Starkville, Inc.

STARKVILLE, INC. 595 Starkville, Inc.; Hillsdale Manufacturing Corporation; Lambert Mills, Inc., Wholly Owned Subsidiaries of Garan, Inc. and Amalgamated Clothing Workers of America, AFL-CIO. Cases 26-CA-4899, 26- CA-4899-1, 26-CA-4899-2, 26-CA-4899-3, 26- CA-4908, 26-CA-4908-2, 26-CA-4908-3, 26- CA-4922, and 26-RC-4631 July 28, 1975 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY of school buses). Davis also stated that Respondent "couldn't afford to pay that and before they would pay, they would close." On October 23 Production Manager Bennett said to employee Hood that the Kosciusko plant was losing money and "that if the Union went in, it would cause further losses from strikes and so on, disturbance in the work; that they-if they kept losing money, that would make them lose more money. They would close the doors." We cannot agree, as concluded by the Administra- tive Law Judge, that the above remarks constituted permissible predictions of the economic conse- quences of unionization. In N. L. R. B. v. Gissel Pack- ing Co., Inc., 395 U.S. 575, 618 (1969), the Supreme Court said: On May 31, 1974, Administrative Law Judge Ben- jamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed cross-exceptions, an answering brief, and brief in support of cross-excep- tions. 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 only to the extent consistent herewith, and to adopt his rec- ommended Order as modified herein. 1. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Brenda Pur- nell and Andrew Gordon and by denying certain prounion employees an opportunity to participate in inventory work. We also agree with the Administra- tive Law Judge's finding that Respondent violated Section 8(a)(1) by interrogating employees about their union membership, sympathies, and desires on October 12, 19, 22, and 23, 1973. Finally, we agree with the Administrative Law Judge's recommenda- tion that the election be set aside and a new election directed. 2. The Administrative Law Judge found that re- marks made by Supervisor Davis to employee Dick- ens on October 2 and by Production Manager Ben- nett to employee Hood on October 23 did not constitute threats of plant closure. On October 2 Su- pervisor Davis spoke to Dickens at Dickens' work station. Dickens was asked what he thought about the Union. Dickens responded that he did not know. Davis then stated that Respondent could not pay $3 or $4 an hour, "like Superior" (a local manufacturer . .. an employer is free to communicate to his employees any of his general views about union- ism or any of his specific views about a particu- lar union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effect he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable conse- quences beyond his control or to convey a man- agement decision already arrived at to close the plant in case of unionization. Here the predictions of plant closure were not based on objective facts. The Union had not demanded "$3.00 or $4.00 an hour, like Superior." Nor is there any evidence that selection of the Union would cause strikes and further economic losses resulting there- from. Finally, there is no evidence of a predeter- mined plan to close the plant in the event of union- ization. Under these circumstances, we find, contrary to the Administrative Law Judge, that Respondent's predictions of plant closure were actually threats to close the plant in the event of unionization in viola- tion of Section 8(a)(1) of the Act. 3. Although the Administrative Law Judge found several instances of unlawful interrogation, he dis- missed the allegation of coercive interrogation based on the McArthur-Gillmore conversation of October 3, 1973. On that day, Mrs. McArthur, a supervisor in the sewing room, approached at her workplace Mrs. Gillmore, an operator who worked under her super- vision, and said she wanted to talk to her. Mrs. Mc- Arthur stated in substance that she was adamantly opposed to a union and asked if Mrs. Gillmore had anything to say on the subject. Mrs. Gillmore replied, "No, I don't have anything to say." The Administra- tive Law Judge concluded that there was nothing in- 219 NLRB No. 118 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terrogatory about this exchange ; Mrs. McArthur was simply expressing her opinion about the Union. We do not agree. The conversation about unions was ini- tiated by the supervisor who asked the employee for her comments . If the employee had responded to the supervisor's statements against unions , as she was re- quested to do, the employee would have been re- quired to reveal her own feelings and attitude to the current union organization drive. Particularly in view of the other incidents of unlawful interrogation, we find that Supervisor McArthur also engaged in un- lawful interrogation of employee Gillmore in viola- tion of Section 8(a)(1) of the Act. 4. On the second day of the hearing, the General Counsel moved to amend the complaint to allege that Kosciusko Plant Manager Alston Willette had violated Section 8(a)(1) of the Act by calling employ- ees from their work stations to the break area to read them a lecture about plant rules and penalties for violation. According to the evidence, a couple of weeks after Respondent had received a letter signed by a number of union adherents declaring their adherence to the Union, Willette summoned about 10 of the employees who had signed the letter to the break area where, according to employee Minnie At- terberry: He told us that we had no special privileges; that we were supposed to do our job and not being bothering with anyone and it was our privilege to work for the union if we wanted as long as we didn't do it on company time. . . . And he ex- pected us to do our job and everything. The Administrative Law Judge denied the motion to amend upon the ground that to grant it would be a denial of due process since the idea for the amend- ment originated with him. We find no merit in the reason assigned by the Administrative Law Judge for the denial of the motion. The motion to amend was made early in the hearing. Respondent had ample time during the remainder of the hearing to prepare its defense to this allegation , and in fact the issue was fully litigated. Accordingly, we overrule the Adminis- trative Law Judge's denial of the motion. However, we find no violation of the Act in the conduct of this meeting. Nothing that was said by Willette to the group of employees was coercive . Nor was the man- ner in which he conducted the meeting such as to create fear in the minds of his listeners . In this re- spect, Willette's meeting was unlike the similar meet- ings conducted by Starkville Plant Manager John- son, which the Administrative Law Judge found to be violative of Section 8(a)(1). Not only were these latter meetings held in the plant office, the site of managerial authority, but Johnson's demeanor and remarks to employees accompanying his reading of the statement were threatening and calculated to coerce employees. AMENDED CONCLUSIONS OF LAW Substitute the following for paragraph 3 of the Ad- ministrative Law Judge's Conclusions of Law: "3. By threatening plant closure at its Kosciusko plant on October 2 and 23, 1973, by interrogating its employees concerning their union membership, sym- pathies, and desires on various dates in October 1973 at its Starkville, Kosciusko, and Lambert, Mississip- pi, plants, and by singling out prounion employees on October 29 and 30, 1973, at its Starkville, Missis- sippi, plant by calling them out from the midst of their coworkers to attend meetings in the plant manager's office and conducting those meetings in a manner reasonably calculated to deter employees from supporting a labor organization , Respondent has violated Section 8(a)(1) of the Act." Substitute the following for paragraph 6 of the Ad- ministrative Law Judge 's Conclusions of Law: "6. The allegation of the complaint that Respon- dent violated Section 8(a)(1) of the Act by granting a wage increase on October 2, 1973, in order to induce its employees not to support a labor organization has not been sustained." 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 Respondent , Starkville, Inc.; Hillsdale Manufacturing Corporation; and Lambert Mills, Inc., wholly owned subsidiaries of Garan, Inc., their officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Insert the following as paragraph 1(c) and relet- ter the subsequent paragraphs accordingly: "(c) Threatening employees with plant closure if they select a labor organization as their bargaining representative or otherwise support it." 2. Substitute the following paragraph for the para- graph which begins with "IT IS FURTHER ORDERED:" "IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein." 3. Substitute the attached notice for the Adminis- trative Law Judge's notice. IT IS FURTHER ORDERED that the election held at the Kosciusko plant on December 7, 1973, be, and it STARKVILLE, INC. 597 hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBER KENNEDY, dissenting in part : I concur with the majority decision except insofar as it adopts the Administrative Law Judge 's finding that Respondent violated Section 8(a)(1) by Stark- ville Plant Manager Johnson's method of arranging meetings with avowedly prounion employees and the manner in which he conducted those meetings. Employees Robinson, Harris, Bishop, and Sanders signed a union letter which informed Respondent that they had signed cards for the Union and that they would be active in the Union's organizational effort. Upon receipt of this letter, Plant Manager Johnson summoned the named employees to his of- fice and in the presence of the plant 's personnel man- ager and the immediate supervisors of the employees read them the following statement: I have received this letter from Mae Blair advis- ing me that you are for the union, that you have signed a card and will be active in the organiza- tion of a union here in the plant . That is your privilege. I want you to understand that while you are here working, that you are not to engage in so- licitations of any kind which interfere with your work or anyone else's work. Signing a union card and actively supporting the union does not grant you any special privileges. You are still expected to perform your job here in the usual manner. You have the right to go to union meetings, to sign union cards, etc., but we still expect you to obey our supervisors and our plant rules. As he finished each reading, Johnson turned to the employees' supervisor and said, sternly, "Get her out of here." In the case of the separate interview with employee Robinson, when Johnson invited her to sit down she refused and sneered at him. He then or- dered her to sit and she did . In her case, he added to the third paragraph of the statement , "I'll tell you one damn thing, signing a union card and actively supporting the union does not grant you any special privileges." In finding that by the foregoing conduct Respon- dent violated Section 8(a)(1), the Administrative Law Judge relied on Greenfield Manufacturing Company, 199 NLRB 756 (1972). In Greenfield, the respondent summoned employees named in a union telegram as members of an organizing committee to a meeting and warned them of disciplinary action if their orga- nizing activities interfered with their own work or the work of others. The Board found that the method of arranging the meeting and the conduct thereof vio- lated Section 8(a)(1). The present case is distinguish- able from Greenfield Here the statement read to the employees not only warned them against engaging in organizing activities on company time, but it also as- sured them of their right otherwise to engage in law- ful activity. The statement read to the employees was clearly privileged under Section 8(c) of the Act. I do not believe that the method of assembling employees in order to read to them a lawful statement of their rights and duties rendered the entire procedure coer- cive and unlawful under Section 8(a)(1). See Luxuray or New York Division of Beaunit Corporation. 185 NLRB 100 (1970). Accordingly, I would not adopt the Administrative Law Judge's finding of an 8(a)(1) violation based on such meetings. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by dis- charging employees and discriminating against them in another way for engaging in union activities, we hereby notify you that: The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a represen- tative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT single out those of you who are prounion by calling you out from the midst of your coworkers to attend a meeting in the plant manager's office and conduct those meetings in a manner reasonably calculated to deter you from supporting a labor organization. WE WILL NOT threaten you with plant closure if you select a labor organization as your bargain- ing representative or otherwise support it. WE WILL NOT interrogate you concerning your union membership, sympathies, or desires. WE WILL NOT discharge you for engaging in union activities. WE WILL NOT refuse to permit those of you who are prounion to participate in taking inven- tory because of your union activities. WE WILL NOT, in any like or related manner, 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interfere with you or attempt to restrain or coerce you in the exercise of the above rights. WE WILL offer Brenda Purnell and Andrew Gordon immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any earn- ings they lost, plus interest, as a result of their discharges on September 24 in Starkville, Missis- sippi, and October 4, 1973, in Lambert, Missis- sippi, respectively. WE WILL make whole all those employees to whom we denied an opportunity to participate in the taking of inventory at Kosciusko on Octo- ber 1, 1973, because of their union activities, in- cluding but not limited to Minnie Atterberry, Floyce Ellington, Nell Wasson, Betty Wasson, Beatrice Rosomond, Linda Melton, and Nina Christine Allen, for earnings they lost, plus in- terest, as a result of the discrimination against them. All our employees are free, if they choose, to join Amalgamated Clothing Workers of America, AFL- CIO, or any other labor organization. STARKVILLE, INC.; HILLSDALE MANUFACTUR- ING CORPORATION, LAMBERT MILLS, INC, WHOLLY OWNED SUBSIDIARIES OF GARAN, INC. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The original charge in Case 26-CA-4899, the first charge against the Garan plant located in Starkville, Mississippi (Starkville, Inc.), was filed on October 17, 1973. 1 Addition al charges bearing the number 4899 and relating to Stark- ville and amended charges were filed thereafter. The origi- nal charge in Case 26-CA-4908, the first charge against the Garan plant in Kosciusko, Mississippi (Hillsdale Mfg. Corp.), was filed on October 24. Additional charges bear- ing the number 4908 and relating to Kosciusko and amended charges were filed thereafter. On December 7 a consolidated complaint was issued in the 4899 and 4908 cases. The complaint was captioned "Garan, Inc. and Gar- an, Inc. (Saddlebrook Division)." The charge in Case 26-CA-4922, the only charge against the Garan plant located in Lambert, Mississippi (Lambert Mills, Inc.), was filed on November 9 and amended on November 15. On December 18 the Regional Director issued his Sup- plemental Decision and Order in Case 26-RC-4631. The petition in that case had been filed on September 25. The Regional Director directed an election in a unit of produc- tion and maintenance workers at the Kosciusko plant on 1 Dates are 1973 unless otherwise indicated. November 7, and the election was held on December 7. The result was a 62-158 defeat for the Union. The Union filed objections which were substantially the same as the unfair labor practices charged in 4908 series of cases. Con- sequently, the Regional Director, in his Supplemental De- cision, ordered Case 26-RC-4631 consolidated for hearing with Cases 26-CA-4908, 4908-2, and 4908-3. A second consolidated complaint, the one on which hearing was finally held, was issued on January 3, 1974, and amended at the hearing. It brought together the 4899 series of cases, the 4908 series of cases , Case 26-CA-4922, and Case 26-RC-463 1. At the opening of the hearing, held in Kosciusko on February 12, 13, 14, 15, 27, and 28 and March 1, 1974, I granted the General Counsel's motion to amend the caption of this complaint from "Garan, Inc." to the names of the three plant corporations as wholly owned subsidiaries of Garan. Since no distinction was made dur- ing the hearing between the four separate corporate enti- ties, since Respondent did not retract the admissions in its answer as to the facts and conclusions in the second con- solidated complaint on which the General Counsel's claim of jurisdiction over Garan is based, and since counsel sti- pulated, for purposes of this proceeding only, that the four corporations are a single employer within the meaning of the Act, that they are referred to indiscriminately herein as "Respondent." The complaint alleged violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. An alleged independent 8(a)(1) violation predicated on a wage increase granted by Respondent on or about October 2 applies to all three plants. Allegations of independent 8(a)(l), as well as 8(a)(3), violations at each of the plants are included in the complaint . During the hearing, I grant- ed the General Counsel's motion to delete one of the two names-James Martin-appearing in the paragraph which alleges 8(a)(3) violations by discharges at the Lambert plant. The principal issue litigated was Respondent's mo- tive for the 11 discharges still in the complaint. For the reasons set forth below, I find Respondent committed some, but not all, of the violations alleged in the second, amended, consolidated complaint. (The General Counsel's Motion to Correct Record is hereby granted.) Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Garan, a corporation which owes its existence to the law of some State not specified in the complaint, is engaged in business in the State of Mississippi at various plants, in- cluding the three located at Starkville, Kosciusko, and Lambert which are involved in this proceeding. During the year just prior to issuance of the second, amended, consoli- dated complaint it received at each of those three plants materials valued in excess of $50,000 which were shipped directly to them by suppliers located outside the State of Mississippi, and shipped from each of those three plants products valued in excess of $50,000 directly to customers located outside the State of Mississippi. STARKVILLE, INC. 599 II. THE UNFAIR LABOR PRACTICES A. The Alleged 8(a)(1) Violations 1. Respondent's response to the organizing campaign Respondent operates approximately 16 plants, a number of them in Mississippi. Around the last week in June, the Charging Party began a campaign to organize some of the Mississippi plants by assigning an organizer to Respondent's plant in Philadelphia, Mississippi. While this organizer managed to obtain some cards from Philadelphia employees in July, campaign activity was minimal until the Charging Party assigned Danny Forsyth to organize Respondent's Kosciusko plant in the last week in August. Thereafter, it assigned organizers to Respondent's plants in Lambert, Eupora, Starkville, and Carthage, the last being assigned to Carthage around September 12. The record does not reveal the name of the organizer assigned to Lam- bert. The assignment was made in early September. Mae Blair was assigned to Starkville in early September. No charges of unfair labor practices by Respondent have been filed in connection with the Charging Party's efforts to or- ganize the Philadelphia, Eupora, or Carthage plants. The only petition for an election which has resulted is the one at Kosciusko involved in this proceeding. In Koscisuko, Forsyth obtained some authorization cards 2 before holding a meeting of employees on the eve- ning of Tuesday, September 4. Respondent first learned of the Charging Party's Mississippi campaign the next morn- ing when Alice Payne, plant personnel manager, told Al- ston Willette, plant manager, there were authorization cards in the Kosciusko plant. Acting pursuant to his stand- ing instructions to report all union activity in his plant without delay, Willette immediately telephoned Howard Weliver, Respondent's director of personnel, at corporate headquarters in Starkville. Willette then launched Respondent's campaign to resist the Charging Party's ef- forts to organize its Mississippi plants. On September 5 Willette addressed the employees in the Kosciusko plant on the subject of the Union. He pointed 2 In their briefs, both Respondent and the Charging Party assert, on the basis of the following questions and answers in the testimony of James Jackson, manager of the Charging Party's Mississippi Joint Board, that For- syth had obtained cards from a majority of unit employees in the Kosciusko plant by the time he held his first meeting on September 4: Q. And how long did it take [Forsyth ] to get here? A. They got here the same day and three days later they had the majority of the cards.. . Q. And the majority of the cards were signed by when? A. The third day of the campaign. Q. Which was when? A. Which would have been about the end of August. I do not interpret this testimony that way All the words imply is that by September 4, Forsyth had more than half of the total number of cards his campaign ultimately produced , whatever that total may have been. In this regard, it is significant, I think, that only the Charging Party has sought to invoke the Gissel doctrine (N.L R.B. v. G,ssel Packing Co, Inc, 395 U.S. 575), asking for a bargaining order as a remedy for 8 (aX3) violations. The General Counsel does not assert that the Charging Party managed to sign up a majority of unit employees in Kosciusko nor did he made any use of authorization cards as evidence for any purpose. None of the Kosciusko employees called as witnesses by the General Counsel testified that she signed a card prior to the September 4 meeting. out, first, that the Charging Party represented only one of Respondent's plants, the one located in Adamsville, Ten- nessee, and that the only difference between wages and benefits in Adamsville and in Kosciusko was the fact that Adamsville employees had health insurance coverage through the Charging Party's insurance company while Kosciusko employees were covered through New York Life. He said, second, that unions do not guarantee job security, only efficient operations that lead to profits do. In this context, he referred to a plant in Hamilton, Mississip- pi, which had gone out of business after the employees voted for a union because it was not profitable. He pointed out that signing an authorization card for the Charging Party was like signing a blank check because the front of the card authorized withholding of monies due the Charg- ing Party according to a schedule set forth on the back of the card, and the back of the card which the Charging Party was using in its campaign was blank. He said, finally, that, in the event union and company fail to agree, 'a union has only the strike weapon in its arsenal and striking em- ployees do not get paid. Later that day, Willette held a meeting of all his supervi- sors. He asked them what they knew about the seriousness of the situation, and if the cards which had shown up in the plant represented a full blown organization campaign or merely a manifestation of some minor discontent among the employees. He ordered them to report immediately any organizing activities they observed in the plant. He told them to refer all questions from employees about the situa- tion to him or to Roy Bennett, plant production manager. He instructed them to talk to all employees under them immediately in an effort to persuade them not to support the Charging Party, cautioning the employees that work- time was for work and not for union activities and reiterat- ing the four points he had made earlier that day. The su- pervisors carried out Willette's instructions, talking to all employees in the Kosciusko plant either on September 5 or 6. Chronologically, the activities of one supervisor form the basis of the earliest unfair labor practice in the complaint. The complaint alleges that "during the week of Septem- ber 4, 1973 . . . Beverly Ryles . . . threatened . . . em- ployees with a layoff if . . . employees selected the Union as their bargaining representative or otherwise supported the Union." In support, the General Counsel offered the testimony of Geraldine Stephens, one of the alleged dis- criminatees at the Kosciusko plant, that Mrs. Ryles, her supervisor, came to her and said "that if anybody asked us to sign a card, not to because it will cause laying off and sometimes they would have you paying as much as $30 for union dues and something." Because Mrs. Ryles struck me as too intelligent a woman to depart so egregiously from the instructions she had just received from Willette about what she should say to the employees under her supervi- sion, I do not credit Miss Stephens' version. Rather, I find that, when Beverly Ryles, supervisor of assembly II in the Kosciusko plant, spoke to Geraldine Stephens and other employees about the Union on September 5 and 6, she said, "I'd like to talk to you about the Union. First of all, the Garan plant at Adamsville has a union, but it doesn't have any better benefits than we have here and the wages aren't any more; the union went in at Hamilton and the 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant closed; when you sign a union card it's the same as signing a blank check; and if the union goes in, there is a possibility of being called out on strike." There is in these words no threat of layoff-either express or implied-in reprisal for employee support of the Charging Party. The basic antiunion argument adopted by Willette in his speech to the employees on September 5 and reiterated thereafter by Beverly Ryles and, presumably, other supervisors falls well within the limits of Section 8(c) of the Act. I find, therefore, Respondent did not violate Section 8(a)(l) of the Act by any conduct which might be held to fall under this allegation of the complaint. The second of a long series of employee meetings called by the Charging Party in Kosciusko was held on Tuesday, September 11. During the meeting, Forsyth asked the em- ployees if they would like to "make company knowledge" by informing Respondent of their support for the Union. Thirty-eight employees thereupon signed a document which reads, "We the following employees have signed union cards, and attended union meetings and are active in the organizing campaign for the Amalgamated Clothing Workers of America AFL-CIO 15 Union Square New York, New York 10003." All six of the employees alleged to have been discriminatorily terminated (Geraldine Ste- phens, Shirley Vowell, Pearlean Cummins, Minnie Atter- berry, Alice Fondren, and Nina Christine Allen) and all six of the employees alleged to have been discriminatorily de- nied extra work at inventory time (Minnie Atterberry, Floyce Ellington, Nell Wasson, Betty Wasson, Beatrice Rosomond, and Linda Melton) were among the 38 who signed. Forsyth mailed the document to Willette at the Kosciusko plant with a covering letter on September 12. Willette received it on September 13. Meanwhile, Pearlean Cummins, Floyce Ellington, and Beatrice Rosomond decided not to wait for Forsyth's letter to "make company knowledge" for them. On the morning of September 12 they went together to the office where they spoke to Alice Payne, plant personnel manager, John A. (Andy) Carter, regional personnel manager with respon- sibility for the Kosciusko and Starkville plants, among others, and Dot Vowell, quality control supervisor. Miss Rosomond announced that all three of them had signed union cards and attended union meetings and were for the Union. Carter told them he thought they were making a mistake. Mrs. Ellington said everybody was entitled to his own opinion. Carter asked them if they had heard what Willette had said about signing union cards, an allusion to Willette's remarks about signing a blank check in his Sep- tember 5 speech. One of the three women simply repeated that they only wanted to let the Company know they were for the Union. On that note they left the office. Again, Willette immediately telephoned the personnel department in Starkville and reported Cummins', Ellington's, and Rosomond's visit to the office. He was instructed to speak to each of them about their rights and obligations. The precise words he was to use were dictated to him over the telephone. He then went to the work sta- tion of each of the three women and read them Respondent's message individually? He told each that she had come to the Company and told the Company she was active on behalf of the organizing effort by the Amalga- mated Clothing Workers, that he wanted her to understand that was her privilege, that she had every right to do it just as long as it was not on company time, that she was subject to the same rules and regulations as all the other employ- ees, and that, if the Company had any disciplinary problem with her, she would be subject to dismissal the same as any other employee, her union activities notwithstanding. When Willette received the Charging Party's company knowledge letter on September 13, he reported it to Stark- ville at once. As instructed by Starkville, he relayed the same message to all 38 employees named in the letter, in- cluding Cummins, Ellington, and Rosomond, on Septem- ber 14. This time he had the employees summoned individ- ually from their work stations to his office where he read the message to them. Robert Johnson, manager of the Starkville plant, learned of union activity in his plant after September 14 and before September 21.4 Respondent, in the person of Johnson, is charged with violations of Section 8(a)(1) as the result of its response to an effort to "make company knowledge" at Starkville similar to what occurred on September 14 at Kosciusko. This episode began when, on October 24 and 25, Cloteria Robinson, Mary Ann Harris, Olivia Bishop, and Macie Sanders signed a document which reads, "We the undersigned employees of Garan in Starkville Missis- sippi wish to advise you that we have signed union cards with the Amalgamated Clothing Workers of America, AFL-CIO and will be active in support of the organization of the union in the Garan plant." Mae Blair, the Charging Party's Starkville organizer, mailed it, with a covering let- ter, to Johnson on October 25. He received it on Monday, October 29. Johnson, whose standing instructions were the same as Willette's, reacted as Willette had reacted. He consulted the personnel department. He was instructed by Andy Car- ter to read a message furnished by Carter to each of the employees who had "made company knowledge." On Oc- tober 29, he summoned Mary Ann Harris, Olivia Bishop, and Macie Sanders to his office and read to them, "I have received this letter from Mae Blair advising me that you 3 While the witnesses do not agree as to the words spoken by Willette in response to the Charging Party's efforts to "make company knowledge" in Koscisuko on September 12 and 14, and by Robert Johnson, manager of the Starkville plant, when the same situation arose in Starkville on October 29 and 30, there is no real dispute as to the substance of what was said. The only serious conflict is over whether Willette and Johnson read or spoke extemporaneously. I find they read and deviated from the statements fur- nished to them by higher management only to the extent admitted by John- son (see below). Respondent is obviously too large a company and too sophisticated in its labor relations to let supervisors at the plant manager level fall into the trap of saying things which cannot be documented in the event employees' recollection of what was said to them leads to unfair labor practice charges. Moreover, I was impressed by the candor of Pearlean Cummins who, unlike the General Counsel's other witnesses, frankly admit- ted that Willette read to her on September 14. 4 The record does not reveal the exact date . I credit Johnson's testimony that he was not aware that the campaign had begun in his plant at the time Essie Young was transferred from cuff set to embroidery on September 14 (see section on the discharge of Carolyn Dawson below). He admitted that he received a report on the union activity which occurred in a ladies room in the plant on September 21, an incident which underlies all four of the dis- charges alleged as unfair labor practices at the Starkville plant (Brenda Purnell, Carolyn Dawson , Cloteria Robinson, and Rose Elliott). STARKVILLE, INC. 601 are for the union, that you have signed a card and will be active in the organization of a union here in the plant. That is your privilege. "I want you to understand that while you are here work- ing, that you are not to engage in solicitations of any kind which interfere with your work or anyone else's work. "Signing a union card and actively supporting the union does not grant you any special privileges. You are still ex- pected to perform your job here in the usual manner. "You have the right to go to union meetings, to sign union cards, etc., but we still expect you to obey our super- visors and our plant rules." Louise Johnston, plant personnel manager, and Liz Ed- wards, the immediate supervisor of the employees, were also present. As he finished each reading, Johnson turned to Liz Edwards and said, sternly, "Get her out of here." Johnson posted Mae Blair's October 25 letter and his state- ment to employees named in it on the plant bulletin board on October 29. Cloteria Robinson was absent on October 29. Therefore, Johnson had her brought to his office in the same manner for the same purpose on October 30. Louise Johnston and Mary Young, Mrs. Robinson's immediate supervisor, were also present. When Mrs. Robinson entered the room she refused Johnson's invitation to sit down and sneered at him. Johnson ordered her to sit, and she did. Johnson then read her the message he had read to the three other em- ployees the day before. This time, however, he added em- phasis by inserting some profanity into the third para- graph. He said, "I'll tell you one damn thing, signing a union card and actively supporting the union does not grant you any special privileges." He ended the interview with a brusque "That's it." The complaint alleges this episode violated Section 8(a)(1) of the Act because Johnson "summoned prounion employees from their work stations to attend individual exclusive meetings to lecture to them solely about plant rules and penalties for violations." There is nothing anti- thetical to the Section 7 rights of employees in the actual content of Johnson's message. However, prounion employ- ees were singled out by calling them out from the midst of their coworkers to attend a meeting in Johnson's private office, the locus of managerial authority in the plant. Johnson's demeanor was such, given his authority over them and the place to which they had been summoned, as to be expected to induce fear in them under any reasonable man standard. I find, therefore, Respondent violated Sec- tion 8(a)(1) of the Act on October 29 and 30 by Johnson's method of arranging meetings with avowedly prounion em- ployees and the manner in which he conducted those meet- ings. Greenfield Manufacturing Company, a Division of Kell- wood Company, 199 NLRB 756 (1972).5 On the second day of the hearing I inquired of General Counsel why the complaint did not allege the similar epi- 5 Greenfield is distinguishable from this case by the fact that there the regional manager "made no allusion whatsoever to the employees' protected organizational rights and Respondent's correlative obligations under the Act." However, in finding an 8(a)(1) violation in a situation otherwise iden- tical with this one, the Board did not indicate that its decision turned on that fact. sode at the Kosciusko plant as a violation of the Act. His reply was, "Your Honor, we will say that there weren't any specific penalties set forth specifically to these people that you don't get any special privilege or don't have to obey rules. There will be any specific penalty to them. The way it came to our attention in this was there was not any spe- cific-during a group meeting-there wasn't any specific thing told to them, that they would be penalized." Later that day I denied the General Counsel's motion to amend the complaint to add such an allegation on the ground it would be a denial of due process to Respondent to grant it when the idea had originated with me. In his brief, the General Counsel has renewed his motion, arguing that no prejudice will result to Respondent because the issue was fully litigated at the hearing and Respondent was properly apprised at that time that the General Counsel claimed a violation based on Alston Willette's activities at Kosciusko on September 12 and 14. I disagree. I hereby reaffirm the ruling I made at the hearing. At its top management level, Respondent was not reluc- tant about getting its antiunion message across to all its employees after September 4. Following receipt of the peti- tion for an election in the Kosciusko plant in late Septem- ber, Willette, the plant manager, met with Howard Weliv- er, corporate personnel director, and Rodney Faver, manufacturing manager with responsibility for Kosciusko as well as other plants, in Starkville on at least two occa- sions to plan Respondent's strategy. Weliver actually ran Respondent's campaign. Willette continued to discuss the subject with his supervisors at their regular meetings. He got from them questions which employees had asked the supervisors about the Union. He relayed the questions to Starkville and relayed Starkville's answers to the employees through his supervisors. In early October, Perry Mullen, Respondent's vice president in charge of manufacturing, made a speech to employees. Incidents which are alleged in the complaint as 8(a)(1) violations by lower-level supervi- sors occurred in this context. An allegation that Respondent, in the person of Ricky Davis, finishing foreman in the Kosciusko plant, threat- ened plant closure on October 2 is predicated on the un- controverted testimony of Robert Dickens, a leg presser in the finishing department. Davis talked to Dickens at the latter's work station. Davis asked Dickens what he thought about the Union. Dickens said he did not know. Davis said that Respondent could not pay $3 or $4 an hour, "like Superior." The allusion was to a manufacturer of school buses located in Kosciusko whose employees get wages in that range under the terms of a contract with the United Steelworkers of America. Davis said, "They [ i.e., Respon- dent] couldn't afford to pay that, and, before they would pay, they would close." These words constitute a pre- diction of a possible consequence of unionization and not a threat of reprisal in the event employees opt for union rep- resentation. I find, therefore, Respondent did not violate Section 8(a)(1) of the Act on October 2 by threatening its employees with plant closure if they selected the Union as their bargaining representative. A similar violation on October 23 is attributed to Roy Bennett, production manager in Kosciukso, and Paul New- ell, cutting room foreman. It is predicated on the uncontro- 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD verted testimony of John Albert Hood, a patternmaker in the Kosciusko plant. On that occasion, Hood got involved in a long discussion with Bennett in the area where Hood worked about the pros and cons of unionism . Newell joined them sometime after the conversation began and participated in it . The thrust of the discussion was Bennett and Newell trying to convince Hood that his own best in- terest lay in reliance on himself while Hood tried to con- vince them that employees could protect themselves against mistreatment by banding together. At one point, Bennett said the Kosciusko plant was losing money and added "that if the union went in, it would cause further losses from strikes and so on, disturbance in the work; that they-if they kept losing money, that would make them lose more money. They would close the doors." Once again, a prediction and not a threat. I find, therefore, Re- spondent did not violate Section 8(a)(1) on October 23 by threatening plant closure in the event its employees select- ed the Union as their bargaining representative. Cf. Versa- tube Corporation, 203 NLRB 456 (1973). Other allegations of 8(a)(1) violations by lower-level su- pervisors are couched in terms of interrogation of employ- ees concerning their union membership, sympathies, and desires. The earliest such incident took place at the Lam- bert plant on October 3. Sally McArthur, a supervisor in the sewing room, approached Margie Gillmore, one of the operators who worked under her. She came to Mrs. Gillmore's machine and said she wanted to talk to her. Mrs. McArthur said she was against having a union at Garan and she would fight it with everything she had 100 percent. She asked Mrs. Gillmore if there was anything she wanted to say on the subject. Mrs. Gillmore said, "No, I don't have anything to say." There is nothing of an interro- gatory nature about this exchange. Mrs. McArthur was simply expressing her opinion about the Union to Mrs. Gillmore, something she had a legal right to do. The fact that she gave Mrs. Gillmore an opportunity to respond does not establish a clever effort to ascertain Mrs. Gillmore's views illegally. The fact that Mrs. McArthur said she was totally opposed to the Union does not make her words coercive. Cf. Greenwood Mills, 210 NLRB 75 (1974), and Mississippi Extended Care Center, Inc., d/b/a/ Care Inn, Collierville, 202 NLRB 1065 (1973). An incident at the Starkville plant on October 12 involv- ing a supervisor named Joy Murphy poses the only credi- bility conflict between a supervisor who allegedly interro- gated an employee and the employee involved in the conversation. Mrs. Murphy's version of her conversation with Betty Hollingshed agrees with Mrs. Hollingshed's in broad outline. The conversation took place shortly after Perry Mullen, Respondent's vice president, had spoken to the employees and began, both women agree, when Mrs. Murphy asked Mrs. Holhngshed what she thought of his speech. Mrs. Murphy's version denies that she left Mrs. Hollingshed and then returned to continue the conversa- tion. More importantly , it omits the element of interroga- tion about Mrs. Hollingshed's union activites. Since both versions demonstrate that Mrs. Murphy was trying to carry out the sort of role Respondent assigned to its lower-level supervisors in its antiunion campaign, as demonstrated by Plant Manager Willette's instructions to his supervisors in Kosciusko, I am persuaded that Mrs. Murphy, in an excess of zeal, went beyond the point Respondent intended. Therefore, I credit Mrs. Hollingshed over Mrs. Murphy. Mrs. Murphy stopped by Mrs. Hollingshed's press and asked her if she had heard Mullen's speech and what she thought about it. Mrs. Hollingshed said she did not think anything about it. Mrs. Murphy left and returned a few minutes later. She said she wanted to explain to Mrs. Hol- lingshed about the Union. She said that if the Union came into the plant and Mrs. Hollingshed went out on strike she would be replaced. Mrs. Murphy asked Mrs. Hollingshed if anyone had been to her house trying to get her to sign a union card. Mrs. Hollingshed said no. Mrs. Murphy said there would be and Respondent did not want her to sign a card. Mrs. Murphy then said that, if there was anything Mrs. Hollingshed did not understand about a union, she should come to Mrs. Murphy; if Mrs. Murphy did not know the answer, she could find someone that did. Mrs. Murphy ended by pointing out that she had worked there for 10 years and Garan had been good to her. Here, unlike the McArthur-Gillmore conversation at Lambert on October 3, Mrs. Murphy did question Mrs. Hollingshed about whether she had signed an authoriza- tion card without any legal right to seek that information and without giving her the assurances against reprisals re- quired to make such a question noncoercive in those situa- tions where an employer does have a legal need to know. Moreover, Mrs. Murphy's question about Mullen's speech invited Mrs. Hollingshed to express how she felt about the Union under circumstances where the employee involved was not an avowed union supporter, the question was not intended or taken as a joke, and Respondent was hostile to the Union. Therefore, a violation of Section 8(a)(1) oc- curred on this occasion. Greenwood Mills and Mississippi Extended Care Center, supra. Another incident took place at Starkville on October 23 when Jackie Miller, a cutting department supervisor, asked Linda Johnson, a bundler, whether anybody from the Union had come to her house while she had been on layoff. (A number of employees at the Starkville plant were laid off on Friday, September 28, and returned to work on Monday, October 22.) The first of the two principles that govern with respect to the Murphy-Hollingshed conversa- tion on October 12 (i.e., the seeking of information about an employee's union activities where there is no need to know) applies here. Respondent also violated Section 8(a)(1) of the Act on this occasion. Blue Flash Express, Inc., 109 NLRB 591 (1954); Struksnes Construction Co., Inc., 148 NLRB 1368 (1964). Two episodes of allegedly illegal interrogation occurred at the Kosciusko plant. Both are predicated on the uncon- troverted (although somewhat confused) testimony of Bes- sie Hollie, a sewing machine operator. On October 19 (i.e., after a petition for an election at the Kosciusko plant had been filed but before an election had been ordered), Sue Hutchison, a supervisor, asked Mrs. Hollie whether, if it came to a vote, she would vote no. Mrs. Hollie did not reply. On October 22, Roy Bennett, the plant production manager, advised Mrs. Hollie not to vote for the Union, adding, "if you vote for the Union, I think you would be making a mistake." Mrs. Hollie said she was going to vote STARKVILLE, INC. 603 no if it ever came to a vote. Mrs. Hutchison asked a ques- tion. Bennett declared an opinion by giving unsolicited ad- vice. However, in both instances Respondent's supervisor invited Mrs. Hollie to express how she felt about the Union. Like Mrs. Hollingshed at Starkville, Mrs. Hollie was not an avowed union supporter. (She was not among the 38 Kosciusko employees who signed the document mailed to the Kosciusko plant on September 12 in order to "make company knowledge.") Mrs. Hutchison's question and Bennett's advice were not intended or taken as a joke. Respondent was hostile to the Union. Therefore, the Act was violated on each occasion. Greenwood Mills and Mis- sissippi Extended Care Center, supra. In summary, I find Respondent violated Section 8(a)(1) of the Act by interrogating employees about their union membership, sympathies, and desires on October 12, 19, 22, and 23, but not on October 3. 2. The wage increase a. Facts The sequence of events which led up to the granting of a systemwide raise by Garan effective October 2 is essential- ly undisputed. (All 16 plants got the raise except the one in Adamsville, Tennessee, where a collective-bargaining agreement precluded any such unilateral action by Re- spondent.) Most of Respondent's production employees are on a piece rate, incentive pay system. Prior to October 2, the base rate was $2 an hour, i.e., an employee who earned $2 or more an hour on an average weekly earnings6 basis was a fully productive or "production" operator. The minimum or entry rate was $1.60 an hour, i.e., an employee who earned more than $1.60 an hour but less than $2 an hour on an average weekly earnings basis was a "substan- dard" operator, and one who earned less than $1.60 an hour so that Respondent had to pay her the difference between her actual earnings and $1.60 an hour in any given week was a "problem" operator. (The essential element in the granting of a raise under an incentive system is, of course, an increase in piece rates. The record is unclear on precisely when Garan raised its wage structure to the $2-$1.60 an hour level. Apparently it occurred in March or April 1972. In any event, there is no claim and no indi- cation that the raise on October 2 which underlies this alle- gation of the complaint fell into any established pattern of raises granted at regular intervals by Respondent.) Respondent has four manufacturing managers each of whom is directly responsible for a number of plants. They confer from time to time . The subject of a raise first came up in February or March. At that time, the manufacturing managers were considering improving Respondent's vaca- tion plan by adding a third week, a benefit which was im- plemented in March. In that context, they first discussed whether, in view of inflation, its consequent effect on 6 "Average earnings" is a figure which has great significance for each employee who is paid on the incentive plan rather than hourly. It is comput- ed each week on the basis of the 4 weeks immediately prior. It has various uses, such as computation due the employee for short periods of machine downtime. Respondent's ability to retain employees as wages escalat- ed in the communities where Respondent's plants. are lo- cated, and suggested legislation which would increase the Federal minimum wage above the $1.60-an-hour rate which then prevailed, it was time for Respondent to grant a raise. At a subsequent meeting in April, they set in motion the events which culminated on October 2 by asking How- ard Weliver to conduct a wage survey. Weliver initiated the survey around May 1 by circularizing approximately 30 companies in areas where Respondent has plants. In this same period Respondent began taking the possi- bility of a raise into account in its on-going operations in another significant way. Respondent annually produces a fall line and a spring line of garments ; i.e., garments de- signed to be sold at retail in the fall or the spring. Respon- dent designs and merchandises its fall line in the preceding winter and spring. It designs and merchandises its spring line in the preceding summer and fall. Production then takes place after salesmen have obtained orders based on samples of the garments Respondent is offering to the trade in time to place the fall line in Respondent custom- ers' stores by late summer, and the spring line by later winter. At the time the manufacturing managers first began considering the possibility of a wage increase, Respondent's designers were just beginning to go to work on the spring 1974 line. Since any raise which might be ordered would, obviously, first affect the price at which Respondent would offer its spring 1974 line (prices of the fall 1973 line were already set and much of the production of that line already contracted for), manufacturing manag- ers and plant managers began in late June and early July revising spring 1974 cost sheets already sent to designers and merchandisers headquartered in New York. The re- vised cost sheets reflected the possibility that labor costs would be higher then those currently in effect. On July 12, Weliver sent the manufacturing managers and their immediate superior, Perry Mullen, a memoran- dum detailing the results of his wage survey. It said, in pertinent part, "This survey does point out the need for adjustments in some of our rates, especially those in the office.... All of us realize there will be a minimum wage change coming up this fall either to $1.90 or $2.00, but the problem in the office is with us today, as we get people with more experience in these jobs. I would like to recom- mend that we reevaluate the office jobs and also jointly consider the possibility of installing the new base rate be- fore we are forced to do so this fall." (In late July, House and Senate conferees agreed on a bill to boost the basic Federal minimum wage to $2 an hour, effective-October 1.) The manufacturing managers asked Weliver to summar- ize his data in a different format. He did so in a memoran- dum dated July 24. He suggested a meeting on July 30 "to discuss this situation. We will need to establish a recom- mendation for a base rate, indirect guidelines and be pre- pared to make representative cost sheets reflecting these changes." Weliver met with Mullen, the four manufactur- ing managers, and Respondent's chief engineer on July 30. They discussed various possibilities, including shifting to a variable base rate, without coming to any conclusion about how big a raise or what manner of raise should be given. As a result of this meeting , engineering studies, which must 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD precede the establishment of new piece rates and which had been started in July, were accelerated. Respondent held a plant managers meeting in Biloxi, Mississippi, on August 30 and 31 . A wage increase was among the subjects discussed. The manufacturing manag- ers asked the view of the plant managers as to the need for a raise and what form it should take . Unions were also discussed, including the Charging Party. However, there was no discussion of the one subject in connection with the other. The fact that there was union activity in the Phila- delphia, Mississippi, area at that moment was mentioned, although the fact that the Charging Party had started an organizing campaign at Respondent's Philadelphia plant was not. The sense of the conference was that a raise was needed. The plant managers were told that it would be expedited. (The Federal minimum wage bill was passed by Congress and sent to the White House around the time of the Biloxi conference. President Nixon vetoed it on Sep- tember 6.) Weliver, Mullen, and the manufacturing managers final- ized the raise in the form and at the level which ultimately became effective on October 2 when they decided, in the week following the Biloxi conference , what to recommend to top management . This was the week in which the Charg- ing Party held its first organizational meeting in Kosciusko, the first overt union activity in any of the plants involved in this proceeding, and the week in which Respondent first became aware of union activity in any of those plants.? They decided that they would not shift from a single to a variable base rate. They decided that the base rate would be increased from $2 to $2.20 an hour and the minimum or entry rate from $1 .60 to $1.90. They decided that hourly paid employees would get raises of approximately 20 cents an hour. They decided that the raise would take effect without delay, i.e., just as soon as the necessary work re- quired to compute and circulate the higher piece rates im- plicit in a raise of this size could be completed . During the second week in September, the manufacturing managers went to New York where they met with Respondent's top management, i.e., its president, group vice president, and vice president in charge of finance. They made their rec- ommendation. It was adopted. A target date of October 1 for implementing the decision was set . The Charging Party's campaign to organize Respondent's Mississippi plants did not come up at this meeting until after the final decision to grant a raise had been reached. As the other manufacturing managers were leaving the conference room, Rodney Faver, the manufacturing manager charged with responsibility for the Kosciusko plant, stayed behind 7 The question of precisely when Respondent became aware of the Charg- ing Party's activities at its plant in Philadelphia, a fact which is, I think, important to most of the discharges alleged in the complaint, is not impor- tant here. It is discussed in sec . B, 2, b, below. While Respondent does not admit it had knowledge of union activity in that sense at any particular moment in the sequence of events which led up to October 2, it readily concedes that it had knowledge of union activity at the moment when the manufacturing managers decided they would recommend a raise , the first moment when officials of Respondent with authority to resolve the question of whether a raise should or should not be granted reached a decision. The General Counsel does not claim Respondent's reactions were triggered by whatever happened in Philadelphia. Thus this issue does not turn on compa- ny knowledge. and reported that a campaign was underway in Kosciusko. The work necessary to implement the raise was done as quickly as possible. On October 1, plant managers were notified by telephone to inform their employees that a raise was being granted effective October 2 and what the new base, minimum, piece, and hourly rates were . Announce- ments to this effect were made in the Starkville , Kosciusko, and Lambert plants on October 2. b. Analysis and conclusions The complaint alleges Respondent violated Section 8(a)(l) of the Act when it "granted its employees a wage increase" at each of the plants involved in this proceeding "in order to induce its employees not to support the Union." The General Counsel does not contend Respon- dent only granted the October 2 raise because the Charging Party undertook to organize some of its employees. In the face of this record, such a contention would verge on the ridiculous. A raise of some type and size was obviously under serious study long before the Charging Party as- signed an organizer to any of Respondent's plants. The economic factors which compelled Respondent to grant a raise at that time in its own best interest , separate and apart from any problems organization of its Mississippi plant might add to its burdens, are beyond serious dispute. The state of the American economy in 1973, the infla- tionary spiral of wages and prices which made it difficult for any employer to attract and hold employees with mini- mal wages, the very real possibility that a change in the law would force an increase in Respondent's existing wage structure, all these factors preclude any finding that Re- spondent did not act from economic motives when it grant- ed a raise. Rather, the General Counsel contends that Re- spondent accelerated the raise for an illegal reason , arguing thus in his brief: Faver testified that October 1 was established as a tar- get date after the New York meeting . . . This newly prompted urge to move with the utmost of dispatch was surely motivated by some factor. In fact, the only new factor which arose between the August meeting in Biloxi, Mississippi, and the mid-September meeting in New York was the start of the union 's organizational campaigns at the Kosciusko , Lambert, Eupora, Stark- ville and Carthage, Mississippi , plants of Respondent .. It is also a matter of record that the petition for the representation election was filed by the Union on September 26, 1973, pertaining to the Kosciusko, Mis- sissippi, plant of Respondent. Counsel for the General Counsel submits that the immediate reaction of the Respondent was to hurried- ly accelerate the implementation of the six months old proposal to grant a general system-wide wage in- crease. The General Counsel can point to only two facts from which he would infer an antiunion motive for the time at which the raise was granted . The first is the fact that com- pany records of time spent by engineers on timestudies showed a marked jump in September over July and Au- gust. The second is that no decision was reached on when STARKVILLE, INC. 605 the raise would be granted until after the Charging Party's campaign heated up in August. Both are correct. However, both together are not sufficient to overcome the evidence which establishes the validity of Respondent's economic reasons for granting a raise on October 2 and not on some later date. The acceleration of engineering timestudies in September is as much evidence to support Respondent's argument that it decided around the time of the Biloxi meeting that a raise would be expedited for economic rea- sons as it is evidence to support acceleration for an anti- union motive. The urgency of Respondent's economic need for a wage raise is clear . Its implementing the decision to grant a raise as quickly as possible after final approval was granted by top management to show that the raise and the antiunion campaign were linked in the minds of Respondent's decision makers at any point in the events leading up to October 2, there is no basis for a finding that Respondent accelerated the raise "in order to induce its employees not to support the Union." Respondent would have granted its employees a raise on October 2 if the Charging Party had not been engaged in a campaign to organize its plants at that time. The fact that the Charging Party happened to be engaged in such a campaign at that time did not deter it from granting the raise. These two facts bring Respondent's wage increase squarely within the basic rule that an employer who has a change in employee benefits in the works when it becomes aware of its employ- ees' union activities interferes with their Section 7 rights only if it alters plans already in process , not if it carries them out as if no union activity had begun. I find, there- fore, the General Counsel has failed to prove by a prepon- derance of the evidence that Respondent violated Section 8(a)(1) of the Act on October 2 by granting a wage increase to its employees. Stumpf Motor Company, Inc., 208 NLRB 431 (1974), and cases cited therein. a certain operation or classification , the following will be the order for reducing the work force, assuming other factors such as absenteeism and tardiness are equal. 1. Problem Operators 2. Trainees 3. Substandard Operators 4. Production Operators These employees will be terminated for lack of work and their names removed from company records. (The term "laid off" should not be used in discussion with the employees and it should not appear on company records.) B. Affected employees should not be told that they will be taken back or that they will be called back at some future date . They should not be promised a job at some future time . They should be told that we will be glad for them to check with us from time to time and reapply for work. We should say that we will give every consideration to their prior experience and his- tory with the company. C. If we are sure that a particular termination for lack of work will be temporary and of short duration (less than one month) and we want the affected em- ployee back, we will notify him when to report back to work. This will be exceptional and great care will be taken before a situation is regarded temporary. D. Whenever there is insufficient work on a tempo- rary basis, it will be our policy to first check all em- ployees in the affected section to see if anyone would like to be off. If not, then Section II-C of this policy will apply and employees will be terminated according to Paragraph II-A. III. TRANSFERS-SENIORITY B. The Discharges 1. Facts Respondent's procedures with respect to seniority are set forth in a part of its "Employee Policy Manual" dated Au- gust 5, 1970. It reads, in pertinent part: GENERAL Reduction in work forces and reinstatement will be administered according to the procedures outlined be- low. PROCEDURES I. JOB CLASSIFICATION A. We will observe seniority by job classification or job operation. B. The date of hire or an employee will determine his seniority status in a job classification or job opera- tion. C. An employee may hold job classification senior- ity on more than one job when that job is seasonal. II. WORK FORCE REDUCTIONS A. If a reduction in the work force is necessary for B. Permanent Transfers 1. When and if a transfer becomes permanent for any reason, seniority will be handled in the follow- ing manner: a. When an employee permanently transfers from one job classification or operation to anoth- er job classification or operation, the employee will be listed at the bottom of that job classifica- tion or operation seniority roster. However, the employee will maintain his seniority in the opera- tion he transferred from until he completed the training curve on the new operation. b. The transferred employee will regain his date of hire seniority status in the new job classification or operation on the date he becomes a production oper- ator in the assigned job classification or operation. c. Any employee who is permanently transferred to a new job classification or operation and who cannot satisfactorily perform the operation after a fair trial period may be placed on her old opera- tion or trained on a new one. If no work is avail- able which the operator can perform, then the op- erator is to be terminated. Each plant manager receives a list each week showing 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which employees out of the training period failed to make production the prior week. The list indicates whether an employee was substandard, i.e., earned more than the min- imum rate but less than the base rate, or problem, i.e., earned less than the minimum rate. An employee who ap- pears on this list with any degree of regularity becomes known as a substandard or problem operator, as the case may be. a. At Starkville Unlike the discharges at Kosciusko which have no ele- ment in common other than the fact that each woman lost her job, three of the four alleged discriminatees at Stark- ville were involved in a common incident on September 21. The three are Brenda Purnell , her sister, Cloteria Rob- inson, and Carolyn Dawson. Since there is no question of company knowledge at time of discharge in the cases of Purnell and Robinson,8 and since there is no dispute that Rose Elliott did not, in fact, participate in union activities beyond signing an authorization card prior to her dis- charge, the only significance of the incident is to provide a basis for a finding of company knowledge in the case of Carolyn Dawson . Without attempting to detail all the intri- cacies of the argument on this hotly contested point, I do not credit the testimony of Katie Butler, a supervisor, that she did not name Mrs. Dawson as one of the employees she reported as engaging in union activities in the ladies room at the Starkville plant on Friday , September 21, when the following events occurred: Seven employees left the plant at lunchtime in one auto- mobile. Included in the group were Brenda Purnell, Clote- ria Robinson, and Carolyn Dawson. While they were in the automobile, Miss Purnell solicited the others to sign au- thorization cards for the Charging Party . When they got back to the plant parking lot, she distributed blank cards to some of the others before they got out of the automobile. As they entered the plant to return to work, the entire group stopped in the ladies room. Katie Butler, plant qual- ity control supervisor, came in while they were there. She saw Mrs. Robinson return an executed card to Miss Pur- nell. Pursuant to her instructions, she immediately reported what she had observed to Louise Johnston, plant personnel manager. She named Mrs. Dawson as being among the group she had observed engaging in union activities in the ladies room. (1) Brenda Purnell Brenda Purnell's date of hire was September 23, 1970. She was a sewing machine operator on the set and close line. She was active in the Charging Party's campaign to organize the Starkville plant, signing an authorization card for Mae Blair, the professional organizer, on September 19 8 Miss Purnell, like Andrew Gordon at Lambert, was admittedly dis- charged for engaging in a union activity. The issue in their cases is whether it was a protected activity. Mrs. Robinson was the only terminated employ- ee at Starkville who "made company knowledge" by signing a document sent to Respondent prior to her discharge . All six at Kosciusko fall into that category. and obtaining cards from other employees. In the course of this activity, she visited the homes of other employees, sometimes in the company of Carolyn Dawson. Miss Purnell was absent from work on September 20. On the afternoon of September 21, following the ladies room incident already described, she was told by Louise John- ston that she had been absent excessively as a result of an injury she had recently suffered and was ordered to pro- duce a doctor's certificate that she was physically able to work by Monday, September 24. She did so, turning in the paper requested on the morning of September 24. That afternoon she inquired of Louise Johnston whether the pa- per was satisfactory. She was told it was. No further point was made of her absenteeism. It did not figure in her dis- charge in any way. Later, on the afternoon of September 24, Miss Purnell was summoned to the office of the plant manager, Robert Johnson. She was discharged for threatening another em- ployee in order to force that employee to sign an authoriza- tion card. Johnson refused to tell her the name of the em- ployee she had threatened. She protested that she had not threatened anyone. At the end of the termination inter- view, she was not permitted to return to her machine to pick up her personal equipment. Instead, she was escorted directly out of the plant. As she left, she passed Starkville city policemen walking into the plant. The policemen had been summoned by Respondent because it feared a distur- bance as the result of Miss Purnell's discharge. Miss Pur- nell filed a complaint with the local chapter of the National Association for the Advancement of Colored People. Offi- cials of the NAACP spoke to officials of Respondent twice in an effort to get Miss Purnell reinstated to no avail. At the hearing, Robert Johnson refused to name the em- ployee whom Miss Purnell had threatened on the ground that he had promised he would not reveal the employee's name. While not admitting that the discharge of Miss Pur- nell violated the Act, Respondent offered no evidence in defense of that allegation of the complaint. There is no evidence in the record that Miss Purnell ever threatened anyone for any reason or under any circumstances. (2) Carolyn Dawson Carolyn Dawson's date of hire was March 12. She was a sewing machine operator on the cuff-setting line. Like Brenda Purnell, she signed an authorization card for Mae Blair on September 19 and solicited thereafter. Mrs Dawson was a substandard operator. In the first week after she completed her 8-week training period, Mary Young, her immediate supervisor, and Ray Parish, plant production manager, told her that Respondent would not be able to keep her if her production did not improve. On August 29, Mrs. Young warned her that she would have to get her production up to the base rate or she would not be transferred to another line when the cuff season ended. (Shirts are produced in the Starkville plant. Fall line shirts have long sleeves. Spring line shirts have short sleeves. Fall 1973 line production was nearing its end at this time.) Dur- ing the week ending September 14, Mrs . Dawson was ab- sent 2 days. She did not earn the base rate of $ 16 on any of the 3 days she worked . During the week ending September STARKVILLE, INC. 607 21, she earned a few pennies more than $ 16 on each of 2 days, less than $16 on each of the other 3. Her average for the week was $14.87. On the afternoon of Friday , September 21, after the la- dies room incident already described , Parish and Mrs. Young told Mrs. Dawson that she would be terminated on September 28 if she did not make production , i.e., earn more than $ 16, each day of the following week . The reason given was the fact that cuffs were running out and they could not transfer a substandard operator to another line. Mrs. Dawson earned more than $16 on Monday , Septem- ber 24, and Tuesday , September 25. On Wednesday, Sep- tember 26, she earned less. That afternoon she asked to get off early so that she could pick up food stamps . She was denied permission to leave on the ground that she had been warned about her production and needed a full day's pro- duction in order to avoid discharge. She was absent on Thursday, September 27. Another employee reported to Mrs. Young that Mrs. Dawson had said , before she left the plant on Wednesday , the reason Respondent would not let her off early was the fact it believed she was helping Bren- da Purnell with the Union , but that she did not have any- thing to do with it . On Friday, September 28, Mrs. Dawson again failed to make production . Her average earnings for the 4 days she worked that week were $15.69. Respondent laid off a number of employees for econom- ic reasons at the end of the day on September 28. They were told to return to work on Monday , October 22. Mrs. Dawson was in this group. She was not discharged rather than laid off at this time because her final figures for the week were not available at the time she was laid off. The decision to terminate Mrs. Dawson was made dur- ing the week of October 1 when she showed up on the problem-substandard operators list for the week ending September 28. She was not informed of this decision until she returned to the plant on the morning of Monday, Octo- ber 22, pursuant to the instructions she had received when she was laid off. Louise Johnston had tried to contact her without success in the interim . She was told by Robert Johnson, the plant manager, that she would have to be terminated because she had been given a week to make production and had failed . He told her that, under the cir- cumstances, he could not transfer her to another operation. Essie Young, another substandard operator on the cuff set line whose date of hire was April 16, was transferred to an embroidery operation on September 14. (She actually started work on that machine on Monday, September 17.) Black employees had complained that no black had ever been put on the embroidery machine because of racial dis- crimination. Mrs. Dawson and Miss Young are both blacks . Miss Young was picked over Mrs. Dawson for transfer on the recommendation of Mary Young. Mrs. Young, a white woman, selected Miss Young because her attendance was better and her earnings , although substan- dard, were higher, and because she had a gut feeling that Miss Young would do the better job. She did not take Mrs. Dawson's greater seniority into consideration . Miss Young has, in fact, since made it on the embroidery machine, ris- ing to production operator status despite the fact that em- broidery is more difficult than cuff setting. (3) Cloteria Robinson and Rose Elliott Cloteria Robinson's date of hire was April 25. Rose Elliott's was April 11. Both were sewing machine operators on the side close line . As already indicated, Mrs. Robinson signed an authorization card in the ladies room on Septem- ber 21 and was observed by Respondent turning it into Brenda Purnell, one of the more active organizers among Starkville employees . In addition, she "made company knowledge" on October 29. Miss Elliott signed an authori- zation card on September 22. She was not in the plant at the time. She engaged in no other union activities . Respon- dent was not aware (and the General Counsel does not contend it was aware) that she was in favor of the Union when it discharged her on November 5. Both Mrs. Robinson and Miss Elliott were problem op- erators, i.e., their earnings were consistently below the min- imum rate so that Respondent had to compensate them for work not performed in order, prior to Octcber 2, to comply with the Federal minimum wage law and , after October 2, to meet its newly established minimum rate of $1.90 an hour. Both were warned by Ray Parish in July, shortly after they finished their training period, about their low production. Both were among the group of Starkville em- ployees laid off on September 28 and recalled on October 22. Both were told by Robert Johnson on October 22 that they had 2 weeks to make production or they would be terminated . At that time, the earnings figure which separat- ed problem operators from substandard operators was $15.20 a day. The figure which separated substandard op- erators from production operators was $17.60. During the last 2 weeks of their employment, each topped $17.60 on I day. Miss Elliott earned $17.97 on Tuesday, October 30. Mrs. Robinson earned $17.85 on Thursday, November 1. On each of the other days they worked, each earned less than $15 .20. Miss Elliott's daily average during the week ending Friday, October 26, was $11.29 , during the week ending Friday, November 2, $14.46. Mrs. Robinson worked only 3 days in the first of these weeks . Her daily average for the days she worked was $ 10.95. She worked only 4 days in the second week. Her daily average was $13.83. Both were terminated by Johnson on Monday, No- vember 5. Johnson called each woman into his office separately. Mrs. Robinson, who provoked some profanity from John- son on October 30 when he talked to her about the "com- pany knowledge" letter he had received , had the same ef- fect on him this time. When she entered his office, he said, "Cloteria, I think you know why I have called you here. I have something to tell you." Mrs. Robinson said, "You can't tell me anything." Johnson said, "Well, I can tell you one damn thing. I'm firing you." Mrs. Robinson stalked out. When Miss Elliott came into his office , Johnson said, "Well, Rosie, this is it. We have talked with you. I ex- plained to you previously that you had to make the pro- duction rate or we couldn't keep you. I 'm sorry that it had to happen and if you need us for a recommendation for another job, feel free to have your next employer contact us." Miss Elliott cried. At the time of the termination of Mrs . Robinson and 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miss Elliott, there were three operators working on tank top shirts on the side close line. The third operator was Sriati Usman, a trainee whose date of hire is October 30. Olivia Jackson, whose date of hire is July 30, was trans- ferred to the line on November 8. Mattie Rhine was hired on December 3 and placed on the line. As of the week ending Friday, December 21, the last week for which pre- cise records appear in the record (the plant was closed dur- ing Christmas week), all three were still averaging less than $15.20 a day. Apparently (the record is not clear) all three were still trainees on the side close line at that time. All three were substandard operators in the period in 1974 just prior to the hearing. All had been warned about their low production. The product on which Mrs. Robinson and Miss Elliott worked-tank tops-was a new one in the Starkville plant. Consequently, prior to October 22, the piece rate at which they were compensated was a temporary one. The method in this operation was initially patterned on the way it was done in another of Garan's plants. When this proved un- satisfactory, the method was changed four different times until an efficient one was evolved. The last change oc- curred in July, well before any union activity at Starkville. When the engineers completed their studies, they recom- mended a rate for the operation which Johnson considered too low. As was his prerogative as plant manager, he in- creased the engineers' rate by 16 percent. When Mrs. Rob- inson and Miss Elliott returned from layoff on October 22 and were warned about making production, Johnson told them what the new permanent rate was? At the time Mrs. Robinson and Miss Elliott were terminated, production of tank tops at the Starkville plant was on the increase. Johnson, who became manager of the plant approxi- mately a year prior to the hearing, has warned other prob- lem operators that they would be discharged if they did not make production. Some were warned before Mrs. Rob- inson and Miss Elliott were warned, some after. Some quit after being warned but before being discharged. Others were discharged when they failed to make production. b. At Kosciusko (1) Geraldine Stephens Geraldine Stephens' date of hire was September 28, 1970. She was a sewing machine operator on the right and left zipper (or zip) set line. She signed an authorization card for the Charging Party. She attended a number of union meetings, beginning with the one on September 11 at which she and all the other women named as discrimina- tees at the Kosciusko plant signed a document in order to "make company knowledge." Miss Stephens was a substandard or problem operator 91 do not credit the testimony of Mrs. Robinson and Miss Elliott that their piece rate was boosted again on October 30 from 13 cents per dozen to 15 cents. I think they were simply confused by all the complicated testimony about how the permanent rate for tank tops side close had finally been arrived at. In any event, while the General Counsel seems to attach some importance to the point, such a finding would only weaken his case, for it would mean that Mrs. Robinson 's and Miss Elliott's opportunity to make production was enhanced during the last week of their employment throughout her employment. During 1973 her name ap- peared on the weekly problem operators list nine times be- fore August 27. In July and again in early August, Beverly Ryles, her immediate supervisor, talked to her about being on the problem operators list. Mrs. Ryles began in July to "pick her up hourly," i.e., she began to check her produc- tion once an hour so that she could counsel her whether she was working at production speed. This procedure con- tinued until August 27. On August 14, she was warned by Roy Bennett, plant production manager, Joann Hudson, plant training supervisor, and Mrs. Ryles that she had 2 weeks in which to make production or else she would be placed on a retraining curve. She failed to make produc- tion. On Monday, August 27, she went on a retraining curve. New employees and old employees who are transferred to a new operation are considered trainees until they com- plete a training period. The length of the period varies de- pending on the complexity of the operation for which the employee is being trained. For zip set, the training period lasts 14 weeks. For each operation there is a training curve. It starts at a nominal production level in the first week of training and ends at the full production level at the end of the last week. In August and September, full production level was $16 per day. Thus, the training curve is designed to give a trainee an opportunity to build up gradually to full production status during the training period by indicat- ing figures for increasingly higher daily production during the training period which are considered indicative of nor- mal development. When an operator who has completed a training period is placed on a retraining curve, she starts at the point on the training curve which correlates with her average weekly earnings. In Miss Stephens' case, her average weekly earn- ing at the time were the equivalent of the production ex- pected of a trainee at the beginning of the eighth week of the training period. Therefore, her retraining curve started at the eighth week of the regular training curve, and she was expected to achieve $16 a day through daily improve- ment in 7 weeks. Placing a problem operator on a retrain- ing curve is Respondent's last resort before terminating her for inability to do the work. If she achieves production in the retraining time allotted to her and thereafter maintains it, she continues in Respondent's employ. If she successful- ly completes the retraining curve but thereafter falls below production, she is discharged. If, during the retraining peri- od, her production falls below the point on the curve it is supposed to reach on 3 successive days, she is discharged. The consequences of falling below the retraining curve were explained to Miss Stephens before she went on it. As is customary in these situations, her curve was posted at her machine, her production was computed and posted daily by the training supervisor, and her supervisors con- sulted with her regularly about the progress she was mak- ing. Beginning on August 27, Miss Stephens' production was at or above her retraining curve each day until Monday, September 17, when it fell below. On Tuesday, September 18, it was again above. On Wednesday, September 19, it again fell below the line and remained there through Thursday, Friday, and Monday, September 20, 21, and 24. STARKVILLE, INC. 609 On Monday, Bennett pointed out to Miss Stephens that she had already been below the line 3 consecutive days and warned her that I more day would cost her her job. On the morning of September 25, he discharged her. At the time Miss Stephens was on a retraining curve, Josephine McGee was also on the zip line . She was also a problem operator. After Miss Stephens was terminated, Jo- sephine McGee was also placed on a retraining curve. She quit before her retraining period ended . Other operators have quit after being placed on a retraining curve. Still others have been discharged . One of the latter, a Janie Clark, was subsequently reemployed as a janitress and was working at the Kosciusko plant at the time of the hearing. (2) Shirley Vowell Like Geraldine Stephens, Shirley Vowell was discharged on September 25. Like the other four Kosciusko women whose discharges in late September and the first half of October are claimed by the General Counsel to be violative of the Act, Mrs. Vowell was discharged at a time when the plant was undergoing a reduction in the number of pairs of jeans it was turning out. In Miss Stephens' case, that fact is immaterial. As of the time of the hearing no production employees had been hired since Mrs. Vowell was dis- charged on September 25, the earliest discharge Respon- dent attributes to the cutback in production. Employees not named in the complaint as discriminatees were dis- charged in the period following the beginning of union ac- tivity. The total complement of employees dropped from 279 in August to approximately 230 on February 12, 1974, the first day of the hearing. Mrs. Vowell's date of hire was November 19, 1971. She was a marker in the cutting department. She signed an authorization card at the initial union meeting in Koscius- ko on September 4 and thereafter solicited cards from other employees. Her mother was an official of the Charg- ing Party at a pants factory (not one of Respondent's) in Louisville, Mississippi . Sometime in mid-August she asked her mother to have the Union send organizers to Koscius- ko. She was unaware of any union activity directed at Garan's Mississippi plants prior to the September 4 meet- ing in Kosciusko. She thought the meeting resulted from her initiative . Respondent never learned, prior to her dis- charge, that she had contacted her mother about starting an organizing campaign at the Kosciusko plant. Mrs. Vowell was hired and worked initially as a marker. (The work she did in the cutting department, other than bundling parts after spreads were cut, was essentially to trace patterns on material that had been spread for cutting. She is referred to variously in the record as a "marker" and a "tracer." I have elected to use only the former title in the interest of simplicity .) In January, Respondent's engineer- ing department produced a study of the Kosciusko plant's yardage control program the import of which was that, ideally, the chores which Mrs . Vowell worked on could be performed by one and a fraction employees. Mrs. Vowell had the least seniority of the three markers . Consequently, she was transferred to bundling around February 1. Some- time in May or June, when it developed that a third marker was needed despite the engineering study, she was trans- ferred back to marking. She was selected on the basis of her prior experience as a marker and not seniority. A third marker was needed because Sears', a major cus- tomer, had placed orders for many different styles included in Respondent's fall 1973 line. A factor in the cutback in production alluded to above was Sears' failure to order as extensively from Respondent's spring 1974 line. In August, about 6 weeks before Mrs. Vowell's termination, a plant clerical was transferred into the office . Paul Newell, the cutting room foreman, called Mrs. Vowell into the office at that time and told her that the engineers were pressuring him to reduce the number of markers . He told her he was going to try having her do 4 hours marking and 4 hours paperwork each day. He said that if they could not keep up with the marking he would put her back on it full time and hire someone else to do the paperwork. He pointed out it would be good for her because she could do that many more jobs and, in the event of a cutback, the person who could do the most jobs would be a valuable employee and would be retained . Consequently, during the last 6 weeks of her employment, Mrs. Vowell did marking 4 hours and handled paperwork 4 hours each day. On September 25 Mrs. Vowell was still the junior of Kosciusko's three markers. Around 10: 30 that morning Newell took her to the personnel office and discharged her. He told her the reason was the fact that the plant was having a cutback. Mrs. Vowell asked if she was being laid off because of her union activities. Newell said no, she had been selected because she had the least seniority on the cutting table and others would be let go ; she just happened to be the first. Mrs. Vowell reminded him of what he had said in August about her additional clerical skill. Newell had no explanation for the fact that she was being termi- nated despite his prediction that the change in her duties would save her in the event of a cutback. On September 25, there were two women doing bundling work in the cutting department. One of them-Ruby Hill-had a date of hire earlier than Mrs. Vowell's. The other-Marie McMullin-had a date of hire later than Mrs. Vowell's. No markers or bundlers have been hired since September 25. James Russell, the one male bundler employed as of September 25, had a date of hire earlier than Mrs. Vowell's. He has since left. His duties included heavy work not required of female bundlers . He was re- placed by transferring a man from another job . After Sep- tember 25, Ruby Hill did the paperwork formerly done by Mrs. Vowell. (3) Pearlean Cummins Pearlean Cummins' date of hire was September 9, 1971. She was the sample coordinator at the time of her dis- charge. She signed an authorization card for the Charging Party. She attended all the 9 or 10 meetings held by the Charging Party, including one on the evening of September 25, the day before she was discharged. She solicited cards from other employees, visiting some of them in their homes for that purpose. Mrs. Cummins was hired as a sewing machine operator. After 3 or 4 weeks on the back pockets line, she became an inspector. In early March, she was interviewed by Roy 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bennett, plant production manager, Alice Payne, plant per- sonnel manager, and Alston Willette, plant manager, about a supervisory job that was open. She was turned down for that particular job because she did not have enough experi- ence, especially on the sewing machines, but she was told she was of supervisor caliber and would be promoted even- tually. In July 1973, she was transferred to the job of sam- ple coordinator. This is a nonsupervisory job. However, she was told at the time that the move was in the nature of a promotion, and she was given a raise. The sample coordinator is responsible for the production of samples. Samples are manufactured in the styles Re- spondent plans to offer in its line . Salesmen then utilize the samples in soliciting the orders on the basis of which the line is produced. Consequently, samples are produced twice a year as an early stage of each of the two production cycles. In September, sample work for the spring 1974 line had been completed; sample work for the fall 1974 line had not yet started. Basically, the sample coordinator receives instructions from New York in the form of a sample book and patterns. She spreads and marks the material from which the sam- ples are to be made and has it cut. She bundles the parts, just as parts are bundled in the regular production process. She then shepherds the samples through the sewing room. When they are complete, she inspects them, packs them, and ships them. In the course of this process, she does the paperwork associated with samples. In addition, she han- dles occasional special orders, such as jeans specially or- dered by New York executives. In June, prior to Mrs. Cummins' transfer to the sample job, the possibility that sample work might be eliminated from the Kosciusko plant, a consummation devoutly wished by Willette, first came up between Willette and Rodney Faver, the manufacturing manager who was his immediate superior. Willette did not mention this possibili- ty to Mrs. Cummins when he transferred her. During the third week in September, Faver informed Willette that a decision was in the offing to take all sample work out of his plant. Beginning with the fall 1974 line, Faver said, sam- ples of little children's jeans would be consolidated at the Philadelphia plant, big children's jeans at the Eupora plant. Respondent produces children's jeans at Philadelphia, Eu- pora, and Koscisuko. Faver also informed Willette at that time there would be a 10-percent reduction in the number of pairs of jeans produced in Kosciusko. On the morning of September 26 Willette learned that the decision as to sample making had been finalized. He summoned Mrs. Cummins to his office around 10:30. He told her the plant was having a cutback. He said he had been on the telephone to New York and it had been decid- ed not to make any more samples in the Kosciusko plant. He said he did not have another position to put her in and, therefore, he was terminating her for lack of work. There was, in fact, no job open in inspection at that time. In any event, Mrs. Cummins' date of hire was later than that of any inspector then working. (The General Counsel and Mrs. Cummins also contend she was qualified for back pockets work. There was no such job available on Septem- ber 26 either. Moreover, the Kosciusko roster, which is in evidence and which indicates each employee's date of hire and job, does not indicate a "back pocket" job as such. To the extent to which it is possible to correlate the entries on this exhibit with Mrs. Cummins' testimony, however, it would appear that her date of hire was later than that of any of the operators working on the job for which she claimed she was qualified.) As of September 26, only three of the many rolls of yard goods ordered by Respondent for fall 1974 line samples had been received at the Kosciusko plant. In the following week Willette ordered them shipped to Philadelphia. By the time his order trickled down to the employees who boxed the goods and loaded the truck, it had been garbled into an order to send all sample yard goods in the plant. Consequently, not only the three rolls for fall 1974 were sent but also all the leftover, uncut goods from which sam- ples of prior lines had been made. Willette learned of the mistake when he got an irate telephone call from his coun- terpart at the Philadelphia plant. He apologized and or- dered the old material sent back to Kosciusko. It was. At the time of her discharge Mrs. Cummins was working on a special order for a customer named Lazarus. Lazarus was in the process of opening a new store for which it needed a complete stock of fall 1973 merchandise. To ac- commodate it one of Respondent' s salesmen asked Willette to rush through a special order. Willette obliged. The order was handled like samples in order to expedite production and meet an air freight shipment date of Friday, Septem- ber 28. Work still remained to be done on this order as of Wednesday morning when Mrs. Cummins was discharged. The record is unclear as to which estimate is more accu- rate, Mrs. Cummins' that it would have taken her a week to finish the chores she had in hand when she was discharged, or Willette's that it would have taken her 4 hours. Without attempting to detail all the facts elicited during the hassle over this particular point, I find that Willette's estimate was closer to reality than Mrs. Cummins'. (4) Minnie Atterberry Minnie Atterberry's date of hire was June 2, 1971. She was an inspector at the time of her discharge . She signed an authorization card for the Charging Party at the meeting held on September 4. She attended meetings regularly and solicited other employees to sign cards, visiting some of them in their homes for that purpose. Mrs. Atterberry was hired as a sewing machine operator. Prior to her transfer to inspecting on August 13, she worked on and achieved production on the band set, side seam, and inseam lines . She was working on the side seam line at the time of her transfer. Mrs Atterberry was discharged on October 12. She was taken to the personnel office by Dot Vowell, her immediate supervisor, who told her Respondent had to let her go be- cause the plant was having a 10-percent cutback in work. At the time of her discharge, Mrs. Atterberry's date of hire was the latest of all the inspectors . It was earlier than operators working on the band set, side seam, and inseam lines who were not terminated. STARKVILLE, INC. 611 (5) Alice Fondren Alice Fondren was also discharged on October 12. Her date of hire was January 26, 1972. She was a sewing ma- chine operator. She worked on the patch pocket set line only. She signed an authorization card for the Charging Party on September 5. She attended three union meetings, including the one on September 11 when she and 37 other employees signed a document in order to "make company knowledge." She engaged in no other union activities. Mrs. Fondren was one of five operators who were work- ing on patch pocket set in August. Patch pockets are used on some styles of jeans, not on others. (The sewing opera- tion involved in setting a patch pocket is different from the operations involved in placing other types of pockets in other style jeans to the degree that changing an operator from patch pocket set to another pocket operation is the same as transferring her to a nonpocket operation and re- quires retraining.) At the time, the Kosciusko plant was producing jeans for both boys and girls. However, it was in the process of being switched over to production of girls' jeans only, a situation that had not quite been achieved at the time of the hearing. When production of both girls' and boys' jeans with patch pockets was at its peak, 13 operators worked on the patch pocket line. (Actually, lines, since girls' and boys' jeans were handled separately. However, there is no significant difference between the skill required to sew a patch pocket on a pair of girls' jeans and a pair of boys' ,leans. An operator who has achieved production on one type can maintain production if switched to the other.) As the amount of patch pocket work gradually diminished due to the completion of orders for those styles, the num- ber dwindled to five. The operators switched to other lines on a voluntary basis as the work fell off. Seniority was not a factor. In late August, Willette and Bennett called a meeting of the five operators, including Mrs. Fondren, who were still working on patch pocket set. Willette told them that pro- duction of styles with patch pockets had just been ordered cut substantially, but that he anticipated enough boys' patch pocket work would remain in the plant to keep all five of them busy until Christmas despite the switchover. Between that meeting and October 12, two more patch pocket setters transferred to other lines because , Willette's prediction notwithstanding, there was not enough work to keep all five busy. Both moved voluntarily. Mrs. Fondren was not given an opportunity to transfer. Her date of hire was earlier than and her production record better than some of those who were given an opportunity to transfer voluntarily as their work ran out . (The record is unclear as to which and whether this was true with respect to the two operators who transferred after Willette 's optimistic state- ment in late August. The data contained on the roster of Kosciusko employees referred to in section (3) above does not jibe with the names of employees mentioned in the course of oral testimony on this point.) Sometime after Willette learned from Faver in the third week of September that total plant production was being cut by 10 percent, he determined that he would need only one full-time and one part-time operator on patch pocket set. As of October 12, the three operators remaining on that line were Mrs. Fondren, Mamie Catchings, and Deot- sie Edwards. Mrs. Fondren's date of hire was later than that of either of the other two women. Deotsie Edwards was a switch operator, i.e., she was capable of maintaining production on more than one operation and was, therefore, switched from line to line as production needs dictated. Patch pocket set was, however, the line in which she held her seniority. On the morning of October 12, Bennett and Lavelle Ca- gle, Mrs. Fondren's immediate supervisor, took her to the personnel office. Bennett said, "Alice, we are going to have to terminate you for work. We don't have much work." Mrs. Fondren said, "Why is this? On account of the Union?" Bennett said, "No, it's on account of the work; we don't have much work to do." Mrs. Fondren said, "Thank you," got up, took her checks, and left. (6) Nina Christine Allen Nina Christine Allen's date of hire was June 1, 1971. She was working in the thread room at the time of her dis- charge. Like Mrs. Fondren, she signed an authorization card for the Charging Party on September 5 and attended her first union meeting on September 11. She went to ap- proximately three meetings in all and prevailed upon two other employees to sign authorization cards, one at the employee's home, the other in the plant. Miss Allen was hired as a sewing machine operator. The line on which she principally worked and held her seniority was yoke set. However, she worked at various times on band and finish, patch pocket, side seam, and inseam. The only line on which she failed to achieve production was inseam. Sometime in July, Miss Allen and another employee, Reba Matlock, took a day off and went to Jackson, Missis- sippi, to enlist in the Air Force. (Miss Matlock also attend- ed the September 11 union meeting and was among the 38 employees who "made company knowledge" at that time. I assume she also signed an authorization card for the Union. At the time of the hearing, she was still working in the Kosciusko plant.) They indicated to the recruiter their interests and desires with respect to an Air Force career. It was arranged that they would formally complete the enlist- ment process as soon as the recruiter informed, them that openings were available in the specialties of their choice. He told them this would probably happen in September. When they returned to the plant the next day, they told Bennett what they had done. They said they expected to be leaving in September. In-September, Miss Allen was working on yoke set, She had the most recent date of hire of all the women working on that line. As yoke set work dwindled Bennett checked with Miss Allen from time to time about when she expect- ed to be leaving for the Air Force. Miss Allen told dim she had heard nothing yet. Finally, on September 28, Willette transferred her into the thread room because she was no longer needed on yoke set. Senionty-was not a factor in his decision. Rather, he elected to transfer her rather than dis- charge her, for lack of work because he anticipated she 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be leaving in a few weeks in any event , and because there was a cleanup and straighten-up chore to be done in the thread room which could keep her busy in the interim. (The ongoing work which must be done in the thread room is to load buggies with the particular type and color thread which is required on the sewing floor. It does not require a full-time employee. Prior to Miss Allen's transfer, it was done by a supervisor . Since her discharge , it has been done by a supervisor.) After her transfer, Miss Allen continued to work as an operator from time to time as needed. Sometime between September 28 and October 15, Ben- nett had Miss Allen make a telephone call to the Air Force recruiter in Jackson to try to find out more precisely when she would be leaving. He wanted to know whether she would be around long enough for it be worth his while to train her for a sewing operation other than yoke set. Ben- nett also talked to the recruiter . The recruiter told Miss Allen and Bennett there would be no opening for her until November or December, probably December. (I credit Miss Allen's testimony that Bennett was the supervisor who participated in this incident over Bennett's testimony that it was some other supervisor . There is no dispute that the call was made or that Respondent was made aware through it of Miss Allen's prospects as of October 11 when Willette decided to discharge her.) By Thursday, October 11, the special chore for which Miss Allen had been transferred to the thread room had been completed, and there was no yoke set work available for her. She worked that day on side seam and inseam. That evening Willette asked Bennett if he had anything he could transfer her to. Bennett said, "No, the thread room job is playing out. What are we going to do? We can't carry another indirect" (i.e., another employee whose wages are charged to indirect labor). Willette decided to discharge her. But for the fact that she was off sick that day, Miss Allen would have been discharged on Friday, October 12, along with Minnie Atterberry and Alice Fondren . As it turned out, she went to the office first thing Monday morning, October 15, to give Alice Payne her doctor's excuse for being absent. Alice Payne told her to wait because Bennett wanted to see her. When Bennett arrived , he told her that production in the plant was being cut from 11 ,000 to 10, 000 (i.e., by 10 percent), that she knew what the situation was in the thread room, and that he was going to have to terminate her for lack of work. Sometime after October 15, Miss Allen and Miss Mat- lock changed their minds about joining the Air Force. c. At Lambert Respondent produces knit shirts at its Lambert plant. It also knits there the fabric from which the shirts are made. Andrew Gordon was employed there as an inspector prior to his discharge on October 4. He inspected fabric as it came from the knitting machines, marking and making a record of all the various irregularities, such as dropped stitches, knitted material is subject to. He was active on behalf of the Charging Party at the Lambert plant. He signed an authorization card on September 20, solicited cards from other employees, and attended meetings. Clarence Hawkins is a knitting machine operator. He operates five semiautomatic knitting machines at a time. Gordon sometimes inspected the fabric that was being pro- duced by Hawkins' machines . October 2 was such a day. At breaktime that morning Gordon got into a conversation with Hawkins about the Union . Gordon tried to persuade Hawkins to sign an authorization card by pointing out to him the advantages of being represented by a union. Haw- kins said he did not want to sign because he did not need a union. He said he had gotten along that long without one and he could continue to get along without one . That af- ternoon Clarence Hawkins was away from his machine talking to two other inspectors named Kelly Keeler and Willy Keeler. Gordon went up to him and said , "You bet- ter get your damned ass back to your machines because you are running bad already" (i.e., Hawkins' machines were producing imperfect fabric ). Hawkins replied, "Don't press your luck. I don't want to sign a union card ." Gordon said, "I make my own luck." Willie Keeler said, "Cool it, man," and the incident ended. James Coleman, supervisor of the knitting department, first heard of this exchange between Gordon and Hawkins from Paul Cox, a fixer in his department. Cox reported to Coleman that Gordon had said to Hawkins , "If you don't sign a Union card, I'm going to make it rough on you on defects or I'm going to whip your ass." Cox gave Hawkins as the source of his information. Coleman went to Haw- kins, who told him the same thing. Coleman did not check with Gordon or either of the two Keelers. Instead , he went directly to his immediate superior , Larry Lock, the knitting manager. Lock conducted no investigation either. He went directly to Albert Copelan, the plant manager. On the basis of the information Lock had received from Coleman, they decided to discharge Gordon for violation of a rule against threatening other employees in the plant. (The rule had recently been explained to Lambert employees by Dan Miner, manufacturing manager with responsibility for the Lambert plant. Miner made a speech on October 1 as part of Respondent's antiunion campaign in which he made the same points made by Willette at Kosciusko and Johnson at Starkville when they lectured the employees at their plants who had "made company knowledge." He pointed out that, while employees had the right to engage in union ac- tivities, that right was not so broad that it permitted them to do various things, among them trying to coerce other employees into joining the Union.) A few minutes before the end of Gordon's shift on the afternoon of October 4, Coleman took him to Lock's of- fice. Lock told Gordon he had received complaints from employees that Gordon had threatened them if they did not sign a union card. He said it was against company policy to threaten or harass an employee about signing a union card. Gordon said he had not threatened anyone. Lock said, "We think you have." Gordon said, "I haven't threatened Clarence Hawkins." Lock reminded Gordon what Miner had said on Mon- day of that week about threatening employees while engag- ing in union activities. Gordon pointed out that he had gone home early on Monday because he was sick and had missed the speech. Lock was concerned that this might have some legal significance which would make a differ- STARKVILLE, INC. ence in the decision he and Copelan had already made. Consequently, he told Gordon and Coleman to wait for him. He left his office and went to Copelan's. He told Copelan what Gordon had said about not hearing Miner's speech. Copelan said it made no difference. He told Lock to go ahead and discharge Gordon. Lock returned to his office and did so. 2. Analysis and conclusions a. Brenda Purnell and Andrew Gordon Unlike the discharge of Brenda Purnell where Respon- dent offered no evidence and does not discuss the subject in its brief, Respondent did attempt to disprove the allega- tions of the complaint with respect to the discharge of An- drew Gordon. However, both cases turn on the same prin- ciple. The only direct evidence in the record of the exchange between Gordon and Hawkins on October 2 for which Gordon was discharged is the testimony of Gordon. I cred- it Gordon because I have no reason to discredit him. My findings as to what he said to Hawkins and what Hawkins said to him are based on his testimony. If Respondent would have me find that Gordon and not Hawkins intro- duced the union note when Gordon told Hawkins he should return to his machines because they were running bad, it was incumbent upon it to call as witnesses Hawkins and/or one or both of the Keelers, the only other persons who have firsthand knowledge of what happened on this occasion. The fact it did not elect to do so justifies the inference that their testimony would have corroborated rather than contradicted Gordon. Respondent relies on the fact, candidly admitted by Gordon before Respondent even called Coleman, Lock, and Copelan to testify about the events which followed the Gordon-Hawkins exchange, that Gordon knew without being told that Lock was refer- ring to Hawkins in the discharge interview. That point does not justify a finding Gordon said the opposite of what he testified he said to Hawkins. He obviously knew that one person with whom he had had a run-in since he had be- come active on behalf of the Union was Hawkins. For him to say to Lock that he had not threatened Hawkins is as consistent with his version of what happened as with the hearsay version on the basis of which Lock and Copelan decided to act without any effort to conduct an investiga- tion to determine what had really happened. Respondent does not contend that the reason for which it discharged both Miss Purnell and Gordon was uncon- nected with the union activities of employees . It contends the discharges were legal because the union activities in which both were known to be engaged were unprotected. An employer who discharges an employee for this reason acts at his peril. If, in fact, the employee did not do what the employer discharged him for doing, the discharge vio- lates the Act. There is no evidence that Miss Purnell ever threatened anyone while engaging in union activities. The evidence on which Respondent relies to establish that Gor- don threatened Hawkins in order to force him to sign an 613 authorization card establishes, rather, that Gordon did not threaten him at all. It merely proves that Gordon, some- what rudely, suggested Hawkins should return to his ma- chines because they were producing defective fabric. That Hawkins may have thought Gordon was trying to use his power to find defects in Hawkins' work in order to force Hawkins to sign an authorization card is immaterial. What the record proves is that Gordon did not. I find, therefore, that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Brenda Purnell on September 24 at Stark- ville and Andrew Gordon on October 4 at Lambert for engaging in union activities . N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21 (1964). b. The other nine Respondent's stated reason for discharging each of the other nine dischargees is as follows: Carolyn Dawson-failure to make production after being warned that such failure would cause her discharge. Cloteria Robinson-failure to make production after being warned that such failure would lead to her discharge. Rose Elliott-failure to make production after being warned that such failure would cause her discharge. Geraldine Stephens-failure to make production expect- ed of a trainee at her level of experience for 3 successive days after being placed on a retraining curve. Shirley Vowell-selected by seniority in course of eco- nomically caused cutback in complement of employees. Pearlean Cummins job eliminated. Minnie Atterberry-selected by seniority in course of economically caused cutback in complement of employees. Alice Fondren-selected by seniority in course of eco- nomically caused cutback in complement of employees. Nina Christine Allen-temporary job to which trans- ferred at time it was anticipated she would soon be quitting ran out and no other openings available at time of econom- ically caused cutback in complement of employees. The General Counsel contends each is a pretext masking an antiunion motive. The one basic fact on which the General Counsel erects his argument as to each is Respondent's antiunion animus. He does not contend that there is any other single fact or incident which reveals the pretextual nature of Respondent's ostensible reasons in all or any grouping of two or more. He does not argue that the discharge of all three of the remaining Starkville women-Carolyn Daw- son, Cloteria Robinson, and Rose Elliott-was triggered by the union activities which occurred in the ladies room on September 21. The only significance of that incident, as I have already found, is that it establishes Respondent's knowledge of the union activities of Mrs. Dawson, the only discriminatee named in the complaint as to whom Respon- dent raises that technical defense. The only instance in which the General Counsel contends one discharge relates to another in his explanation of what went on at the Stark- ville and Kosciusko plants in his linking of Miss Elliott with Mrs. Robinson. Respondent had to discharge Miss Elliott, the General Counsel argues, in order to lend verisi- militude to the discharge of Mrs. Robinson; therefore, the fact that Respondent had no knowledge of Miss Elliott's 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minimal union activities is immaterial. Apparently the General Counsel does not dispute the fact an economic justification existed at Kosciusko for a reduction in force. This is indicated at several points in his brief, for example: "Willette was waiting with both [Cummins'] checks in his hand and told her the Company was having a cutback... ." Moreover, he did not chal- lenge the testimony of Willette, the plant manager, and Faver, his manufacturing manager, that a 10-percent re- duction in pairs was ordered in September. While the Gen- eral Counsel has not so stated specifically, I gather his theory in each case at Kosciusko is one of discriminatory selection for discharge during an economically motivated reduction in force rather than one of discharges solely mo- tivated by antiunion considerations in a situation where no economic justification exists. I base this assumption on the fact that employees not named in the complaint were ter- minated during the same period (although, of course, there are other possible explanations for that fact than that the General Counsel sees the situation as one of some illegal selections during a legal layoff) and on the thrust of the General Counsel's argument in each case. In attempting to meet his burden of proving by a pre- ponderance of the evidence that the reason advanced for discharging each of these nine women is a pretext, the Gen- eral Counsel has undertaken to demonstrate she would not have been discharged but for Respondent's antiunion ani- mus by pointing out inconsistencies in the logic of Respondent's stated reason. He attacks seniority as the real reason by arguing that Respondent says it relied on it only in those situations where it benefited Respondent and says it did not rely on it in those situations where it was to its disadvantage, for example: Vowell apparently was transferred in February [from marker to bundler] pursuant to Respondent's seniority practice because Vowell was the least senior marker .... However, at the time that Vowell was transfer- red from the bundling job back to the marking job there was no seniority consideration given. The only consideration was that she had prior experience in the marking department . . . . It should be noted here that Vowell had seniority over employee Marie Mc- Mullin, a bundler, at this time . . . . Here is the first example we see of the Employer's using its seniority policy when it is to its advantage and not using its seniority policy when it is to its disadvantage. The General Counsel argues that an employer not motivat- ed by antiunion considerations would not reasonably have let good employees get away, as in this example from his discussion of Minnie Atterberry, an employee of relatively long uninterrupted tenure whose skill as a sewing machine operator is beyond question and whose work as an inspec- tor was not criticized: The fact that Respondent knew from the third week of September 1973 [i.e., when Willette learned of the 10- percent cut in pairs] through October 12, 1973, [ i.e., when Mrs. Atterberry was discharged] that Atterberry was going to have to be laid off and they found no position [to] which to transfer Atterberry in that peri- od of time only leads to the conclusion that they were endeavoring not to find an opening for Atterberry be- cause Atterberry was a qualified production operator in side seam, inseam and band set. . . . It is incon- ceivable that there was no opening during this three week period time in band set , inseam and side seam.10 In summary, the General Counsel's theory in each of these nine cases comes down to an argument that , since Respon- dent was against the Union and knew that each of these women (Rose Elliott excepted, of course) was for the Union, the fact that it did not get rid of some other specific employee instead of each one proves Respondent's illegal motive. Taking Minnie Atterberry again, as an example, the thrust of his argument is that, even if someone had to be discharged, Respondent would have let someone go from band set, inseam, or side seam in order to keep an employee as valuable as Mrs. Atterberry if its animus had not intervened. Viewed in this manner, the strength of the individual cases varies widely. The General Counsel' s worst case is Geraldine Stephens. (The discharge of Miss Stephens is not even mentioned in the General Counsel's brief. However, he has not conceded that he failed to prove her case.) His best case, principally because it arises at Starkville where there is no claim by Respondent of an economic necessity for an overall reduction in force, is Carolyn Dawson. The only thing that can be said in Miss Stephens' favor is that she worked at the Kosciusko plant for 3 years with- out getting fired. There is no dispute about the quality of her work throughout. She seldom made production. She was frequently on the weekly problem or substandard op- erators list. In 1973 she was on the problem operators list numerous times before Respondent finally decided to acti- vate its last-chance mechanism. There is no evidence that any operator who has ever been placed on a retraining curve and failed has not been terminated. The fact that Janie Clark was later rehired as a janitress after a similar experience does not establish disparate treatment of Miss Stephens. There is no evidence that there was an opening for a janitress or, for that matter, any nonsewing position for which Miss Stephens might have been qualified when she was discharged on September 25. Finally, while Miss Stephens was somewhat vague about the details of warn- ings she received before she was placed on a retraining curve, there can be no doubt, without a finding that memo- randa from her personnel file which are in evidence are deliberate forgeries, that she was in trouble because of her poor production long before Danny Forsyth appeared in Kosciusko to launch the Charging Party's campaign at that plant." There is nothing in this record which would justify 10 The last sentenoe in this portion of the General Counsel's brief is an especially good example of the General Counsel's approach to this proceed- ing. I have made no finding that there was an opening in band set, inseam, or side seam between the third week in September and October 12 because there is no evidence in the record on which to base such a finding. 11 Precisely when he arrived is unclear. He never took the stand. James Jackson, state Joint Board manager for the Charging Party, testified, some- what vaguely, "In this case our first activity at Garan , Inc., was at Philadel- phia and started about the last week in June 1973 . The campaign in Phila- delphia simmered to about the third week in August . And at that point we started in Kosciusko And between the next 10 days, between August 28th STARKVILLE, INC. even a suspicion that Respondent has forged records. Mrs. Dawson, on the other hand, had worked for Re- spondent only 7 months when she was discharged. Howev- er, unlike Miss Stephens, she did not cost Respondent any money when she admittedly fell below the base rate be- cause she was a substandard operator rather than a prob- lem operator. The strongest point in her favor is the fact that Essie Young, an employee Respondent had no reason to suspect was for the Union, was picked for the embroi- dery job over her after the organizing campaign began in Starkville in a situation where their respective claims to the job were relatively equal. Nevertheless, even if I were to decide each of these cases by compartmentalizing them rather than by weighing them in the context of the record as a whole, I would find against Mrs. Dawson. She failed to make production by the end of her training period and was warned that failure to get out of the substandard cate- gory would eventually cost her her job. (Failure to make production on a training curve does not have the same significance as on a retraining curve. There is, therefore, no significance to the fact that Mrs. Dawson was not dis- charged at that time.) This occurred even before the Charg- ing Party launched its campaign in Philadelphia. She was warned again that, if she continued to be a substandard operator, she could not be transferred to another line when work ran out on her line. This occurred before Mae Blair arrived in Starkville. There is no basis in the record for doubting that cuff set work was running out or that its imminent end had the same significance for Mrs. Dawson as lack of work had for any substandard operator at any time on any line about to close down. While it might, as the General Counsel argues, be possible to find some sinister significance in the fact Mrs. Dawson was given her last warning on the afternoon of the very day Respondent learned she was for the Union and in the fact conditions for her continued employment were then set which she was unable to meet, no such significance attaches to the fact she was laid off for 3 weeks and then terminated. Re- spondent would not, in the ordinary course of events, have known before she left the plant on September 28 whether she had met the test it laid down for her on September 21. Thus, even if Mrs. Dawson's case is viewed alone, I do not think the General Counsel has sustained his burden. None of the remaining seven comes as close as Mrs. Dawson to meeting the weight of the evidence test. As to Cloteria Robinson and Rose Elliott, the other two at Stark- ville, both were problem operators, both were warned about their low production before union activity began in Starkville, both were given a standard to meet as a condi- tion of continued employment, both failed the test. The only fact that can be thrown into the scale on the other side is Respondent's opposition to the Union. Even if the Gen- eral Counsel were to rely on the September 21 incident in the ladies room as an explanation of why Respondent de- cided to get rid of Mrs. Robinson (and, because failure to get rid of her would spotlight its antiunion motive for dis- and September the 12th or 13th we started campaigns at Lambert Mills, at Eupora, Mississippi , Starkville and Carthage . It's supposed to be a total of six towns." 615 charging Mrs. Robinson, Miss Elliott), the scale would still not tip in his favor. With respect to the remaining five women at Kosciusko, the threshold fact in any weighing of the evidence is the economic necessity for a reduction in force. The General Counsel's attack on Respondent's use of its seniority sys- tem and his argument that Respondent's stated reasons for discharge are incredible applies especially to these cases. As to seniority, the parts of Respondent's policy manual which I have quoted above prove beyond any doubt that its policy is what it says it is. The General Counsel's under- lying quarrel with Respondent's application of that policy is ill-conceived. The General Counsel reads a sinister sig- nificance into Respondent's use of seniority when it fol- lows its policy, into its failure to use it when it fails to follow it. But the most significant point about Respondent's seniority policy is that there is no collective- bargaining agreement in effect at any of the plants in- volved in this proceeding. Absent a contractual right of its employees to have decisions with respect to their employ- ment made strictly on the basis of seniority, the question is not whether Respondent followed or did not follow se- niority but whether the explanation for each of its actions will stand the closest possible scrutiny in the context of its admitted hostility to the Union. As with the whole thrust of the General Counsel's argument, the test is whether Respondent's stated reasons for discharging all nine of these women is credible or incredible. One aspect of this record above all others persuades me that they are credible. In my opinion, the state of Respondent's knowledge of union activity when various significant events occurred is the controlling point. The Charging Party's organizing campaign "simmered" in Philadelphia to "about the third week in August" when, according to Jackson, it opened in Kosciusko. (My findings in the section above headed "Respondent's response to the organizing campaign" that Forsyth was actually assigned to Kosciusko in the last week in August is based on the record as a whole. The earliest suggestion in the record that any of the employees involved in this proceeding was aware of any activity by the Charging Party's professional organizers prior to Sep- tember 4 is the testimony of Pearlean Cummins that she became aware of the meeting to be held on that date in "late August.") "Simmered" is never really elucidated. The only evidence which bears at all on what went on in Phila- delphia in this period is a statement by Jackson that the Union obtained its first authorization card in Philadelphia in July. "About the third week in August" translates, at best for the General Counsel's case, to the week beginning Sunday, August 12. If Jackson meant the third full week in August, it means that he told Forsyth to go to Kosciusko sometime during the week of August 19. The General Counsel never tried to pin down exactly how Much overt union activity by Respondent's employees took place in Philadelphia or just when Forsyth went to Kosciusko. He dueled with various officials of Respondent about the state of their knowledge of union activities among Respondent's employees at various stages in the process which led up to the granting of the October 2 raise. The most he was able to get was an admission that, by the first week in Septem- ber, Respondent was aware union organizers were busy in 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Philadelphia. This was not even enough to cause a discus- sion at the Biloxi conference on August 30 and 31 about how to counter the Charging Party's campaign, as this part of the testimony of Charles Kinney, a manufacturing man- ager, makes clear: Q. At the time of this managers meeting [in Sep- tember] were you aware of any existing union activity in any plants of Garan? A. The only awareness that I had at that time was some activity that had been going on in Philadelphia. Q. Now, was the matter of the union activity at Philadelphia discussed at the Biloxi meeting? A. Well, to my recollection, the only mention was that there was another plant there that had been hav- ing some activity , U.S. Motors-I forget the name of it, but anyway, that there were organizers in the town and that it seemed to be spreading out a little bit, and that's the only recollection that I have of that discus- sion. Therefore, this record will not sustain a finding that Re- spondent was motivated to do anything by knowledge it gained of the Charging Party's activities in Philadelphia prior to Forsyth's arrival in Kosciusko. Apparently the General Counsel is in agreement with this conclusion, for, although there is no express statement to that effect in his brief, nowhere does he base his argument on such a find- ing. As indicated by my finding in the section above devot- ed to "Respondent's response to the organizing campaign" that "Respondent first learned of the Charging Party's Mississippi campaign" on the morning of September 5, "when Alice Payne, plant personnel manager, told Alston Willette, plant manager, there were authorization cards in the Kosciusko plant," I am persuaded Respondent's first knowledge of union activity among its employees that trig- gered any activity of its part came in the first week in September. Even if I were to infer that Respondent learned of Forsyth's arrival and was motivated by it the moment he got to Kosciusko the week before, the General Counsel's case would not be strengthened. The General Counsel's attempt to demonstrate that Respondent's stated reason for discharging these nine women will not stand up under scrutiny turns on the prop- osition that it is impossible to believe each of these women could have gotten into the position she found herself in at the time of her discharge without being deliberately ma- neuvered into it by Respondent so that Respondent, at the moment of discharge, could use seniority, if that served its pretextual purpose, or some other reason, if that served its pretextual purpose , as its ostensible reason . In other words, Respondent set them up before it discharged them. For example, Alice Fondren only got to be the junior employee on patch pocket set just before Respondent turned to se- niority as the basis for reducing that line by one because other employees junior to her were permitted to transfer to other jobs without regard to seniority as the work dwindled while she was not offered a similar opportunity. If Respondent's knowledge of Mrs . Fondren's union activi- ties only at the time she was discharged and only the dis- charge itself are taken into consideration , obviously Re- spondent acted with knowledge and could have been dis- criminatorily motivated . But, in order for the actions by Respondent which led up to Mrs . Fondren's being the jun- ior employee on the day of her discharge to have been discriminatorily motivated as part of a plot to set her up for discharge, it must be shown that Respondent had some knowledge of union activity when those events took place. The General Counsel's case breaks down at this point. In Mrs. Fondren's case, the line began to dwindle before Au- gust. The General Counsel has not established that any of the operators who went to other lines, even the two who left after Willette's and Bennett's optimistic statements about enough work to last until Christmas , transferred af- ter Forsyth got to town . Mrs. Vowell was transferred back to marking from bundling even before organizing began in Philadelphia. The General Counsel has failed to prove that even the conversation in which Paul Newell told her he was going to give her some paperwork to do because marking work was getting scarce took place after Forsyth came to town. Pearlean Cummins became the sample coordinator in July and Minnie Atterberry began inspecting on August 13, once again well before any union activity which could have motivated their transfers. In the case of Nina Chris- tine Allen, to whom Respondent did not apply its seniority system, its reasons for not doing so strike me as eminently reasonable. It could have discharged her on the basis of seniority when work for her ran out on the yoke set line. Instead, it made a job for her for 2 weeks more because it thought she would be leaving for the Air Force at any time. When that work ran out, it let her go. The treatment ac- corded her does not bear the slightest scent of pretext. Rather, it reeks of accommodation to her needs. The most that can be said of any of these nine women is that other employers faced with the same situation might have reached different decisions than Respondent about whether to terminate their employment. A conclusion, however, that Respondent's stated reasons are not good reasons or even a conclusion that Respondent's stated rea- sons are suspicious reasons falls far short of a conclusion that Respondent's stated reasons are pretexts masking ille- gal reasons in the absence of more evidence than is present here for establishing a motive proscribed by the Act . I find, therefore, the General Counsel has failed to prove by a preponderance of the evidence that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Shirley Vowell on September 25, Geraldine Stephens and Pearlean Cummins on September 26, Minnie Atterberry and Alice Fondren on October 12, Nina Christine Allen on October 15, Carolyn Dawson on October 22, and Cloteria Rob- inson and Rose Elliott on November 5, 1973. C. The Inventory Issue The last unfair labor practice alleged in the complaint is that Respondent "denied available work to" Minnie Atter- berry, Floyce Ellington, Nell Wasson , Betty Wasson, Be- atrice Rosomond, and Linda Melton on October 1 "by refusing to permit them to participate in taking inventory" at Kosciusko. Respondent's fiscal year ends on September STARKVILLE, INC. 30. It annually takes a physical inventory at the end of its second and fourth quarters, i.e., on April 1 and October 1. The plant is shut down on these occasions, and only those employees who are specially invited to participate earn a day's pay by working on the inventory. Each of the em- ployees named in the complaint worked on inventory days prior to October 1. None was invited to work on October 1. The inventory is organized by appointing a team captain for each of the various areas of the plant. The team captain then selects the employees to work under her and do the actual count in her area. On occasions prior to October 1, rank-and-file employees and supervisors were picked by Willette as team captains. For the October 1 inventory, Willette named only supervisors. He gave them no instruc- tions about which employees to select as their helpers. Just before October 1, Minnie Atterberry asked her su- pervisor, Dot Vowell, if Mrs. Vowell was going to need her to help on the inventory. Mrs. Vowell replied, "No, we can't use you people this year." Mrs. Vowell said this be- cause it was the interpretation she had placed on instruc- tions received from Willette about how supervisors should conduct themselves during the organization campaign cou- pled with the manner in which Willette had reacted when he received the letter on September 13 in which 38 Kos- ciusko employees "made company knowledge." (A day or two after September 13, Mrs. Vowell had told Mrs. Atter- berry that supervisors had been instructed to ignore em- ployees who had signed the letter.) The inventory taken on October 1 required fewer people than the one taken on April 1 because there were fewer items in the plant to be counted. Thirty-nine persons, both supervisors and employees, worked on October 1, 62 on April 1. By contrast, 43 persons were required to take in- ventory on October 2, 1972. A total of 83 persons worked on one or more of these three inventories . Twelve of them, including all 6 women named in this allegation of the com- plaint, were among the 38 persons who "made company knowledge." (One employee who signed the company knowledge document used her initials only. Therefore, it is impossible to check his name against the 83 names on the exhibit which lists persons who worked on the two invento- ries taken in 1973 and the one taken on October 2, 1972.) None of them worked on October 1. Six had worked on both of the two prior inventories. Five had worked on April I but not on October 2, 1972. One had worked on October 2, 1972, but not on April 1. Of the 71 persons who had not "made company knowledge," 33 did not work on October 1. Of the 38 who did, 14 had worked on both April I and October 2, 1972; 12 had worked on April 1 but not on October 2, 1972; 11 had not worked on either April 1 or October 2, 1972, and one had worked on October 2, 1972, but not on April 1. The possibility that all employees who "made company knowledge" among those who had worked on prior inven- tories would not be invited to work on the October 1 inven- tory because of chance is so remote as to be nonexistent. In the context in which it was made , Mrs. Vowell's reference to "you people" can only have meant employees who had "made company knowledge." I credit Willette's testimony that he did not instruct his supervisors not to select known union adherents. However, Respondent is as responsible 617 for the actions of Mrs. Vowell and its other lower-level supervisors as it is for the actions of supervisors at the plant manager and higher levels . Mrs. Vowell and other supervisors were discriminatorily motivated in choosing employees to work on October 1. I find , therefore, Respon- dent violated Section 8(a)(3) and (1) of the Act when it refused to permit known union adherents , including but not limited to Minnie Atterberry, Floyce Ellington, Nell Wasson, Betty Wasson, Beatrice Rosomond, and Linda Melton, to participate in taking inventory on October 1 because of their union activities. III. THE OBJECTIONS TO THE ELECTION The objections to the election held at the Kosciusko plant on December 7 which have been referred to me for hearing are the same as the allegations that Respondent committed unfair labor practices by granting a wage in- crease, discriminatorily discharging six employees, and dis- criminatorily denying inventory work to six employees at that plant. I have found merit only as to the latter. Howev- er, the discrimination openly practiced against known union adherents in that manner was sufficiently pervasive to invalidate the election, especially when considered against the background of Respondent's active opposition to the Charging Party's campaign to organize its employ- ees. I recommend, therefore, that the election held on De- cember 7 among a unit of production and maintenance employees at Respondent's Kosciusko plant be set aside and a second election conducted. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Starkville, Inc.; Hillsdale Mfg. Corp.; Lambert Mills, Inc.; and Garan, Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Clothing Workers of America, AFL- CIO, is a labor organization-within the meaning of Section 2(5) of the Act. 3. By singling out prounion employees on October 29 and 30, 1973, at its Starkville, Mississippi, plant by calling them out from the midst of their coworkers to attend meet- ings in the plant manager's office and conducting those meetings in a manner reasonably calculated to deter em- ployees from supporting a labor organization and by inter- rogating its employees concerning their union membership, sympathies, and desires, on various dates in October 1973 at its Starkville and Kosciusko, Mississippi, plants, Re- spondent has violated Section 8(a)(1) of the Act. 4. By discharging Brenda Purnell at its Starkville, Mis- sissippi, plant on September 24, 1973, and Andrew Gordon at its Lambert, Mississippi, plant on October 4, 1973, for engaging in union activities, and by refusing to permit pro- union employees, including but-not-limited to Minnie At- terberry, Floyce Ellington, Nell Wasson, Betty Wasson, Beatrice Rosomond, and Linda Melton, to participate in taking inventory at its Kosciusko, Mississippi, plant on Oc- tober 1, 1973, because of their union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. . 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. The allegations of the complaint that Respondent vio- lated Section 8(a)(1) of the Act by granting a wage increase on October 2, 1973, in order to induce its employees not to support a labor organization; by threatening employees at its Kosciusko, Mississippi, plant on September 4, 1973, with layoff, and on October 2 and 23, 1973, with plant closure if they selected a labor organization as their bar- gaining representative or otherwise supported it, and by interrogating an employee concerning her union member- ship, sympathies, and desires at its Lambert, Mississippi, plant during the first week in October 1973 have not been sustained. 7. The allegations of the complaint that Respondent vio- lated Section 8(a)(3) and (1) of the Act at its Starkville, Mississippi, plant by discharging Carolyn Dawson on Oc- tober 22, 1973, and Cloteria Robinson and Rose Elliott on November 5, 1973, and at its Kosciusko, Mississippi, plant by discharging Geraldine Stephens and Shirley Vowell on September 25, 1973, Pearlean Cummins on September 26, 1973, Minnie Atterberry and Alice Fondren on October 12, 1973, and Nina Christine Allen on October 15, 1973, have not been sustained. THE REMEDY In order to effectuate the policies of the Act, it is neces- sary that Respondent be ordered to cease and desist from the unfair labor practices found, remedy them, and post the usual notice at the three plants at which it has been found to have committed them. I will, therefore, recom- mend Respondent be ordered to reinstate Brenda Purnell and Andrew Gordon and make them whole for any earn- ings lost as a result of the discrimination against them by the payment of backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). In addition, I will also recommend Respondent be ordered to make whole all employees discriminated against by being denied an opportunity to participate in the inventory held on Oc- tober 1, 1973, in Kosciusko by paying them the wages they would have earned if they had worked that day plus inter- est at 6 percent per annum. Since the issue of which em- ployees in addition to those specifically named in the com- plaint were discriminated against in this manner was fully litigated, this remedy will not be limited to Minnie Atter- berry, Floyce Ellington, Nell Wasson, Betty Wasson, Be- atrice Rosomond, and Linda Melton, but will include those of the other six employees who did not participate in the October 1 inventory after "making company knowledge" although they had worked one or both of the two prior inventories. Shirley Vowell and Pearlean Cummins will not be made whole because they were legally discharged prior to October 1. Nina Christine Allen will because she, like Minnie Atterberry, was still employed as of October 1. Carolyn Bingham, Betty Huggins, and James Russell will if, during the compliance stage of this proceeding, it is de- termined that they were employed at Respondent's Kos- ciusko plant as of October 1. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 Starkville, Inc.; Hillsdale Mfg. Corp.; and Lambert Mills, Inc., wholly owned subsidiaries of Garan, Inc., their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Singling out prounion employees by calling them out from the midst of their coworkers to attend meetings in a plant manager's office and conducting those meetings in a manner reasonably calculated to deter employees from supporting a labor organization. (b) Interrogating employees concerning their union membership, sympathies, and desires. (c) Discharging employees for engaging in union activi- ties. (d) Refusing to permit prounion employees to partici- pate in taking inventory because of their union activities. (e) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Brenda Purnell and Andrew Gordon immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and priv- ileges, and make them whole for any earnings they lost, plus interest, as a result of their discharges on September 24 in Starkville, Mississippi, and October 4, 1973, in Lam- bert, Mississippi, respectively. (b) Make whole Minnie Atterberry, Floyce Ellington, Nell Wasson, Betty Wasson, Beatrice Rosomond, Linda Melton, Nina Christine Allen, and any other employees who were denied an opportunity to participate in the in- ventory taken in Kosciusko, Mississippi, on October 1, 1973, because of their union activities for earnings they lost, plus interest, as a result of the discrimination against them. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at their plants in Starkville, Kosciusko, and Lambert, Mississippi, copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by 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. it In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by STARKVILLE, INC. 619 the Regional Director for Region 26, after being duly signed by Respondent's authorized representative, shall be posted immediately upon receipt thereof, and be main- tained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges Respondent violated Section 8(a)(1) of 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." the Act by granting a wage increase on: October 2, 1973, in order to induce its employees not to support' a labor orga- nization ; by threatening employees at its Kosciusko, Mis- sissippi, plant on September 4, 1973, with layoff, and on October 2 and 23, 1973, with plant closure if they selected a labor organization as their bargaining representative or otherwise supported it, and by interrogating an employee concerning her union membership, sympathies, and desires at its Lambert, Mississippi, plant during the first week in October 1973; and insofar as it alleges Respondent violat- ed Section 8(a)(3) and (1) of the Act at its Starkville, Mis- sissippi, plant by discharging Carolyn Dawson on October 22, 1973, and Cloteria Robinson and Rose Elliott on No- vember 5, 1973, and at its Kosciusko, Mississippi, plant by discharging Geraldine Stephens and Shirley Vowell on September 25, 1973, Pearlean Cummins on September 26, 1973, Minnie Atterberry and Alice Fondren on October 12, 1973, and Nina Christine Allen on October 15, 1973.