of the election. However, on October 20, 1972, Santee filed timely objections to conduct affecting the results of the election. Pursuant to his investigation the Regional Director on February 9, 1973, issued his Report on Objections in which he overruled certain of the Santee's objections and directed that the remaining objections be set for hearing. The Regional Director also ordered that the hearing in this matter be consolidated with the unfair labor practice proceedings in Cases 11-CA-5120 and -5130. As already noted, the Board issued a later order expanding the scope of the objections to be considered at the consolidated hearing. The evidence adduced at the hearing relating to the several objections is summarized hereunder together with the findings and conclusions based thereon. 1. Objection I This objection alleges that the Union prevented the holding of a fair election by electioneering in the plant while the polls were open. Santee presented Virginia Brockington and Cicero Lambert as witnesses in this regard. Brockington, an employee of Santee for almost 6 years, was active on an employee antiunion committee and passed out antiunion leaflets during the organizational campaign. During the election she served as observer for the Company; Capers Pringle served as observer for the Union. Their duties in this regard entailed going together to the various depart- ments in the plant to inform the employees it was time to initially indicated and that Santee knew it. 11 Adam West did not testify. I credit the testimony of Brockington and Nesmith in respect to the conversations with West 12 The remedy appropriate for the unfair labor practices found herein will be set forth at the conclusion of this Decision 13 That unit is "All production and maintenance employees employed by the Employer [Santee ] at its Jamestown, South Carolina, plant, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act." SANTEE RIVER WOOL COMBING CO., INC. vote. According to Brockington, she and Pringle were instructed by the Board agent conducting the election to stay together at all times, not to talk to employees, and just to tell them it was time to vote. Brockington testified that while she and Pringle were carrying out their assignment they were together most of the time but that on occasion Pringle would drop behind, once as much as 20 feet. Pringle also, according to Brockington, waved to several employees and spoke to several employees but she could not hear what Pringle said.14 Brockington acknowledged that while Pringle and she were together Pringle never told anyone how to vote. Brockington stated that she told Pringle several times he was not supposed to talk to employees. She acknowledged, however, that she never reported or mentioned Pringle's conduct in this regard to the Board agent. Cicero Lambert, a supervisor in the scouring department, testified that on the day of the election Brockington and Pringle came into his department, that three of his employees, Silas Hamilton, Edward Myer, and Osker Mazyck were standing at the entrance, and that he saw Pringle shaking hands with these individuals. According to Lambert, Brockington asked him in the presence of the group whether his people were ready to vote and he replied that they were. Thereupon, Lambert testified, Pringle after a moment's hesitation jumped in front of Hamilton, Myer, and Mazyck, exclaiming, "Don't forget, vote my way." Lambert testified that Brockington was at this point some 20 to 25 feet distant on her way back to the polling place. Capers Pringle, Hamilton, Myer, and Mazyck testified as witnesses for the Union. Pringle emphatically denied making the remark attributed to him by Lambert or, indeed, making any like remark to any employee. His only comment to employees was "Good evening." He testified further that he and Brockington were rarely separated while they were performing their function as observers, that sometimes one or the other walked ahead but with a gap of no more than 10 feet, and that Brockington had said nothing to him about talking to employees. He acknowl- edged waving to employees and while initially denying shaking hands with employees, acknowledged when confronted with an affidavit he had submitted to the Board a few months before the hearing that he may have shaken some hands. Silas Hamilton and Edward Myers also testified as to the incident relating to Pringle's alleged remark that they should "vote my way." Both confirmed that Pringle and Brockington had come to the scouring department to summon the employees to vote. According to Hamilton, he, Edward Myer, and Osker Mazyck were present, Pringle said nothing about how they were to vote, and Pringle's single comment was a greeting, "how are you boys doing?" Hamilton testified that Supervisor Lambert was not present at this incident. Hamilton was not cross-examined. Edward Myers testified that the group consisted of himself, Hamilton, Mazyck and George Myers, brother of Edward. According to Edward Myers, Pringle made no comment 14 Pringle qualified this statement later when she recalled that Pringle said to one of the female employees in the combing department , "Hello, gtrhe, how are you doing?" 15 Osker Mazyck, who according to the testimony of all the witnesses 541 but did shake hands when he, Edward Myers, extended his hand to Pringle. According to Edward Myers, Lambert was standing about 30 yards away during this incident.15 Apart from minor and immaterial discrepancies in the testimony of the several witnesses it appears that Pringle did exchange greetings with some of the employees, shook hands with one or more of them, and may have exchanged comments with employees. Standing alone, such evidence would not establish that Pringle's conduct in this regard interfered with the holding of a free election. Significant in this regard is the fact that Brockington, while testifying at the hearing as to her deep concern over Pringle's conduct, did not at the time that conduct occurred deem it important enough to mention to the Board agent conduct- ing the election. More critical is the testimony of Supervisor Lambert that he heard Pringle tell three employees to "vote my way." Lambert's testimony in this regard was uncorroborated. Brockington testified that she did not hear the comments made by Pringle to the employees. Pringle denied making the quoted comment or any like comment to employees. More importantly, Hamilton and Edward Myers, whose testimony impressed me as candid and who were more disinterested than either Pringle, a union representative, or Lambert, a company supervisor, denied that Pringle made any such comment, even though they were the individuals to whom Pringle, according to Lambert, addressed his remarks. In sum, I do not credit Lambert's testimony in this regard. Accordingly, I find Objection I not sustained and without merit. 2. Objection 2 This objection is predicated on Santee's claim that the Union made material misrepresentations of fact concern- ing its contracts at other locations. The relevant evidence here can be briefly summarized. Employee Earl Crawford, a welder, testified as a witness for Santee. He stated, in substance, that at a union hall meeting held with Union Organizer Pope a week or 2 weeks before the election, Pope had misrepresented, i.e., overstated, the rates which welders and machinists received from Santee's sister plant in New England with which the Union had a contract. According to Crawford, Pope made further misrepresentations in this regard on the day before the election. Crawford testified that he had relayed the information which Pope gave him on these occasions to his coworkers in the machine shop but that the machine shop employees had very little contact with employees in other departments who were employed in different classifica- tions. Pope denied making any misrepresentations to Crawford in the meeting with Crawford at the union hall and denied altogether meeting with or talking to Crawford on the second occasion. Undisputed evidence establishes, however, that begin- ning early in the union campaign and thereafter the Union freely publicized to the employees considerable compara- was present, was subpenaed by the Union but did not appear at the hearing. George Myers, whom only Edward Myers identified as having been present, was not called upon to testify. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive wage data as between Santee and its sister plant, that Santee knew of the Union's publications in this regard, and that Santee had all the wage information at its disposal at all times. Moreover, it is also undisputed that at a meeting of all the employees in the machine shop, conducted on the day before the election, but following the time of the alleged second conversation between Pope and Crawford, Santee through its supervisor, Jack Morgan, showed the machine shop employees a copy of the contract at the sister plant including the rates for the machine shop classifica- tion. This is not a case, therefore, where a party to an election misstates material facts within its own special knowledge under such circumstances that the other party or parties cannot learn about them in time to point out the misstatements. In the instant case-assuming misstate- ments were made-a sharply controverted issue which need not be resolved-Santee was admittedly aware from the beginning of the campaign of the Union's leaflets and propaganda in this regard. Santee had the relevant data in its possession, and Santee could at any time, and did on the day before the election, enlighten the concerned employees as to the correct facts concerning which misstatements may have been made. I find Objection 2 to be without merit. See United States Gypsum Company, 130 NLRB 901, 904 (1961) and Hollywood Ceramics Company, Inc., 140 NLRB 221, 224 (1962). 3. Objection 416 Objection 4 has to do with alleged threats to employees and has reference to five separate incidents denominated here as 4A through 4E. 4A. Threat to sue: The record clearly establishes that on October 5, 1972, a group of employees were handing out an antiunion leaflet at the entrance to the plant. The leaflet had on it a picture of E. S. Guerry, Jr., also known as "Boschey" and described him as having "a big mouth." The appellation had reference to an earlier prounion leaflet which also had Guerry's picture, quoted him as supporting the organizational campaign and cited his earnings at a unionized plant. Among the employees handing out the antiunion leaflets were employees Edward Butler and Leroy Wright who were members of the in-plant antiunion committee. According to Butler and Wright, Union Representative Pope, who at the time was, with others, handing out prounion leaflets in the same vicinity, came over to where they were standing with a third employee, Willie Levine. Butler and Wright testified in substance that Pope told them the in-plant committee was being sued but that the suit would be dropped if the Union prevailed in the election. Levine did not testify. Butler and Wright further testified that they told fellow employees what Pope had said. Pope and Guerry testified in the Union's behalf. Guerry stated that on the way back from work, he saw the antiunion leaflet being distributed and became angry when he inspected the leaflet. Guerry had not given the in-plant committee permission to use his picture and, of course, resented being called a "big mouth." Guerry testified further that he immediately informed Leroy Wright and Willie Levine-Guerry could not identify the third employee who was there-that he was going to see an attorney. Guerry stated that he then also informed Pope that he was going to see a lawyer and that he then left the area. Butler acknowledged that he had seen Guerry in the area during this period. Pope's testimony corroborated that of Guerry. Thus, Pope testified that Guerry had talked to him about seeing an attorney and that Guerry had told Wright and a couple of fellows standing out there that they had better have a lawyer. Pope further testified that upon Guerry's depar- ture, he himself went over to Wright and the others and told them that "Boschey" [Guerry ] was really upset and was going to see a lawyer to see if he could file suit. According to Pope, he saw Guerry a few days later, sought to dissuade Guerry from filing suit, and, subsequently, informed Wright and Butler that they had nothing to worry about. There are, not unnaturally, inconsistencies and contra- dictions in the foregoing versions of what actually occurred and precisely what was said. However, on the basis of the composite testimony and on the basis of undisputed facts including the nature and content of the antiunion leaflet, it appears that the following occurred: Guerry was obviously angered at the unauthorized use of his picture and more particularly at the characterization that he had a "big mouth," and Guerry did talk about seeing a lawyer and suing. It is wholly probable that he expressed these sentiments to Wright, Butler, and Levine who were distributing the leaflets, and also to Pope who was in the vicinity. It is also wholly probable also that Pope would have conversed with Wright, Butler, and Levine about this development. I find that this is essentially what occurred. The only other conceivable explanation is that Pope "out of the blue" suddenly improvised the idea that he would threaten Wright, Butler, and Levine with a lawsuit with no suggestion as to what such a lawsuit would be based on. This I find quite incredible and wholly unlikely. Accordingly, I conclude that this is no more than a situation where Guerry as an individual was provoked and let it be known that he was going to see a lawyer, that Pope repeated what Guerry had said, and that Wright, Butler, and Levine were cognizant of the entire situation. Accordingly, I conclude and find that there is no basis for an allegation that the Union was threatening a lawsuit to coerce the employees concerned into voting for the Union or that Butler or Wright could reasonably so conclude. Objection 4A is not substantiated. 4B. Threats of loss of work unless union cards signed: The relevant evidence here derives from the testimony of employees Samuel Brown and Levi Sumter, witnesses for Santee, and of Union Representative Pope for the Union. Samuel Brown testified that on the day before the election, he was handing out antiunion pamphlets at the plant gate. Levi Sumter, a fellow employee, and John Rembert, a college student employee who has since returned to college, 16 Objection 3 was withdrawn by Santee while the matter was still pending before the Regional Director. SANTEE RIVER WOOL COMBING CO., INC. 543 were with him. According to Samuel Brown, he had a short conversation with Pope in the presence of Sumter and Rembert. Pope at the time was in the same area handing out union literature. Samuel Brown testified that he told Pope he had signed a union card but was not going to vote for the Umon, and that Pope replied that if Brown didn't vote for the Union and the Union got in, Brown wouldn't have a job. Levi Sumter testified that he, Samuel Brown, and Pope were comparing their respective leaflets at the plant entrance when Pope told Brown that "if he didn't sign a union card, that he won't be able to work there after the Union wins." Pope acknowledged that he had talked to Brown on the day before the election and that Sumter had been present. According to Pope, the situation was a customary one in which the pro- and antiunion groups were passing out their respective leaflets, and reading each other's leaflets, when Sam Brown approached and asked whether the Union could get an employee's job back for him if he lost his job and had not signed a union card. Pope replied that in such a situation "one of the things we have to prove for the court is that the person was for the union; and the fact that the company knew it; and if the person had never signed a union card, it would be kind of hard to prove that the person was for the union." Relevant in this connection also is the evidence firmly established in the record that all of Santee's employees had been specifically advised by top management in a series of meetings held throughout the organizational campaign that South Carolina was a "Right-to-Work" state and that union membership, affiliation, activity, or lack thereof could not be a condition of employment under any circumstances. Under these circumstances it strains credul- ity to believe that Pope, a sophisticated union representa- tive would have made the statement attributed to him by Samuel Brown and Levi Sumter. Rather it is more probable, and I find, that the conversation arose in the manner and took the form which Pope described. Moreo- ver, even assuming that Pope did not express himself unambiguously or that the purport of his remarks could have been misunderstood by Brown or Sumter, the impact of his comments upon a free election would have been negligible in view of the careful and scrupulous briefing given by Santee's top management to all the employees of the impact of South Carolina's "Right-to-Work" law. I find that Objection 4B has not been sustained. 4C. Threats that union card signers would have more authority and seniority than nonsigners: This allegation is predicated on the testimony of Mattie Lee Phillips, a witness for Santee, who had a 15-year record of employ- ment with the Company. Mattie Lee Phillips proved to be a somewhat difficult witness and required considerable prodding even by counsel for Santee. However, she testified in substance that she was visited at her home on September 14, 1972, by two union representatives, one of whom she was able to identify as Al Motley. According to her, these union representatives told her what they would do if they could get into the plant. Asked by Santee counsel whether the union representatives said anything about union cards and what would happen if she didn't sign a card, Phillips replied that they said they could pull nonsigners off their jobs if the Union got in. In response to a further question as to whether anything was said about seniority, Phillips replied that the union representatives stated that "the ones up above us would have the most seniority." According to Phillips, she was so upset by the visit, she had to go to the doctor for treatment . However, with respect to the visit itself and the statement allegedly made to her at that time, she testified that she "learned better" at a meeting Miklaszewski, Santee's president, conducted a few days later and that several fellow employees in whom she had confided told her not to worry, that "they didn't believe anyone could do such as that." The two union representatives who visited Mattie Lee Phillips on September 14 were Al Motley and George Kiser. Their testimony concerning this visit, given separate- ly,iT was extensive and detailed . A review of that testimony, consistent in all respects, and corroborated in sigmficant particulars by the testimony of Phillips herself, satisfies me that the visit was cordial and friendly, that no threats were made relating to pulling nonsigners off the job if the Union came in, and that no threats were made relating to seniority, even assuming that Phillips' testimony as to what was said concerning seniority could be construed as a threat. I credit the testimony of Motley and Kiser as to what occurred in their September 14 visit to Mattie Lee Phillips. Moreover, even assuming arguendo that Phillips misunderstood the tenor of statements made by Motley and Kiser, her own testimony establishes that any concern she may have had in that regard was within a few days allayed by Santee's president, Milaszewski, and by fellow employees in whom she confided. I find that Objection 4C has not been substantiated. 4D. A further threat that an employee would lose his job if he did not sign a union card: Apart from the testimony of Mattie Lee Phillips, already considered, and the testimony of Willie Tom Brown, treated below, it is not apparent, nor does Santee indicate in its brief, what evidence is tendered in support of this allegation. Accordingly, I find Objection 4D to be without support in the record. Objection 4E. Threat that the refusal to sign a union card would result in not getting a raise if the Union got in: Willie Tom Brown, a Santee employee for about 5 years, testified that he received a visit at his home about 2 weeks before the election by an individual who claimed to be a union representative. Brown could identify the individual only as "a large tall man," did not know the man's name, and stated that he never saw the man before or since. According to Brown, the individual identified himself orally, showed him no written or paper identification and told him merely that if he didn't sign a union card, he "wouldn't get no raise." The lack of any further identification and the paucity of detail in Brown's testimony furnishes too flimsy a pretext for a finding that an authorized representative or agent of the Union made the threat in question assuming such a threat was made. Moreover, with respect to the several IT A motion for sequestration of witnesses made by Santee at the opening of the hearing was granted and applied throughout this consolidat- ed proceeding. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements allegedly made in the various instances here considered, the impact of such statements , even if made, must be appraised in the context of the extensive meetings admittedly conducted by management officials with all the employees throughout the organizational campaign, stress- ing the South Carolina "Right-to-Work" law and the consequent inability of the Union , even if it prevailed in the election, to affect adversely the terms and conditions of employment of Santee's work force by the imposition of union membership or affiliation requirements. Accordingly, I find Objection 4E to be without merit.18 4. Objection identified under the heading "Other Reasons" This objection recites that the Union purposely misrepre- sented the employment status of Capers Pringle to the other employees by falsely stating that Pringle had been discharged for union activities when the Union knew that Pringle had not been discharged but was on a medical leave of absence. Nehemiah Hamm, a witness for Santee, testified on direct examination that on October 11, 1972, the night before the Board-conducted election, he was at a union meeting attended by about 60 people; that it was there stated that Capers Pringle had been fired and was ineligible to vote and get his job back; and that the Union said Pringle would get his job back . On cross-examination, Hamm, admittedly a member of and active in the in-plant antiunion committee, persisted in his testimony that the statement at the meeting was that Pringle had been fired, although Hamm had apparently used the word "laid off" in that connection in an earlier affidavit he had submitted to the Board. Hamm admitted, however, that no one said at the meeting that Pringle's termination was because of union activity. Pringle, who was also at the meeting, gave his account of the events relevant here. According to Pringle, Union Representative Pope announced at the meeting that he, Pope, had filed an unfair labor practice charge in Pringle's behalf and that if enough evidence could be found, the Federal government would give Pringle his job back with backpay. Pringle denied that anything was said at the meeting about his being "fired" by Santee . Pringle testified further that he himself had spoken at the meeting in support of the Union. On cross-examination Pringle conceded that mention might have been made at the meeting about his being "fired," but that he could not recall such a statement. Union Representative Pope also testified as to the October 11 meeting. According to Pope, those present were informed that Pringle would serve as an observer in the election the following day, but Pope stated that nothing was said about Pringle having been fired. In connection with the unfair labor practice charge filed in Pringle's behalf,19 Pope said he followed his usual routine in such situations, that is, he explained to the people what could happen in the event of a Board investigation; he gave the employees no assurances ; but stated that if the Board found enough evidence, "one of the rewards would be putting [Pringle ] back to work, his backpay, and expenses and things of that nature." In addition to the foregoing testimony , certain other relevant facts were stipulated or are undisputed . Pringle's last day of employment at Santee was June 29, 1972, at which time he was given a medical leave of absence. Later in July or early August 1972 the Union filed an unfair labor practice charge with the Board in Pringle's behalf alleging that his termination was violative of the Act. The Union withdrew that charge in early September when it learned that Pringle had not been terminated but was on medical leave of absence . Nevertheless, on October 11, 1972, the Union filed a second charge making the identical allegation as to Pringle set forth in the earlier charge. Pope explained the filing of the second charge on the ground that it was intended to preclude a challenge by Santee to Pringle's right to vote and act as union observer in the election the following day. Pringle's right to act as observer was not challenged nor was his right to vote. He performed both functions and the second charge was promptly withdrawn. On the basis of the evidence in the record, summarized herein, it appears, and I find, that while the Union made no express statement at the October 11 meeting that Pringle had been discharged for union activity, the statements that were made certainly lent themselves to an interpretation by the people present that such might be the case, that a charge had been filed in Pringle's behalf, and that if a government investigation disclosed enough evidence, Pringle might be returned to his job with backpay. The Union knew at this time that Pringle actually was on a medical leave of absence. However, Pope did not communicate this information to the employees at the meeting and the brief interval between the meeting on the night of October 11 and the election on the following day afforded Santee no opportunity to apprise the employees of the true situation. Under the circumstances Pope's explanation that the filing of the second charge was really designed to preclude a challenge to Pringle's status as an observer or as a voter is somewhat suspect. Moreover, no such explanation was vouchsafed at the meeting. In sum, it appears and I conclude that the Union promoted, or at least tolerated, a misconception among the people at the meeting as to Pringle's true employment status and that the timing of the Union's action precluded a response by Santee to that situation. On this basis Santee argues that its objection is valid, and that the election in which the Union prevailed should be set aside. In Santee's view, the Union created a false image of a callous employer and this image could not help but influence the employees and must have had a significant impact upon the election. Santee cites in support of its position the decision of the Board in Weslock, Division of Tool Engineering and is Objection 4F, as originally filed, had to do with a threat of bodily Order reviewing the Regional Director's report found no warrant for further harm made to an employee by a fellow employee and with a shot fired into consideration of this objection and Santee makes no further reference to an employee's home by a neighbor. The Regional Director in his report on this matter. objections found no probative evidence to establish union responsibility for 19 As later noted, an identical charge had been filed earlier and had been this conduct and overruled this objection. The Board in its Decision and withdrawn. SANTEE RIVER WOOL COMBING CO., INC. Research Corporation, 199 NLRB 549 (1972), involving a similar representation. The situations are not comparable, however, and it is elementary that in the infinitely varied situations that arise in election cases, a purely mechanical application of precedents can result in substantial injustice . To set aside an election of a bargaining representative because of a wooden application of precedents can be as drastic an emasculation of employee rights guaranteed by the Act as to foist upon employees a representative they have not fairly and freely chosen. In Weslock the Board concluded that the misrepresenta- tion there made created the impression among the employees that the employer had a "callous" disregard for employee rights and it was reasonable to conclude that this "must have had a significant impact on the employees .... No such conclusion is warranted in the instant case. As adequately shown here, the organizational campaign here was intense and prolonged . From the outset the employees were besieged with propaganda from adherents of the Union, from the in-plant antiunion committee, and from the employer. Santee's campaign was organized, systematic, and thorough reaching all the employees by literature , letters, pamphlets, and personal interviews by supervisors . This was, of course, Santee's right so long as it observed lawful limits in its efforts. But Santee did not observe those lawful limits . As shown herein, Santee's management hierarchy, including its president , Miklaszewski, engaged throughout the campaign in unlawful interrogation, threats , and related conduct to further its opposition to the organization effort. In addition, it terminated several union adherents and in two or these instances it has been found herein that the terminations were motivated by antiunion considerations. In the circumstances, the proposition that the events at the October 11 meeting would have made a critical change in the attitude of the employees toward Santee is simply not tenable. At worst, it portrayed a situation where still another union adherent may have been unjustly terminat. ed. This is not, of course, to condone, in any way, the Union's conduct in this regard. The critical issue, however, is whether that conduct can be said to have had an appreciable impact on the election. On this record I find that it did not, and I find further that the instant objection designated under the heading "Other Reasons" has not been sustained. B. Conclusions as to the Representation Proceeding Summarizing the findings herein, I find and conclude that Santee has failed to sustain its objections by a preponderance of the evidence in the record, and that its objections should be, and are, overruled. Accordingly, pursuant to the directive governing this aspect of the consolidated hearing, the representation case will be transferred to the Board for further appropriate action. 20 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in CONCLUSIONS OF LAW 545 1. By coercively interrogating its employees concerning union activities, by threatening them with reprisals for engaging in such activities and by creating the impression among its employees that their union activities were under surveillance, Santee violated Section 8(axl) of the Nation- al Labor Relations Act, as amended. 2. By discharging employees Joe Brown and James Nesmith, Santee violated Section 8(aX3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Santee did not violate the Act in the other respects alleged in the consolidated complaint issued herein. 5. The Union did not engage in conduct interfering with the employees' freedom of choice in the election conducted on October 12 and 13, 1972. REMEDY In addition to directing Santee to cease and desist from the several unfair labor practices found, the character and scope of the violations makes appropriate a further order directing Santee to refrain from infringing in any manner upon the rights guaranteed its employees in Section 7 of the Act. Affirmative relief is also appropriate here. Accordingly, Santee will be directed to reinstate Joe Brown and James Nesmith to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, and to make these employees whole for earnings lost as a result of their wrongful terminations from the date of such terminations to the date of Santee's offer of reinstatement, less their respective net earnings during such period . Backpay shall be computed in the manner prescribed in F. W Woolworth Company, Inc., 90 NLRB 289 (1950), and interest shall be added as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1%2). Santee will preserve the records necessary to effectuate this purpose and will further comply with the customary posting and giving of notices. Finally, I shall recommend that the objections urged in Case 11-RC-3575 be overruled and that the Board, upon transferral of this matter, take such further action as is appropriate. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I recommend the following: ORDER 20 Santee River Wool Combing Company , Inc., Respon- dent herein, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating any of its employees con- cerning union activities or threatening its employees with reprisals for engaging in such activities. (b) Creating the impression among its employees that it is exercising surveillance over their union activities. Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Discharging, or otherwise discriminating against, any employee for supporting Textile Workers of America, AFL-CIO, or any other labor organization. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary and appropriate to effectuate the policies of the Act: (a) Offer Joe Brown and James Nesmith immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs without prejudice to their seniority or other rights and privileges, and make Joe Brown and James Nesmith whole for their lost earnings in the manner prescribed in the section of this Decision entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Jamestown, South Carolina, copies of the attached notice marked "Appendix." 21 Copies of the notice, on forms provided by the Regional Director of Region 11, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspicu- ous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to see that the notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days of the date of this Order, what steps Respondent has taken to comply with said Order. IT IS ALSO ORDERED that the consolidated complaint herein be dismissed insofar as it alleges violations of the Act not specifically found herein. IT IS FURTHER RECOMMENDED that the objections filed in Case 11-RC-3575 be overruled and that the Board take such further action as is appropriate. 21 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with harm or punishment for engaging in union activities or coercive- ly question them about such activities. WE WILL NOT create an impression among our employees that we are exercising surveillance over their union activities. WE WILL NOT discharge or take other action against our employees because of their activities in support of Textile Workers Union of America, AFL-CIO, or any other union. WE WILL NOT interfere in any other manner with the right of our employees to engage in organizational activity or collective bargaining or to refrain from such activity. WE WILL offer the individuals named below their old jobs back and we will pay them for the earnings they lost because we discharged them. The individuals are Joe Brown and James Nesmith. SANTEE RIVER WOOL COMBING COMPANY, INC. (Employer) Dated By (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 concerning this notice or compliance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina 27101, Telephone 919-723-2383.