Mid Island Textile Industries, Inc.

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mid Island Textile Industries, Inc. and Knitgoods Workers Union, Local 155, International Ladies Garment Workers Union , AFL-CIO. Cases 29- CA-3469 and 29-CA-3594 October 31, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 30, 1974, Administrative Law Judge Mil- ton Janus issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel and the Re- spondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions, of the Administrative Law Judge and to adopt his recommended Order, with the following modifications. We find substantial evidence to justify the conclu- sions of the Administrative Law Judge that the dis- charge of Pat Grosso on August 8, 1973, was based upon unlawful considerations and was for the pur- pose of ridding the Respondent of its most active union adherent. As fully detailed in the Administrative Law Judge's Decision, Respondent's key supervisors and officials, immediately preceding the layoff, engaged in aggressive and blatant conduct violative of Section 8(a)(1) of the Act in an effort to undermine the Union. Grosso was known by the Respondent and Respondent's attorney to be the moving force behind the Union's organizational drive. Indeed Leo Muller, one of the Respondent's principals, asked Grosso into his office in June and accused her of being the leader for the Union and informed her that he would fight the Union all the way and would close the sew- ing department down before he would recognize it. Grosso was allegedly discharged for refusing to perform assigned work to another machine or opera- tion. As our dissenting colleague correctly points out, employees Baccafola and Solomon had previously been "summarily" discharged for similar conduct. The Administrative Law Judge dismissed the 8(a)(3) allegations regarding Solomon and Baccafola and, in agreement with our dissenting colleague, we would not disturb such findings. However, as to Grosso the record shows that after she returned from her vacation around August I. 1973, she refused to work on a machine she consid- ered unsatisfactory. Although she perhaps might have also been summarily discharged for insubordi- nation, the significant fact is that she was not, and instead was assigned to a different machine. The same day, the Respondent sent a letter notifying her that any further refusal to do the work assigned would result in her immediate discharge. The Ad- ministrative Law Judge construed, as do we, this ac- tion as an effort to lay a foundation for a pretextual case against her. This contrasted with the situation in the cases of Baccafola and Solomon, where refusal to transfer to another machine was almost instantly re- garded by a minor floor supervisor as grounds for discharge. Between August 2 or 3 and 8, Grosso was not assigned to the machine in question, and there were no incidents. On the morning of August 8, Grosso finished a particular job and asked Floorlady Guarnaccio for another assignment. Guarnaccio checked with Fore- lady Juliano and then returned to tell her to work on the machine which had been the cause of the prior controversy. Grosso raised the same objections for refusing to work on the machine. The record shows that Guarnaccio again went into the office to report to Juliano, and Juliano turned to Respondent Presi- dent Muller and asked him for advice. At the time Muller, Juliano, and Respondent Attorney Adler were having a conference with National Labor Rela- tions Board agents regarding unfair labor practice charges which had been filed. Muller looked to At- torney Adler who then said, "Why don't you get rid of her, fire her," saying that she should be fired be- cause she was upsetting the whole plant.' Muller tes- tified that Juliano then left the office and discharged Grosso. Thus, the record does not support our dissenting colleague's conclusion that the Respondent was forced by Grosso's actions with little choice but to take severe disciplinary action in a "major" person- nel matter, and thereby was following a normal busi- ness practice. The decision to discharge Grosso was clearly not Juliano's or Muller's but Respondent's at- torney, Adler's. Adler, by his admitted statements, in our opinion, recommended Grosso's discharge not because of her insubordination, but to "rid" the plant of the presence of a known and a prominent union adherent. Otherwise, we agree with the Administra- ' The Administrative Law Judge does not find as stated by our dissenting colleague that the reference to upsetting the whole plant was a reference to Grosso's refusal to work on the Mauser Since Adler would have no way of knowing whether Grosso was upsetting the plant by refusing to work on the Mauser the reference to upsetting the plant could only have been to Grosso's activities on behalf of the Union 214 NLRB No. 36 MID ISLAND TEXTILE INDUSTRIES tive Law Judge, it is difficult to understand why the Respondent's attorney interjected himself into a day- to-day discipline problem of the type which minor plant hierarchy in the past had shown the capability of handling, or why the Respondent's president should feel it necessary to defer to his attorney's deci- sion. The reason was obvious. Grosso was clearly not merely another employee, and her discharge could not in the Respondent's opinion be handled in the usual manner. Based upon the above considerations, we agree with the Administrative Law Judge that the stated basis for Grosso's discharge was a pretext to cloak a discriminatory motive and we find no defensible ba- sis for disturbing the Administrative Law Judge's finding. Our dissenting colleague would, in agreement with Administrative Law Judge, dismiss the two addition- al 8(a)(1) allegations discussed below, which we have overruled. In regard to the statement by Jeanette Muller, an official of the Company and wife of Respondent's president, to employee Frances Solo- mon that no wage raises were being given because of "what's going about the Union and all that sort of stuff," we disagree that this remark was merely refer- ring to the legal constraints placed upon an employer during an organizational campaign. The dissent has cited no cases, and indeed there are none, which pro- hibit an employer from following its normal wage practices during such a campaign, and to withhold such benefits may well be an unfair labor practice. As noted below, the impact of Mrs. Muller's remark would reasonably be interpreted as a threat to with- hold benefits because the Union was in the picture. As for the unsolicited remark of Mrs. Muller to Mildred Levrmi that "in a knitters' union shop the packers aren't allowed to sit," we also disagree that such remark was at most a "possible misrepresenta- tion as to prevailing conditions in the union shops." This would appear to be a supposition on the part of our dissenting colleague. In any event, misrepresen- tation or not, the message was clear that working conditions would be more onerous if the employees selected the Union. The Administrative Law Judge found that on July 2, 1973, on the day before the scheduled election em- ployee Solomon asked Mrs. Muller, wife of the Respondent's president and the secretary-treasurer of the Company, for a raise. Mrs Muller replied that she should speak to Mr. Muller and that the Respon- dent was not giving raises at that time "because of what was going on about the Union and that sort of stuff." When Solomon pressed the matter Mrs. Mul- ler again told her that she would have to speak to Mr. Muller. Mrs. Muller was not called to testify as a 485 witness and Solomon's testimony is therefore unde- nied. The Administrative Law Judge found that Mrs. Muller was mainly an office employee who would normally defer to Mr. Muller's greater responsibility and authority in wage matters. He concluded that her remarks were therefore not coercive and were merely informational and advisory. The Administra- tive Law Judge, therefore, dismissed the 8(a)(1) alle- gations regarding Solomon's conversation with Mrs. Muller. We disagree. The remarks of Mrs. Muller were made by an ad- mitted officer of Respondent and the wife of the Respondent's president. Not only must such remarks be attributed to Respondent on the basis of the agen- cy relationship that exists by virtue of Mrs. Muller's management position, but take on a special signifi- cance in view of Mrs. Muller's and her husband's active opposition to the Union, through their partici- pation in various acts violative of Section 8(a)(1) of the Act, fully described in the Administrative Law Judge's Decision. In our opinion Mrs. Muller's re- marks would be reasonably interpreted by Solomon as a threat to withhold wage increases or any other benefit because employees had engaged in union ac- tivities. Accordingly, we find that Mrs. Muller's re- marks restrained and coerced employees in violation of Section 8(a)(I) of the Act. The Administrative Law Judge failed to consider whether Mrs. Muller had engaged in harassment of Mildred Levrini, a packer, by threatening to impose upon her stricter and more onerous working condi- tions to dissuade employees from joining the Union. The record shows that when she was first employed Levrini did her work standing while the other pack- ers sat. Levrini then asked for a stool and eventually received one. Soon after Levrini signed a union card, and in a subsequent conversation with Mrs. Muller, she was told that in a union shop packers were not allowed to sit Following a reply by Levrini that she was not working in a union shop, Mrs. Muller stated that the new foreman, Castro, thought the packers could work more efficiently standing up. Later that day Mr. Muller told the packers that they could thereafter sit only 5 minutes every hour. The Administrative Law Judge found that the work rule change was economically motivated. He did not specifically rule, however, upon whether Mrs. Muller's remarks prior to the work rule change vio- lated Section 8(a)(l) of the Act. We find that the conversation of Mrs. Muller regarding the work rule change in the above context was to emphasize to Levrini the advantage of a nonunion shop, and would be reasonably interpreted by Levrini as a threat. Accordingly, we find that Mrs. Muller's re- 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mark to Levrini violated Section 8(a)(1) of the Act. ADDITIONAL CONCLUSION OF LAW On the basis of the foregoing and the entire record the Board makes the following Conclusion of Law 4, and the remaining conclusion is renumbered accord- ingly: "4. By threatening to withhold wage increases or any other benefit because employees had engaged in union activities, and by threatening to make a work rule change to dissuade employees from joining a union, the Respondent has engaged in unfair labor practices in violation within the meaning of Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Mid Island Textile Industries, Inc., Hicksville, New York, its officers, agents, successors, and assigns, shall take the action set forth in his recommended Order, as herein modified: 1. Add the following as paragraph 1(c), and relet- ter the remaining paragraph accordingly: "(c) Threatening to withhold wage increases or any other benefit because employees had engaged in union activities and threatening to make a work rule change to dissuade employees from joining a union." 2. Substitute the following for paragraph 2(a): "(a) Offer Patricia Grosso immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privi- leges, and make her whole for any loss of earning suffered by reason of Respondent's discrimination against her, in the manner set forth in `The Remedy' section." 3. Substitute the attached notice for that of the Administrative Law Judge. CHAIRMAN MILLER, dissenting in part: Contrary to my colleagues, I would not find that the Respondent violated Section 8(a)(3) by discharg- ing Pat Grosso for refusing to perform assigned work. The facts are substantially uncontroverted. Upon Grosso's return from vacation, about Au- gust 1, 1973, Forelady Carmella Juliano assigned her to a Mauser machine equipped with attachments to perform special operations. Grosso refused this as- signment because she felt that the Mauser was too noisy. As a consequence, Juliano assigned her to a different operation. Later that day, Respondent's president, Leo Muller, sent a letter to Grosso which stated, inter alia, "[c]onfirming our notification to you, any further refusal by you to do the work which you are assigned will result in your immediate dis- charge." Upon receipt of this letter, Grosso discussed the matter of the noisy Mauser with Muller who reit- erated that she would be dismissed if she refused to perform assigned work in the future. About I week later, upon completing her assigned duties, Grosso asked Forelady Caroline Guarnaccio for more work. Guarnaccio was temporarily filling in for Forelady Juliano who was attending a meeting with Respondent President Muller, its attorney, Adler, and two Board agents, who were investigating unfair labor practice charges. Guarnaccio interrupt- ed the meeting to confer with Juliano, and then in- structed Grosso to use the specially fitted Mauser to sew borders on a bundle of sweaters. Grosso refused this assignment. Guarnaccio again interrupted the meeting to ask Juliano what to do. At this point, as found by the Administrative Law Judge, Respondent Attorney Adler suggested that Grosso be fired be- cause she was upsetting the whole plant by refusing to work on the Mauser. Juliano then went out to the work floor and again asked Grosso to do the work. Juliano explained that she had no other work for Grosso and that she would be forced to send her home if Grosso continued to refuse to perform the Mauser job. Grosso again declined to work on the Mauser, told Juliano that she would rather go home, and walked out of the plant. My colleagues adopt the Administrative Law Judge's conclusion that proof of Respondent's dis- criminatory motive in discharging Grosso was evi- denced by Attorney Adler's involvement in a minor problem of plant discipline. In my view, such a find- ing is based solely on supposition and conjecture rather than the record facts. In finding that Grosso's discharge was activated by Respondent's concealed desire to rid itself of a prominent union supporter, rather than her insubordination, my colleagues have strained to draw an adverse inference from Adler's role in the discharge. Adler's intervention in this mat- ter does not warrant such an inference. One could equally argue that the Respondent quite naturally deferred to the judgment of its conveniently available labor counsel when faced both with whether, under the circumstances here, it was proper to assign work to a leading union adherent of a type which she had previously protested, and also as to whether she could be disciplined for refusing such an assignment. Further, Grosso's discharge cannot fairly be charac- terized as a normal minor problem of plant disci- MID ISLAND TEXTILE INDUSTRIES pline, since insubordination is a serious employee of- fense, while at the same time discipline of an employ- ee organizer is not a matter to be taken lightly, par- ticularly when the Respondent already faces other pending unfair labor practice charges. Respondent was respectful of Grosso's rights and indeed acted less precipitately in her case than in those of other employees who had refused work assignments. Thus, whereas employees Solomon and Baccafola had been summarily discharged for their unwillingness to per- form assigned work, Respondent first put Grosso on notice on several occasions that her repeated refusal to perform her work would result in dismissal. Addi- tionally, on the day of her discharge, both Juliano and Guarnaccio unsuccessfully tried to convince Grosso to do the work rather than face certain dis- charge. Nor was Adler's opinion that Grosso could or should be discharged seized upon as an excuse for hasty or ill-considered action. Instead of immediately returning to the work floor and discharging Grosso, Juliano once again attempted to persuade her to per- form the Mauser job to avoid the necessity for taking disciplinary measures. By adamantly refusing to work on the Mauser, the only work available for her at the time, Grosso left the Respondent with little choice but to take severe disciplinary action. In these circumstances, I am not persuaded that Respondent discharged Grosso because of her union activities rather than her continued insubordination in refusing to perform assigned work. Further, I would find in agreement with the Ad- ministrative Law Judge that Jeanette Muller, wife of Respondent's president, did not violate Section 8(a)(1) on July 2, 1973, by her remark to employee Frances Solomon during a discussion concerning the possibility of a wage increase for Solomon. Mrs. Muller responded to Solomon's request for an in- crease by directing her to discuss the matter with her husband but voiced her opinion that no raises were being given at that time. When Solomon questioned this latter statement, Mrs. Muller replied that it was because of "what's going on about the Union and all that sort of stuff," and reiterated that Solomon should talk to Mr. Muller. The Administrative Law Judge found that Mrs. Muller merely deferred to Mr. Muller because of his greater authority and responsi- bility in such matters. Moreover, as noted by the Ad- ministrative Law Judge, this incident occurred just I day prior to the scheduled hearing on the representa- tion petition filed by the Union 2 weeks prior thereto. In my view, Mrs. Muller's remarks merely referred to the legal constraints placed upon the Employer in granting unscheduled benefits to employees, such as Solomon's requested wage increase, after the Union 487 had entered the picture and filed an election petition. Accordingly, I would not find Mrs. Muller's com- ment violative of the Act. Finally, contrary to my colleagues, I would not find that Mrs. Muller's casual remark to packer Mil- dred Levrini, that "in a knitters' union [shop] the packers aren't allowed to sit," constituted an unlaw- ful threat to change working conditions. In my view, Mrs. Muller's comment was, at most, a possible mis- representation as to prevailing conditions in union shops, but did not constitute a threat in violation of Section 8(a)(1) of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act protects employ- ees in their right to form, join, and assist labor unions or to refrain from such activity. WE WILL offer Patricia Grosso immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to her seniority or other rights and privileges, and we will pay her for the earnings she lost because we wrongfully dis- charged her, plus interest at 6 percent. WE WILL NOT discharge or discriminate against employees who join or assist Knitgood Workers Union, Local 155, International Ladies Gar- ment Workers Union, AFL-CIO, or any other Union, or who engage in other concerted activi- ties for their mutual aid or protection. WE WILL NOT accuse any of our employees of being ringleaders in the Union. WE WILL NOT threaten to close down either the sewing department or the entire plant if the Union gets in. WE WILL NOT tell employees that if they want a union, we will get them one. WE WILL NOT threaten to withhold wage in- creases or any other benefit because employees have engaged in union activities. WE WILL NOT threaten to make work rule changes to dissuade employees from joining a union. WE WILL NOT ask employees what they think about a union, or if they are in favor of one. WE WILL NOT condition our granting benefits in the future on the absence of a union. WE WILL NOT forbid employees to retain union literature in the plant. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT keep any contacts between union representatives and our employees under surveillance. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act. MID ISLAND TEXTILE INDUSTRIES, INC. DECISION STATEMENT OF THE CASE MILTON JANUS, Administrative Law Judge: The General Counsel issued a complaint in Case 29-CA-3469, on Sep- tember 24, 1973, based on charges filed by the Charging Union (Local 155) on July 10 and August 30, 1973. On December 27, 1973, he issued a consolidated amended complaint in Cases 29-CA-3469 and 29-CA-3594. The charge in the latter case was filed by Local 155 on October 16, 1973. The consolidated complaint alleges that Respon- dent had discharged three employees, one each in May, July, and August 1973, because they had joined or assisted Local 155, in violation of Section 8(a)(3) and (1), and that it had also engaged in certain acts of interference, restraint, and coercion in the exercise of the rights guaranteed its employees by Section 7 of the Act, in violation of Section 8(a)(1). I held a hearing in this matter on January 29-31, and on February 5, 1974, at Brooklyn, New York, at which all parties were represented. After the hearing, Respondent filed a brief with me which I have duly considered. Upon the entire record in the case, including my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a New York corporation with its principal office and place of business in Hicksville, New York. It is engaged in performing knitting contracting services in the garment industry. In 1973, it purchased and received at its plant, yarn, thread, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of the same amount were transported and deliv- ered to its plant from States other than New York. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Local 155 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Leo and Jeanette Muller, husband and wife, and another principal established Mid Island Textile Industries and be- gan production in November 1972. The Company is en- gaged mainly in knitting and sewing sweaters. About 55 of its 70 or so employees are women who operate various types of sewing machines, or who work as floorgirls and packers The events described below took place between April and August 1973, when Local 155 was engaged in a cam- paign to organize the plant's sewing department. It filed a petition for an election on June 18, but withdrew it on July 3, the date scheduled for the representation hearing For a short period before Local 155 began its organizing efforts, a local of the Electrical Workers Union had also attempted to organize by stationing representatives at the parking lot adjacent to the plant where they passed out leaflets and cards. These efforts ceased about the time that Local 155 appeared on the scene. Three employees were discharged allegedly for activities on behalf of Local 155. They are Teresa Baccafola on May 4, Frances Solomon on July 6, and Patricia Grosso on Au- gust 8 B The 8(a)(1) Allegations The complaint alleges that company supervisors on vari- ous dates during Local 155's organizing campaign interro- gated employees about the Union, kept them under surveil- lance, suggested to them that it would select a union for them if they wanted one, warned and threatened employ- ees that it would not accept Local 155 as their bargaining representative and that it would close its plant before it would recognize a union, promised and threatened them that it would either grant or not grant benefits, and finally, that it harassed certain named employees in their work and working conditions because of their adherence to the Union. When Local 155's organizing efforts began in April, the plant had been in operation less than 6 months. At the time, the Company had no program for paying for vaca- tions or sick time, nor did it provide insurance against sick- ness, accidents, etc. The feeling that job security was lack- ing, and the failure to provide the fringe benefits named above, caused some employee dissatisfaction. The first contact with Local 155 was initiated by Pat Grosso, one of the alleged discriminatees, in March. She distributed au- thorization cards at the plant on nonworking time, and had signed up a few employees even before business represen- tatives of Local 155 began openly distributing cards and campaign material outside the plant about April 11. There- after, two or more union agents were at the parking lot adjacent to the plant three or four times a week, at the beginning and end of the work shift, from April to August. Solicitation of employees and distribution of cards inside the plant were done by a few employees, including Grosso, on nonworking time. How much of this in-plant activity on behalf of the Union came to the attention of management is a matter of dispute. MID ISLAND TEXTILE INDUSTRIES 1. In mid-April, shortly after Local 155s campaign be- gan, Leo Muller spoke to the employees at a meeting called for that purpose. Who initiated the meeting, how long Mul- ler spoke, what he said, whether he then left, and how long the employees continued their own discussion, are all un- certain, but only the question of what Muller said is critical here. There is substantial agreement as to what he said on some matters, and disagreement as to others. The fullest accounts, and even they are sparse, are those of Grosso and Baccafola, who testified for the General Counsel, and Muller, who testified for the Respondent.' Grosso said that Muller had pointed out that there were two unions outside the plant, that he could not tell them which one to choose, and that it was their decision to make. However, at another point in her testimony, Grosso also said that Muller had said that he would pick a union for them. Further, Muller is supposed to have said that he had had dealings with Local 155 before, and that they had closed up one shop of his, and if the employees wanted to know anything about Local 155, they should talk to people in the shop who had been in the Union. Muller also said, according to Grosso, that he was going to give them bene- fits but could make no promises at that time. He pointed out that it was a new shop, that many of the employees were learners, and he could not predict what would happen in the next year. Baccafola testified that Muller told the assembled em- ployees that the Union was outside, and that if the people stood with him for a year, he would try to get them Blue Cross and profit sharing, but he could not make any prom- ises then. Baccafola said she spoke up during the meeting, and mentioned some good things that the Union might accomplish, such as improving working conditions, obtain- ingjob security, sick pay and Blue Cross. Baccafola did not testify that Muller's speech mentioned any past experience he might have had with Local 155.2 Muller's account is short enough to quote in full- Q. Would you tell us what happened at the meet- ing, what the girls said to you, and what you said to them? A. Specifically, I started it I remember I told them there were union people standing outside. I could not tell them whether to join any union or not to join any union, or which union to join. I told them we were new in business, we hadn't been there a year yet, that we in the past had planned certain things that will happen in the future, but I couldn't tell them at this point what they were. More or less I-once in a while I think somebody shot a question at me and I told them I couldn't- once in a while one of the girls or somebody would ask i The other accounts are all by witnesses called by the Respondent who were presently employed by it Although each remembers very little, they agree that Muller told them he would not advise them as to what they ought to do regarding the unions, and that he could not promise then anything 2 Muller has operated shops in the garment industry for many years, and he testified that in one such shop, which he closed in 1959. he had had a bargaining relationship with Local 155 He said that a very small factor in the decision to close that shop was his experience with Local 155 489 me a question and most of these questions were ques- tions I really couldn't answer, and I told them so. I don't remember every word I said at the particular time. It was a long time ago. But the gist of it, and the final analysis, I told them to speak to others in their shop, we had employed people who used to belong to the union or still belonged to the union, talk it over with them and to talk it over among themselves. And I left the group at that point. Grosso attributed to Muller two remarks which none of the other witnesses, including Baccafola, recalled. They are that if the girls wanted a union eventually, he would pick or get them a union, and that he had had Local 155 in one of his shops and had closed it down because of his experi- ence with the Local. I think Grosso was mistaken on these matters, and that if Muller said this, it was at some other time and place. Grosso herself seemed doubtful whether Muller had talked about his previous experience with Lo- cal 155 at the employee meeting.3 As to the remark attri- buted to Muller by Grosso about his picking a union for the employees, I do not credit Grosso, since it seems extra- neous to the point Muller was making, which most of the witnesses, including Grosso, testified to-that it was up to the employees to choose whether they wanted a union at all, and that they should talk to those in the shop who were or had been members of Local 155. As to what Muller said in his speech, I find that he did not condition any future grants of benefits on the employ- ees' decision about the Union He told them that he could make no promises, that it was a new shop, and in that context, he held out the hope that in the future he might be able to give them the fringe benefits they were concerned about. The contingency on which his hope depended was whether the plant would prosper and not whether the em- ployees selected a Union. He was undoubtedly aware that Local 155's campaign was based on its claim that wages and working conditions at organized plants were better than at his, and he implicitly admitted that that was so. In effect, he was asking for an indefinite period in which to meet the employees' desires for improvements, but I do not understand his remarks to mean that he would do so only if the employees rejected a union. I therefore hold that nothing in Muller's speech to the employees violated Sec- tion 8(a)(l). 2. Grosso testified that Muller had asked her to come to his office one day in June, and that she was there with him for over 2 hours. She said that Muller then told her that she was the ringleader and had been passing out union litera- ture. Grosso said she denied it, but that he had told her that the girls had been talking about it. Grosso also said she told him that she had not signed a union card, appar- ently volunteering that false bit of information. They got i Immediately after testifying that Muller had said he had closed down his shop because of Local 155. the General Counsel again asked Grosso Q What did he say as best as you can recall with respect to not having 1559 A At that meeting I can't recall exactly There was so much that- but he did say that if we think- if we think this union is so good talk to people that belong to 155 and see what they think of the union [Em- phasis supplied l 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into a conversation about Local 155, in which he said he understood some of the employees had been threatened by the union representatives. Grosso told him she had never been threatened, and that she would talk to them if she wanted to. Muller replied that it was all right to talk to them as long as they did not trespass on his property. He also said, according to Grosso, that he wouldn't have Local 155, he would fight it all the way, that they were nothing but gangsters, and he would close the shop down, make it just a knitting shop before he would have Local 155. He also said that because the Union was there, he could not promise the employees what he was going to give them, that the girls had made it bad for themselves because of the Union. Finally, according to Grosso, Muller said he knew the girls in the sewing department would not go Union, but if they ever wanted a Union he would get them one. Muller denied that he had ever asked Grosso to come to his office, but said that he had found her there one morn- ing, when she complained that foreman Castro had called her the night before to come in that day, and had then told her that he had no work for her. Muller said he told her she was right, and he would pay her for a half day. He said she then tried to engage him in a discussion, telling him that her mother had once belonged to a union, but that she had not signed a card. He said he told her it made no difference to him, and then sent her out to the plant to work.4 If Grosso and Muller were recounting the same conver- sation (and neither suggests that Grosso was in Muller's office more than once) there seems to be no possible recon- ciliation between the two stories. In Muller's first version, the conversation can scarcely have lasted 5 minutes, yet Grosso says that she and Muller were together over 2 hours, discussing a wide variety of topics, including the Union. I credit Grosso, since I am convinced that Muller knew or suspected, despite his denials, that she was actively in favor of the Union, and had been soliciting cards in the plant. Since the Union had filed its petition on June 18, a conversation at the end of June (when Grosso and Muller agreed it had taken place) would be an appropriate time for Muller to learn what he could from one of the Union's major adherents, and to put pressure on her. I therefore find that Muller accused Grosso of being a ringleader for the Union in the plant, said he would fight Local 155 all the way, and would close the sewing department down be- fore he would recognize it. I also find, as Grosso testified, that because the Union was on the scene, he couldn't promise to give them what he wanted to give them,5 and that he also said that if the girls ever wanted a union, he would get them one. These remarks extend over the entire spectrum of Section 8(a)(1) violations, as acts of interfer- ence, restraint, and coercion. Teresa Baccafola testified that early in April, Mrs. Mul- ler, in a casual conversation, asked her and other nearby 4 This was his testimony on direct On cross-examination, however, he admitted that Grosso had been in his office for about an hour, but he did not explain what more they might have talked about 5 Here, unlike his speech to the employees, Muller explicitly linked his hope of making future improvements in wages and fringe benefits to the presence of the Union machine operators what they thought about a union and if they were in favor of it. Baccafola said she told Mrs. Mul- ler she thought a union had some good points. Mrs. Muller did not testify, and Baccafola's report of their conversation is therefore undenied. Baccafola also testified that Mr. Muller had said a num- ber of times while walking about the plant floor, that he had had a union before and would have to close his doors if the Union came in because he would lose too much mon- ey. Grosso testified to the same effect. Mr. Muller denied that he had ever told any employees that he had once had to close down his shop, and said he could not recall ever telling employees that one of his shops had been repre- sented by Local 155. I credit Baccafola over Muller because Muller engaged in what I regard as evasions with respect to his knowledge of the extent of union activity in the plant. I do not accept his denial or his asserted failure to recall what he said about his earlier experiences with Local 155, and find that he told Baccafola and other employees that he would have to close the shop if the Union got in. I find the statement to be a threat rather than a legitimate prediction of the eco- nomic consequences attendant on unionization. I also find Mrs. Muller's inquiry of Baccafola and others as to wheth- er they were in favor of a Union to be coercive interroga- tion. When the Electrical Workers Local first appeared out- side the plant, Grosso had gotten some leaflets from their representatives and had given some to Baccafola. Muller told her to get rid of them, and she told him she had not read them yet. He then told her, according to Baccafola, that he did not need any troublemakers and to get rid of them. She complied with this order. Forbidding employees to retain union material in the plant interferes with the employees' right to obtain, read, and consider information and propaganda which the union seeks to distribute as a preliminary to organization. I find Muller's order to be a violation of Section 8(a)(1). Grosso also testified that the forelady, Carmella Juliano, came over to her soon after Local 155 began soliciting cards, and asked her what she thought of the Union. Gros- so told her she did not know because she never worked for a union shop, and Juliano responded that it sounded like a pretty good idea because she had. Juliano then asked Gros- so what her husband thought of it, and Grosso told her that her husband had said to do what she felt was right. Juliano then left, but returned later to say that she thought the Union really was not a good idea. Juliano denied that she had ever had any conversation with Grosso concerning the Union. I credit Grosso. I believe that suspicion was focusing on Grosso as a strong supporter of the Union and that Juliano was trying to learn what she could about the Union's strength in the plant. I find that Juliano's inquiry of Grosso as to what she thought of the Union, and her statement first that she, Juliano, thought it was a good idea, and later that it was not a good idea, were designed to encourage Grosso to reveal her true feelings on the matter. I find that Juliano's inquiries constitute coercive interroga- tion, since they were intended to elicit from Grosso any- thing that might help Juliano and Muller learn the extent of union penetration among the employees. MID ISLAND TEXTILE INDUSTRIES 3. The complaint alleges that supervisors, including Leo and Jeanette Muller, kept the meetings and union activities of its employees under surveillance. From April into July or August, Local 155 stationed two representatives outside the parking lot adjacent to the plant to talk to the employees and distribute its literature and authorization cards. They would be there three or four times a week, when the employees came to work in the morning and when they left in the afternoon. On their first day at the plant, Muller came out and told them they were trespassing on his property, and thereafter they moved away from the plant entrance, stationing themselves at the street entrance to the parking lot. On several occasions during this extended 3- or 4-month period, Muller would leave the plant to observe their activities. Aldrich, one of the representatives, testified that Muller had come out into the parking lot only one morning during this period, but more frequently in the afternoon. The other representative, DeAngelis, said he saw Muller come out several mornings, with an implication that it occurred more frequently afternoons. Neither was asked for an esti- mate of how many times Muller appeared outside the plant during the entire period of their solicitation activities. Grosso testified that Muller had stationed himself in the parking lot a few mornings when the union men were there, and that she had seen him many times out there, presumably in the afternoons. Other times, Grosso said, Muller would stand by a window in the plant which over- looked the parking lot, and from which part of the street was visible. She also said that when women came into work with leaflets they had accepted from the union representa- tives, Muller would ask them what it was they had. Baccafola also testified that she saw Muller stand near the door to the plant watching the distribution of literature and cards by the union representatives, and that he would sometimes take the cards from the employees who were entering. Her opportunity to observe Muller was limited to about 3 weeks, from April 11, when distribution began, to May 4, the day she left the Company's employ. Although the entire period of the distribution outside the parking area was 3 or 4 months, her testimony is nonetheless credi- table as to what she herself observed. Although it is impossible to ascertain from the above testimony just how frequently or continuously Muller kept the union representatives or his employees under observa- tion, it is my impression, particularly from Grosso's evi- dence, that it occurred often enough so that employees would feel restraint in talking to or accepting literature from the union men, for fear that Muller might be watch- ing them either in the parking lot or from inside the plant.6 I find that Muller was engaging in surveillance of the Union's organizing efforts, and that he thereby violated Section 8(a)(1). 4. Paragraph 14(a) of the complaint alleges that Jeanette 6 Frances Solomon, a sewing department employee and one of the three alleged discnmmatees , testified that Muller was in the parking lot every time the union representatives were there I do not credit her testimony since even the union representatives, who would be in the best position to know how often Muller appeared in the parking lot, made no such sweeping accu- sation 491 Muller told employees on July 2 that the Company would not grant any wage increases to its employees because they had joined or assisted Local 155. The only evidence for this charge is based on a conversation between Frances Solo- mon and Mrs. Muller. Solomon testified that on July 2 she asked Mrs. Muller for a raise, was told to speak to Mr. Muller about it and that the Company was not giving rais- es at that time. Solomon asked her why, and Mrs. Muller is supposed to have said it was because of "what's going on about the Union and all that sort of stuff." Solomon re- plied that she did not know what that had to do with her getting a raise, to which Mrs. Muller again told her that she would have to talk to Mr. Muller. Mrs. Muller was not called as a witness, and Solomon's story is therefore unde- nied. There was apparently no defined wage classification sys- tem in the plant, and decisions on raises were made on personal application to management. It will be noted that Solomon's conversation with Mrs. Muller occurred the day before the scheduled representation hearing, and I presume Mrs. Muller was aware of that fact. Since Mr. Muller was in full charge of production in the plant, and his wife was mainly an office employee, although also secretary of the corporation, I assume she would normally defer to his greater responsibility and authority in wage matters. I find that Mrs Muller was not conditioning the grant of a wage raise to Solomon or other employees on union consider- ations, but was simply advising her that Mr. Muller would have to make the decision. I shall recommend dismissal of this paragraph of the complaint. The violations of Section 8(a)(1), discussed above, were generally directed toward counteracting the organizational activities of Local 155 itself, rather than against the efforts of individual employees in the plant who were working on its behalf. Paragraph 15 of the complaint, however, relates to actions taken by plant supervisors to harass five named employees "by engaging in closer surveillance of the work and work habits of said employees, by establishing and imposing stricter work rules and more onerous working conditions upon said employees, and by reassigning, or at- tempting to reassign them, to work on inferior machines and equipment, and to more arduous and less agreeable job tasks." Since these allegations presuppose that compa- ny supervisors knew or suspected that the named employ- ees (Baccafola, Solomon, Grosso, Levrini, and Amari) were assisting the Union, it becomes necessary to examine the evidence bearing on the matter before determining whether the actions complained of were taken in retaliation for their union activities. On a Saturday early in May, union representatives met with a small number of employees, among them Grosso and Solomon, in a restaurant. A few days later at work, Julie Kiesling, the head packer at the plant (not alleged to be a supervisor), asked Solomon if there had been a union meeting. Solomon admitted there had been one, and told her who had attended. Later, Solomon told Grosso and others about Kiesling's inquiry, and was told that Kiesling was a close friend of Jeanette Muller's, and would proba- bly pass the information on to her Kiesling denied that she had ever had a conversation with anyone about their atten- dance at a union meeting, but said that Grosso had volun- 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tarily told her about such a meeting. Grosso had also asked Kiesling to sign a card, which she refused to do. Kiesling also denied telling the Mullers or forelady Juliano anything about the Union. Kiesling impressed me as being a more credible witness than Solomon, and I credit the former's denial that she had inquired about the union meeting, or that she had passed on any information which she other- wise learned about the union sympathies of the employees to Jeanette Muller or other company officials. I am satisfied , however, that Leo Muller learned about the extent of distribution and solicitation within the plant from other sources. Grosso testified that she had distribut- ed about 40 cards in the plant, either to women for their individual signatures, or to others, like Baccafola and Solo- mon, for redistribution.? All distribution took place at the plant before or after work or during lunch. Grosso testified that forelady Juliano was present when she gave Baccafola some cards to pass out in early April. Juliano admitted she knew that Grosso was passing out cards, but she denied telling Muller about it. She said she learned this from two of the employees, Teresa Leonetti and another identified only as Tonina.8 She denied knowing that the women in the sewing department were talking about the Union among themselves. Baccafola testified that she had distributed about 10 cards in and around the shop during nonworking time. Al- though the Mullers, the foreman and Juliano, the forelady, moved about the plant continuously during work periods, there is no evidence that any of them observed Baccafola's activities during nonwork time. Baccafola's testimony, of course, is limited to the early stages of the Union's cam- paign, from late March, when Grosso first began her solici- tation for the Union, to early May, when Baccafola was terminated. As to later stages of the campaign, it will be recalled that Muller accused Grosso of being the ringleader when they spoke together in his office at the end of June. Although Grosso then told him that she had not signed a union card, I am satisfied that Muller had good reason not to believe her. Muller denied that Juliano or other supervisors had ever told him that any employees were passing out cards. However, he said it was evident after a while that there was union activity around the shop, althOgh he denied that anyone had ever told him what was going on inside the shop. Juliano admitted that she had learned from Leonetti that Grosso had given her a card to sign. Juliano's knowledge as to Grosso's activities is attributable to the Respondent, even though Juliano denied ever telling the Mullers about it. I discredit Juliano's testimony that she did not tell the 7 Solomon said she had talked to other employees about the Union, but had not passed out the cards which Grosso had given her R Her testimony is not clear on the matter, and this affects my opinion as to her general credibility I take it that Juliano meant that she first learned of Grosso's card distribution from Leonetti, who had complained to her that Grosso was harassing her about signing This was a day or so after Muller found Leonetti crying at her machine, and asked Juliano to learn what was wrong Juliano said Leonetti had told her then it was because the union representatives were harassing her, but only later that it was Grosso who was doing the harassing Juliano said she told Muller only about the Union doing the harassing Mullers what she had learned about Grosso's activities on behalf of the Union because of its improbability, and therefore find that Muller knew that Grosso was actively distributing union cards and soliciting signatures among the sewing machine operators. There is less basis for finding that Muller knew whether Baccafola and Solomon were engaged in union activities. As to the former, there is her testimony that she asked questions or made statements at the employee meeting in April which could be construed as favorable to unions; on the other hand, there is also her admission that she told Juliano she had heard no talk about a union . As for Solo- mon, there is even less ground for finding that the Compa- ny knew how she felt about the Union. She said she had told Kieshng about attending a union meeting, but I have credited Kiesling's denial of such a conversation, or that she told Muller or other management people about it. In any event, whatever Kiesling may have known of Solomon's union activities cannot be attributed to the Company since she is not a supervisor. 5. There were about 55 women in the sewing depart- ment operating a variety of machines. Some were engaged in straight sewing, while others operated specialty ma- chines, identified either by name or function. Among these were Merrows, Mausers, Rimaldis, bar-tack and blind- stitch. According to Roff, the foreman or plant manager for part of this period, an operator on one type of machine could learn to operate another type satisfactorily in an hour or two. The specialty machines also had attachments for even more specialized operations, but not every ma- chine of a particular type had all the attachments on it. Transferring operators was done frequently, either between two machines of the same type, or from one specialty ma- chine to another kind, or between machines with different attachments. Operators had their favorite machines or pre- ferred to do a particular job, and were sometimes reluctant to be moved to some other type of operation. Between March and August, three different foremen were employed, of whom two played some part in the inci- dents described below. (In the supervisory hierarchy at the plant, foremen occupied the layer between Leo Muller and the forelady, Juliano). Ed Roff was there in April and May, and Henry Castro was there from June on. There is ample testimony that a new foreman would make changes in the layout of the machines or in the flow of work or however he thought operations could be made more efficient. The machines were noisy and were placed close together. Operators were not prohibited from talking, but continu- ous conversation was difficult because of the noise and the need to concentrate on the machine and the job being done. The Mullers, the foreman, and the forelady moved around the department, assigning work, transferring em- ployees to different machines, and generally striving to get as much work out as quickly as possible. The fact that supervisors were circulating around also tended to inhibit inattention to the job. Some of the employees who had signed cards testified that they felt they were being watched more, were transfer- red to less desirable machines, or were deprived of privi- leges formerly enjoyed, after the advent of Local 155. Other employees, some of whom had also signed cards, MID ISLAND TEXTILE INDUSTRIES testified that no unusual changes were made in their work- ing conditions during this period. Thus, Grosso said she had been transferred for a time to a machine in an area where the other operators did not speak English, and she attributed this to a desire on the part of the company supervisors to deprive her of any op- portunity to talk to fellow employees at work. Solomon said that foreman Castro prohibited all the employees from talking while working. Amari, who had signed a card and had attended the union meeting in May , testified rather reluctantly for the Respondent. She said she thought she had been watched more closely and that the foreman kept pushing her around between machines after the Union's appearance, but said that now she was not sure whether it was as bad as she had thought then. Levrini, testifying for the General Counsel, was no lon- ger employed by the Company at the time of the hearing. She had worked as a packer, folding garments, putting them in bags, and placing the bags in bins. Some of this work could be done sitting down, but other work could only be done while standing. When she was first employed, she stood while the other two packers sat. Levrini then asked for a stool and eventually got one. Then, soon after she signed a union card, Jeanette Muller said that in a union shop, the packers were not allowed to sit. Levrini pointed out that she was not working in a union shop. Mrs. Muller then said that Henry, the foreman, thought the packers could do their work better standing up. Later that day, Mr. Muller told the packers that they could sit only 5 minutes per hour. Levnni admitted that up to then she had sat more on the job than did the other packers. Soon after that, two of the stools were removed, and the packers stood most of the time. About a month later, Levnni brought in a letter from her doctor saying that she needed a sitting job because of her condition. Kieslmg, the head packer, said it would not be fair if she could sit while the other packers had to stand, and the foreman then transferred Levrini to anotherjob, at the same rate of pay, where she could sit while working. The packers who remained on the job continued to stand most of the time after Levrini left. Kiesling testified that in her previous employment as a packer at other plants, no stools at all were provided. At Mid Island, she said, there had been two stools for four packers, but that Castro removed one of the stools, shortly after he was hired as foreman. Later, more stools were brought in, but the rule still was that packers sat only when they were tired. If there is any connection at all between the advent of the Union and these rather innocuous changes in working conditions or hardening attitudes on the part of supervisors towards what had previously been permitted or over- looked, it seems to me to be too tenuous to sustain a find- ing of violation based thereon. New foremen expected to make changes and tighten up what they regarded as slack operations, if only to show that they were more efficient than their predecessors, and I think these changes were ordered by Roff and Castro in what may be described as "new broom" operations. Baccafola, Solomon, and Grosso, the three alleged dis- criminatees, were each discharged (or quit) as a result of a 493 controversy over a transfer to another machine or opera- tion. Although I presume the General Counsel considers these too as harassing tactics, they are better considered in connection with the particular facts on which the Section 8(a)(3) allegations are based. C. The 8(a)(3) Allegations 1. Baccafola was hired in November 1972, when the plant first opened. She had had no experience in the gar- ment industry and was trained by the Company as a blind- stitch operator. She said that she had never worked on any other type of machine, except once, for about a half hour on a bar-tack. She was frightened by it, and Juliano then moved her back to the blind-stitch. Baccafola's testimony is that on May 4, Juliano asked her to leave what she was doing and move to the back machine . Baccafola assumed that Juliano meant a Mauser, the last machine in her row, rather than to a blind-stitch or bar-tack which were directly behind her own machine. Only the Mauser was unoccupied at the time. Baccafola said she told Juliano she did not know how to operate it Juliano repeated her order, and again Baccafola said she could not work it. Juliano left and she continued at her blind-stitch machine. About 5 minutes later, foreman Roff appeared, told her not to speak disrespectfully to Juliano and to move to the back machine. She told him the blind- stitch was the only machine she could operate. He ordered her to go to the other machine, at which she asked to speak to Muller. Roff said Muller was not in the plant, and Bac- cafola again refused to move. After some further argument and loud language, Roff told her to punch out. She still insisted on seeing Muller at which, according to Baccafola, Roff said he had direct orders from Muller to dismiss her. She then left. Juliano testified that Roff had asked her to move Bacca- fola to a bar-tack machine, but Baccafola refused to go. Sometime later, Roff asked her why Baccafola was not working the bar-tack, and she told him that Baccafola had refused to move. Roff then walked over to Baccafola and began shouting, at which Baccafola began to shout also, making unkind remarks about Juliano. Roff told her that was no way to talk about her forelady, at which Baccafola got up and said she was leaving. Juliano admitted she had walked away during part of the heated discussion, and had not heard it all. Roff testified that he had told Juliano to transfer Bacca- fola to a bar-tack, and a half hour later, noted that she had not moved. Juliano told him that Baccafola had been abu- sive to her and had said she did not want to work on it. Roff said he went over to Baccafola and asked her why she did not follow instructions, and why she was abusive She told him that Juliano had been abusive to her, and she would not go. He told her that if she did not move he would have to let her go. She asked to see Muller, and he told her Muller was away He then fired her, and she again asked to see Muller. Roff told her he would call the police to remove her, but Baccafola then got up, announced she was quitting and left the plant. Roff also testified that he had seen Baccafola work a bar-tack, had asked Juliano if Baccafola could do it, and 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Juliano said she could. He also said there was an unoccupied bar-tack to which he wanted to transfer her. He was not asked either to affirm or deny Baccafola's testi- mony that he had told her he had direct orders from Mul- ler to dismiss her. Baccafola refused to obey what seems on the surface to be a reasonable order from her supervisors. Other employ- ees were moved from one type of machine to another, re- gardless of their personal preferences, in order to best uti- lize the equipment. Even if Baccafola was not exaggerating her fright at operating the bar-tack, it seems that the proper thing for her to do was to move to the new assignment and make a reasonable attempt to learn its operation. This as- sumes that Roff and Juliano were not deliberately trying to entrap her into refusing to work a machine she was fright- ened of. As in many discrimination cases, it gets down to what the employer's motivation was. I have noted that the only evidence for Muller's suspecting that Baccafola might be prounion consists of wha she might have said at the mass employee meeting some weeks earlier, and her testi- mony that she distributed some cards at the plant on non- work time. There is no evidence that Juliano, Roff, or Mul- ler knew of her activities, and Baccafola in fact had told Juliano she had no contact with the Union. Considering all the elements, particularly Baccafola's minor participation in the Union's campaign, the absence of evidence that the Company was aware of even that, and Baccafola's insubordination in refusing to move to another machine, I find that she was discharged for nondiscrimina- tory reasons. I have taken into account, in reaching this conclusion, Baccafola's testimony that Roff had told her it was useless for her to speak with Muller because he had direct orders from him to discharge her. Although Roff was not asked about this, I have sufficient doubt about the truth of her story, to discredit her on the matter. Roff ap- peared to be a no-nonsense supervisor, direct and blunt, and unlikely to suffer insubordination easily. When his power to transfer an employee was being questioned or flouted, he would be likely to assert his authority by imme- diate discharge without justifying his conduct by invoking an order from Muller. I therefore recommend dismissal of the complaint as it relates to Baccafola's discharge. 2. Solomon had been first employed in November 1972, had left in January (or been discharged for absenteeism) but was rehired in March. She had signed a union card on April 5, at Baccafola's request, had talked about the need for job security with other employees, but had not distrib- uted any cards. She had attended the union meeting with a few other employees in May at a restaurant? This was the extent of her work for the Union. She said that shortly after the May union meeting, the foreman, Henry Castro, began to harass her by prohibiting her from talking at work. I note, however, as bearing on her credibility, that Castro did not become foreman until June, a month after the union meeting. Solomon testified that on July 2, Castro asked her to move from her blind-stitch machine to another one. She 9 I have previously set out Solomon's testimony that she had told Kiesling who had attended the meeting, but I found there that Kiesling had not passed the information on to company supervisors did so, but it was not operating properly, so she went back to her old machine. It came to Castro' s attention, and he told her that he wanted to put another operator on her machine and for her to return to the one he had assigned her. She refused to go, and protested to Jeanette Muller that Castro wanted to put an inexperienced operator on her machine. The next day, according to Solomon, Castro asked her three or four times to go to the machine he had assigned her the day before, but again she refused. The following working day, July 5, she started out on her old machine, and again Castro asked her to work at the other machine, which she considered defective. She did go to it, tried it for a while, and then returned to her own machine. At the end of the day, Solomon again complained to Mrs. Muller that Castro wanted to put Josie, an inexperienced operator on her machine. There was another Josie in the plant who was an experienced blind-stitch operator. This was Josie Amari, who complained to Solomon that Juliano had told her that Solomon was claiming to be a better worker than she, and therefore deserved a raise . Solomon had asked Mrs. Muller for a raise on July 2. Solomon then assured Amari that it was the other Josie whom she had meant to compare her- self with. Amari accepted Solomon's explanation. Later that morning, Solomon accused forelady Juliano of caus- ing dissension between herself and Amari. Castro hap- pened to be near, and said that if he wanted to put another girl on her machine, he could do it. According to Solomon, Castro then caught sight of Muller and is supposed to have said, "well, maybe he has his reasons." Without going into further details, the discussions became more animated, and finally, Solomon yelled out to Castro that he was a liar. Muller then said that he could not have that, and for her to get out. Neither Castro nor Jeanette Muller testified, so that the stories of two of the principals involved in these events are not available. The Respondent's side of the story comes from employees who testified that Solomon and Castro were arguing, that she began to scream and call him names, and that Leo Muller, hearing the loud voices, came into the area and asked her to calm down and come into his of- fice.10 Muller said he was in the cutting room with a customer when he heard a shriek and then loud arguing. He walked over and saw Solomon waving her arms and screaming. He asked her to calm down and come into his office, but she continued screaming. Finally, she said that he was running a goddamn sweat shop, at which he told her to get out. As in the case of Baccafola, with so little firm evidence as to company knowledge of Solomon's adherence to the Union, I am left only with an incident where the employee has become vulnerable by disobeying a work order. There is no doubt that there was a loud confrontation between Castro and Solomon. I credit Muller that he was with a customer and that the incident was an embarrassment to him. I also believe that he asked her to come into his office to calm down, and that her last outburst prompted him to "'These witnesses were Guarnaccio, Kteslmg, and Devine Aman is also generally in accord with their testimony and also corroborates Solomon on Juliano's meddling in telling Aman that Solomon had said she was the better worker, and deserving of a raise MID ISLAND TEXTILE INDUSTRIES discharge her. I shall recommend dismissal of the Section 8(a)(3) allegations as to Solomon. 3. Grosso was terminated on August 8. Like Baccafola and Solomon, she was discharged because she refused to move to another machine on the orders of Castro and Juli- ano. Grosso was a more versatile operator than the other two, and had worked on more kinds of machines at the plant, including Mausers. At that time , there was one Mau- ser that was noisier than the others , apparently because of an oversize motor. How much noisier or how it would af- fect its operators is a matter of dispute . A number of em- ployees testified that they had worked on it, and no one other than Grosso ever refused to be transferred to it. Grosso returned from her vacation about August 1 and was assigned to the noisy Mauser by Castro. She refused to work on it, and Juliano then assigned her to a bar-tack. That same day, the Company sent her a letter (G.C. Exh. 3) notifying her that any further refusal to do the work as- signed her would result in immediate discharge . When the letter arrived at the Grosso home , her husband brought it to her, and together they went in to see Muller. She told Muller she would work on any machine in the plant but not the noisy Mauser . Muller said she would have to take any assignment given her. Grosso then told Muller that the reason he was doing this to her was because she had signed a union card, and if the Union gave her another one, she would sign that too. According to Grosso, Muller said he was very happy about that, but she would be taking her chances if she did not do what she was assigned. Between that date, probably August 2 or 3 and 8 , Grosso was not assigned to the noisy machine On the morning of the 8th, Grosso finished a particular job and asked Caro- line, the floorgirl (Guarnaccio), for another assignment. Guarnaccio went to check with the forelady, Juliano, and then returned to tell her to work on the noisy Mauser. Grosso refused, and Castro then told her to take the assign- ment. She refused again . Juliano then arrived on the scene and asked her to work on the Mauser until Castro could set up another machine for her. Grosso asked why he could not set up one of the other Mausers for what he wanted done. Juliano then said she had nothing else for her to do, and that she would have to go home. Grosso picked up her things, left, and has never returned. Juliano had asked Guarnaccio to take her place in the department that morning because she was in the office being interviewed by Board agents in connection with the then pending unfair labor practice charge relating to Solo- mon. Also in the office were Muller and the Company's attorney, Adler. Juliano testified that Guarnaccio came into the office to tell her that Grosso was out of work and to ask where she should be assigned . Juliano told Guarnac- cio to give her a bundle of work to be done on the noisy Mauser. Guarnaccio left and returned in a few moments to report that Grosso refused to go on that machine. Juliano said she would have to tell her to go home, walked into the department, and asked Grosso to do the bundle for her. Grosso refused again, and Juliano told her to go home Juliano then went back into the office to tell those who were there that she had had to let Grosso go because she refused to do what she was told. She denied that she had 495 had any further conversation with anyone then about the discharge. This account of Juliano's omits a significant bit of infor- mation which both Guarnaccio and Muller testified to. It is that when Guarnaccio came into the office to report Grosso's refusal to work on the noisy Mauser , Juliano was about to tell her what to do when Attorney Adler spoke up, saying that she should be fired because she was upsetting the whole plant . At that, Juliano went out and told Grosso she had work for her, but Grosso refused to move to the Mauser, whereupon Juliano told her she would have to go home. Muller's testimony on the incident is substantially the same-that Guarnaccio came into the office to report to Juliano that she was having trouble with Grosso, that Juli- ano asked him what to do, and that he looked at Adler, who then said, "Why don't you get rid of her, fire her." He said that Juliano then left the office and, as far as he knows, fired Grosso . Thus, contrary to Juliano's testimony, the decision to fire Grosso was not hers, but Adler's. I have found , contrary to Muller's testimony , that he knew that Grosso had been the most active union adherent in the plant , and I also find that Adler knew it too. The two of them must also have realized that Grosso had laid her- self open to discipline for refusing to take the job assigned her. Did Adler decide to recommend her discharge because of her insubordination or because he had just been present- ed with a good opportunity to conceal his true reason for getting rid of a prominent union adherent ? I find it was the latter. It is difficult otherwise to understand why the Company's attorney should inject himself into a minor problem of plant discipline , or why the company president should feel it necessary to defer to his decision. Even though the Union's petition for an election had been withdrawn recently, there was no reason why another active campaign for union representation could not start up again. With Grosso removed from the plant, however, much of the impetus inside the plant would be lost. I have also taken into consideration , in finding that Grosso was discharged because of the Union , that Muller sent her a warning letter on August 1. 1 construe his action as an effort to lay a foundation for building a pretextual case against her, unlike the situation with Baccafola and Solo- mon, where refusal to transfer to another machine was al- most instantly regarded by a floor supervisor as ground for discharge. I find that Grosso's discharge on August 8 was in violation of Section 8(a)(3)." CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Knitgood Workers Union, Local 155, International Ladies Garment Workers Union , AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. ii 1 have also considered the fact that Grosso was denied unemployment benefits by the New York State agency . on the ground that the discharge was justified It is well established that the findings of a State unemploy- ment agency are not binding on the Board, nor are they particularly persua- sive in this case since the agency did not consider the possibility that the discharge may have been pretextual 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By discriminatorily terminating Patricia Grosso, thereby discouraging membership in the Union, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By accusing an employee of being a ringleader for the Union; threatening to close down the sewing department or the entire plant if the Union got in; conditioning the grant of future benefits on the absence of a union; telling employees that if they wanted a union it would get them one; asking employees what they thought about a union and if they were in favor of one; by forbidding employees to retain union literature in the plant; and by engaging in surveillance of the contacts between union representatives and employees, Respondent has interfered with, coerced, and restrained its employees in the exercise of the rights guaranteed in Section 7 of the Act, and in violation of Section 8(a)(1) of the Act. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has committed certain unfair labor practices, I shall recommend that it cease and desist therefrom, and take certain affirmative action de- signed to effectuate the policies of the Act. Having discharged Patricia Grosso, I find it necessary to order the Respondent to offer her reinstatement, with backpay computed on a quarterly basis from the date of her termination to the date of the offer of reinstatement, as prescribed in F. W. Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum. I shall also order it to post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 Respondent, Mid Island Textile Industries, Inc., its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Knitgoods Workers Union, Local 155, International Ladies Garment Workers Union, AFL-CIO, or in any other labor organization of its 12 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes employees, by discriminatorily discharging, forcing the ter- mination, or in any other manner discriminating against any employee in regard to hire, tenure, or any other term or condition of employment. (b) Accusing an employee of being a ringleader for the Union; threatening to close down the sewing department or the entire plant if the Union got in; conditioning the grant of future benefits on the absence of a union; telling employees that if they want a union, it would get them one; asking employees what they thought about a union, and if they were in favor of one, forbidding employees to retain union literature in the plant; or keeping under surveillance the contacts between union representatives and its employ- ees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to loin or assist the above-named labor orga- nization, or any other labor organization, to bargain collec- tively through representatives of then own choosing, to en- gage in other concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Nation- al Labor Relations Act, or to refrain from any or all such activities. 2 Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Patricia Grosso immediate and full reinstate- ment to her former job, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings suffered by reason of Respondent's dis- crimination against her, in the manner set forth in "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all re- cords necessary to analyze the amount of backpay due, and the right of reinstatement. (c) Post at its plant and office at Hicksville, New York, copies of the attached notice marked "Appendix." 13 Cop- ies of the notice, on forms provided by the Regional Direc- tor for Region 29, after being duly signed by an authorized representative of the Respondent, shall be posted immedi- ately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to en- sure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith. 13 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board "