The Contract Knitter, Inc.

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Contract Knitter, Inc. and International Ladies' Garment Workers' Union, AFL-CIO. Cases 10- CA-10540 and 10-CA-10584 September 24, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On October 30, 1974, Administrative Law Judge John G. Gregg issued the attached Decision in this proceeding. Thereafter, the Respondent and the Charging Party filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith and to adopt his recom- mended Order, as modified. The Charging Party excepts to the denial of its re- quest that a bargaining order be issued in this case. We agree with the Administrative Law Judge's con- clusion that a bargaining order should not be given, but we do so for different reasons. The Administra- tive Law Judge denied the request "taking into ac- count the balancing effect of the recommendations of the Regional Director of the 10th Region in his Report on Objections and Challenged Ballots, Case No. 10-RC-9842, May 24, 1974, that the election be set aside because of certain conduct of the Union." We do not agree with that rationale. In the represen- tation case issued today,' we are overruling the Employer's objections to the election based on the Union's conduct and directing the Regional Director to open and count certain challenged ballots and to issue the appropriate certification based on the re- vised tally of ballots. Accordingly, we do not adopt the reasons stated by the Administrative Law Judge for denying the Union's request. 1. Our basis for not issuing a bargaining order is more fundamental. The evidence is insufficient, in our opinion, to establish that the Union ever repre- sented a majority of the employees in the unit. The law favors original documentary evidence over testimony about documents as the best evidence of the contents of the documents. 32 C.J.S. Evidence I The Contract Knitter, Inc., 220 NLRB 579 (1975) § 75. This rule is based on the policy consideration that testimony about documents is subject to errors of recollection whereas the actual writings them- selves preclude any such errors. 4 Wigmore, Evidence § 1179 (Chadbourn rev. 1972). No signed union authorization cards were authen- ticated or introduced in evidence .2 Instead of intro- ducing any signed cards, the Union relies on estima- tions, approximations, and recollections as to the number of cards signed by unnamed employees whose identity is not disclosed by the record. Three witnesses who are found in this case to have been discharged because of their union activities gave estimations as to the number of cards signed. Norma Bates testified: Q. Approximately how many cards did you obtain from this person? A. I don't know; I guess about 150. Q. Did you do anything with those cards? A. Yes, sir. Q. What did you do? A. I got them signed. Q. What did you do with the cards once you got them signed? A. I gave them to Mrs. Inez Kelley. In her testimony Mary McQuaig was asked: Q. Approximately how many cards did you obtain, Mrs. McQuaig? A. It was a big of stack of them. I don't know how many was in it because we divided it. * Q. Approximately how many cards did you get signed? A. Well, I turned in 73 at one time. Timothy Hall testified: Q. What, if anything, did you do with respect to that union activity? A. I attended a meeting on October the 5th. Q. What else, if anything? A. I attended another meeting on October 7, and later that week we received union cards, I distributed cards and had them signed. Q. Approximately how many cards? A. Around 30 or 40, I guess. In addition, Union Organizer Inez Kelley testified regarding a union meeting on October 7, 1973, which was attended by 26 employees, that: " I saw several of the people there filling them out to mail in." We are not persuaded that the foregoing testimony 2 The Union has not proffered any reasons to explain why the cards were not introduced into evidence nor does the record suggest any reasons. 220 NLRB No. 30 THE CONTRACT KNITTER, INC. establishes that the Union represented a majority of the unit employees. In response to the comments of Member Jenkins in his partial concurrence and partial dissent that as many of 249 of the Respondent's 280 employees des- ignated the Union as their bargaining representative, ". . . assuming there were no duplications," we are not willing to make this assumption. Had the Union presented the best evidence, it would not be neces- sary to make the assumption. We are not willing to accept secondary evidence and then make a further assumption to bolster the value of that evidence when the best evidence is available but not used.' In his concurrence and dissent, our colleague em- phasizes that the testimony about the cards was not contested, objected to, or rebutted. This fails to rec- ognize that all of the testimony about the cards is vague and was adduced upon direct examination by the General Counsel, who has not sought a bargain- ing order at any point in these proceedings up to and including the present. This testimony was not ampli- fied upon in any manner in the examination by counsel for the Union. Since the General Counsel was not seeking a bargaining order the Respondent had no reason to contest, object to, or rebut the evi- dence concerning majority. At the time of the election on January 23 and 24, 1974, there were approximately 280 eligible voters. The Union received 132 votes and there were 122 votes against union representation. In addition, there were 17 determinative challenged ballots, and 1 void ballot. The Union now asserts that it now has "an electoral majority" at this time. While it is clear that the Union is ahead in the vote count at this point, the true results of the election will not be known until certain determinative challenged ballots have been counted pursuant to our separate representation case decision being issued today. Until the revised tally of ballots is issued, the final outcome of the election will not be known. Therefore, we find no merit in the Union's claim that it presently has "an electoral ma- jority." Accordingly, for all of the foregoing reasons, we shall deny the Union's request for a bargaining or- der. 2. We agree with the Administrative Law Judge's 7 Moreover, we note that Member Jenkins arrives at the figure of 249 signed authorization cards by adding the 150 signed authorization cards Bates testified she obtained and 73 cards McQuaig testified she obtained to the 26 cards Kelley testified she distributed at a union meeting. However, this total is contrary to the testimony of Bates that she and McQuaig togeth- er obtained 150 cards , the contention of the Union in its brief that Bates and McQuaig jointly obtained 150 cards, and the finding of the Administrative Law Judge that Bates and McQuaig obtained 150 signed authorization cards all totaled and delivered them to Kelley. 4 The Administrative Law Judge found , and we agree, that employee Townsend was discriminatorily discharged in violation of Sec. 8(a)(3) and (1) of the Act. His Decision , however, inadvertently fails to mention 559 findings of violations of Section 8(a)(3),4 (2), and (1) 5 except as to the finding based on the no-solicitation rule. On October 11, 1973, Respondent promulgated and posted the following rule: Solicitation and/or distribution of literature by nonemployees on company property is prohib- ited. Solicitation by employees on company property during working time, which in any way inter- feres with work is prohibited. Distribution of literature by employees on com- pany property in nonworking areas during working time, which in any way interferes with work, is prohibited. An employee is not to enter the plant or remain on the premises unless he is on duty or sched- uled for work. The Administrative Law Judge found that the rule was too broadly restrictive and ambiguous to meet the test of a valid rule. Relying on Daylin Inc., Dis- count Division d/b/a Miller's Discount Dept. Stores,6 the Administrative Law Judge concluded that the rule did not make clear the fact that it did not cover breaktime, lunchtime, or the like. He therefore con- cluded that it infringed on the rights of employees. Accordingly, he found that the promulgation and posting of the rule violated Section 8(a)(1). The Administrative Law Judge did not consider, however, the Board's decision in Essex International, Inc.7 In that decision, we noted that "working time" (as distinguished from "working hours") connotes the period of time that is spent in the performance of actual job duties, which would not include time allot- ed for lunch and break periods. We found therein that the use of that term in a no-solicitation or no- distribution rule would clearly convey the meaning to employees that they are free to engage in solicita- tion or distribution during lunch and break periods. Accordingly, we conclude that a rule which prohibits solicitation or distribution during "working time" or Townsend's union activity. We therefore note that the record discloses that Townsend had signed a union card, had solicited union support among the knitters, and had conspicuously worn a union button on the day prior to his discharge. 5 The Administrative Law Judge found that Respondent through its presi- dent, Pearson, promised employees greater economic benefits on November 21, 1973, if the Union were rejected and thereby violated Sec. 8(a)(l). Re- spondent excepts to this finding, relying on the fact that the complaint alleges that such activity took place on December 20, 1973, and urges that failure to amend the complaint to show the proper date is fatal to the finding. We disagree with this contention . The failure formally to amend the complaint to conform to the evidence is not prejudicial to Respondent. The issue was fully litigated and the findings were related to the general subject matter of the complaint . The Administrative Law Judge therefore properly found the violation . See Rochester Cadet Cleaners, Inc., 205 NLRB 773 (1973). 6 198 NLRB 281 (1972). ' 211 NLRB 749 (1974) (Members Fanning and Jenkins dissenting). 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "worktime" is valid on its face. We therefore do not adopt the Administrative Law Judge's finding that Respondent violated Section 8(a)(1) by the promul- gation and posting of the aforesaid rule. The record discloses, however, that despite the rule several employees were solicited with Respondent's permission and participation 8 by other employees at their work stations during working time to join the employee committee. Thus, employee White was so- licited by employee Mackey,9 employee Shepard was solicited by employee Jenkins and Montgomery, em- ployee Lollar was solicited by employee Jenkins, and employee Hall was solicited by employee Mackey. We find that this disparate enforcement of the rule violated Section 8(a)(1) of the Act.10 Finally, contrary to our colleague in his separate opinion partially concurring and partially dissenting, we do not believe that Respondent's rule forbidding distribution of literature by employees on company property in work areas is violative of the Act per se. The law is clear that employees have a right to dis- tribute literature during nonworking time in non- working areas of plant premises. Pepsi-Cola Bottling Co. of Los Angeles, 211 NLRB 870 (1974); Stod- dard-Quirk Manufacturing Co., 138 NLRB 615 (1962). However, an employer may forbid distribu- tion of literature in work areas at all times so that the Employer can keep work areas of the plant orderly and clear of litter. Erie Marine, Inc., Division of Litton Industries, 192 NLRB 793 (1971); Tabin-Picker & Co., 50 NLRB 928 (1943). The importance of pre- cluding distribution of literature in work areas at all times cannot be gainsaid. Thus, the Respondent's rule proscribing distribution of literature in working areas of the plant does not violate the Act. Pepsi-Cola Bottling Co. of Los Angeles, supra. Our colleague finds that the rule violates the Act arguing that it could be applied with equal force when employees are on breaktime as well as during worktime. This reasoning is erroneous since the dis- tinction between worktime and breaktime applies only to rules affecting nonwork areas. Pepsi-Cola Bottling Co. of Los Angeles, supra. Our colleague measures the validity of the rule by the wrong stan- dard and therefore has arrived at a wrong result. s See the Administrative Law Judge's discussion of 8(a)(2) activity adopt- ed herein. 9 Administrative Law Judge inadvertently stated that White was solicited by Hall. 10 H. & F. Bench Co., 168 NLRB 929 (1967); Northern Metal Products Company, 171 NLRB 98 (1968); Hunter Outdoor Products, Inc., 176 NLRB 449 (1969). While we note that the General Counsel alleged as unlawful only the promulgation and announcement of the no-solicitation, no-distribution rule, we find the conduct disclosed by the record sufficiently related to find a violation in Respondent's disparate enforcement of the rule since it was fully litigated. AMENDED CONCLUSION OF LAW Delete the phrase "and promulgating an unlawful no-solicitation-distribution rule" from the Adminis- trative Law Judge's Conclusion of Law 1 and substi- tute therefor, "and disparately enforcing a no-solici- tation-distribution rule." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby adopts as its Order the recom- mended Order of the Administrative Law Judge, as modified herein, and hereby orders that Respondent The Contract Knitter, Inc., Northport, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(e): "(e) Disparately enforcing a no-solicitation-distri- bution rule." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, concurring and dissenting in part: I agree with my colleagues' findings and conclu- sions except for their disposition of the allegations concerning the no-solicitation rule and the Union's request for a bargaining order. In addition to finding that the Respondent's no- solicitation rule was disparately enforced, I would also find, as did the Administrative Law Judge, that the rule itself was equally violative of Section 8(a)(1) of the Act in two respects. First, consistent with my position in Essex International, Inc., 211 NLRB 749 (1974), I find that the Respondent 's rule forbid- ding distribution in "work areas" (see par. 4) is too broad and could be applied with equal force when employees are on their breaktime as well as when they are expected to be working, without any show- ing of the need for the prohibition. Second, the rule is also invalid because of the obvious discriminatory reasons for which it was promulgated and the dispa- rate manner in which it was enforced. Thus, the Re- spondent permitted (and indeed initiated) various in- trusions upon employee working time, including the circulation of petitions, for the avowed purposes of winnowing employees away from the Union and winning converts to the "Employees Grievance Com- mittee." But, at the same time, the Respondent de- nied the employees the same opportunity to solicit and distribute literature for the Union. Therefore, as our colleagues agree, it is abundantly clear that the discriminatory enforcement of the no-solicitation and no-distribution rule "does not give a fair balance THE CONTRACT KNITTER, INC. to § 7 rights." N. L.R. B. v. Magnavox Company of Tennessee, 415 U.S. 322, 326 (1974). Thus, the Respondent's conduct convincingly rebuts any pre- sumption that the imposition of such a broad ban on this protected activity was motivated by legitimate business considerations. Therefore, even if the rule were valid, as my colleagues maintain, any presump- tion of validity is effectively rebutted by the Respondent's own flagrant disregard for its prohibi- tions. See Daylin Inc., Discount Division, d/b/a Miller's Discount Dept. Stores, 198 NLRB 281 (1972). The Administrative Law Judge rejected the Union's request for a bargaining order, and my col- leagues adopt this recommendation, in spite of our findings that the Respondent engaged in outrageous and pervasive misconduct. Thus, without denying the disparaging effect of such serious violations, my col- leagues now deny this requested remedy because they are not satisfied that the record adequately sup- ports the Union's claim of majority status. I disagree. The testimony of employee Norma Bates estab- lished that she returned to Union Representative Inez Kelley about 150 signed authorization cards, and the testimony of employee Mary McQuaig es- tablished that she returned to Kelley 73 signed au- thorization cards at one time. In addition, Union Representative Kelley testified that she distributed another 26 cards at a meeting. An undetermined number of these signed cards were received through the mail at the Union's Atlanta office." No objection was taken to this undenied, uncontradicted testimo- ny. Therefore, assuming that there were no duplica- tions, and that no one else solicited and received signed cards, as many as 249 of the Respondent's 280 employees designated the Union as their bargaining representative. And even in the most unlikely event-which the Repsondent does not even sug- gest-that all of the employees signing cards distrib- uted by McQuaig and Kelley also signed the cards distributed by Bates, the Union still represented a clear majority of the unit. Indeed, the same result obtains even if it is assumed, as my colleagues sug- gest, that the 150 signed cards which Bates returned to Kelley included the 73 signed cards turned in by McQuaig. Moreover, this tally does not include the undetermined number of additional signed cards re- ceived through the mail at the Union's Atlanta office. In an effort to thwart this strong prounion drive, the Respondent waged an extensive antiunion campaign, 11 Employee Timonthy Hall testified that he solicited between 30 and 40 signed cards . However I have not relied on this testimony because there is no direct evidence that he, unlike Bates and McQuaig, personally received these cards from the Union. Rather, it appears that he received the blank authorization cards from Bates, whom he was assisting in obtaining signa- tures outside the Respondent's gate, and returned the signed cards to her when he had finished. 561 which included the discharge of McQuaig, Bates, and eight other employees, and the tally of ballots indi- cates that, of 272 ballots, 132 were cast for the Union and 122 against, leaving 1 allegedly void ballot and challenges to 17 others. In the companion representa- tion case, we have decided that the recommendation on the void ballot should be affirmed, the I chal- lenged and segregated ballot be counted for the Union, challenges to 2 ballots be sustained, and the remaining 14 ballots be opened. Ten of these ballots were cast by persons now found to have been dis- criminatorily discharged in violation of Section 8(a)(3), including McQuaig and Bates. Thus, as mat- ters stand now, the Union has received 133 votes out of 269, or 2 short of a majority, with the 14 chal- lenged ballots yet to be opened. In sum, all that is needed by the Union for certification are the votes of McQuaig and Bates, the Union's leading proponents. To be sure, the evidence here, which is testimony as to the number of cards signed, does not establish the Union's majority as conclusively as the cards themselves. This evidence, however, was not contest- ed, objected to, or rebutted. We emphasize this point because it indicates that a substantial number of em- ployees who signed cards (at least 3 and perhaps as many as 116) did not ultimately vote for the Union in the subsequent election. It can hardly be disputed that the Respondent's massive unfair labor practic- es-including the successful establishment of a "company" union-tended to contribute to a dropoff of the Union's support. Thus, though I would ordinarily prefer more spe- cific and explicit proof of the Union's majority in the manner usual where the majority is contested, I deem the evidence of majority sufficient in the present cir- cumstances to support a bargaining order. Particular- ly is this true in the light of the Supreme Court's observation in Gissel 12 that "in `exceptional' cases marked by `outrageous' and `pervasive' unfair labor practices," a bargaining order might be the only "ef- fective remedy," even "without need of inquiry into majority status" of the union." This, in my judgment, is such a case, in which the Respondent's massive retaliation makes a "fair and reliable election" im- possible.14 Consequently, it appears to me that the statutory purpose and standard, as interpreted by the Supreme Court, dictates that we find the Union's majority sufficiently proved here. The Second Circuit has just recently granted a bar- gaining order in a 10(j) proceeding after a union loss of an election. Seeler v. Trading Port, Inc., 89 LRRM 2513, 2515 (1975). After citing Gissel, the court held: 12 N.L.R B v. Gissel Packing Co, Inc, 395 U.S. 575 (1969). 131d at 613-614. 14 Id. at 614. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Just as a cease and desist order without more is ineffective as final relief in a Gissel situation, it is, in certain cases, also insufficient as interim relief. If an employer faced with a union de- mand for recognition based on a card majority may engage in an extensive campaign of serious and pervasive unfair labor practices, resulting in the union's losing an election, and is then merely enjoined from repeating those already successful violations until final Board action is taken, the Board's adjudicatory machinery may well be rendered totally ineffective. A final Board deci- sion ordering a new election will leave the union disadvantaged by the same unfair labor practic- es which caused it to lose the first election. Even if the Board finally orders bargaining, probably close to two years after the union first demand- ed recognition, the union's position in the plant may have already deteriorated to such a degree that effective representation is no longer possi- ble. The court further noted that "the status quo which deserves protection under § 10(j) is not the illegal status quo which has come into being as a result of the unfair labor practices being litigated," but the "preserving or restoring [of] the status quo as it ex- isted before the onset of unfair labor practices," cit- ing Gissel, 395 U.S. at 612. The Second Circuit recognized that In granting a bargaining order in favor of a union which has lost an election and can claim a majority only on the basis of authorization cards, the district court runs the risk that the employees, even if uncoerced, would not have chosen the union in the election. However, as the Supreme Court held in Gissel, "cards, though admittedly inferior to the election process, can adequately reflect employee sentiment when that process has been impeded ...." 395 U.S. at 603. Furthermore, as the Court pointed out, once bargaining is ordered the union must at- tempt to do its best for the majority in order to maintain its position. 395 U.S. at 612 n. 33. There is nothing permanent about any bargain- ing order ...." These principles are as applicable to bargaining or- ders issued by this Board as to those issued by Dis- trict courts. The proof of the union majority here may be somewhat less clear than if the individual authorization cards were examined one by one. Yet the proof is not controverted, seems sufficient to me, and is plainly the only reasonably reliable method available for determining employee sentiment if the Union loses the election. To reject such proof, as my colleagues do, allows the Respondent to enjoy the fruits of its misconduct. Accordingly, I think a contingent bargaining order is entirely warranted in the circumstances of this case, especially in view of the 8(a)(2) and 8(a)(3) findings, with which my colleagues agree. Indeed, the bargaining order, clearly setting forth the obligation to deal with the employees' representative and no one else, is, I believe, the most appropriate remedy for the 8(a)(2) violation. While the complaint contains no 8(a)(5) allegations, Gissel of course does not require such a finding as a sine qua non, and still less does Steel-Fab 11 impose such a requirement. Rather, it is for us to to determine whether in aggravated cases, such as the instant case, substantial violations tend to preclude a fair and free election from being conduct- ed in the near future. I have no difficulty in finding that to be the situation here. 13 Steel-Fab, Inc., 212 NLRB 363 (1974). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Norma Bates, Mary McQuaig, Timothy Hall, Judy Jones, Debra Higginbot- ham, Bobby Johnson, Linda Newman, Jeannie Lollar, Carolyn Frierson, Billy Roberts, Charles Townsend, and Connie Sullivan each full rein- statement to his or her former job or, if such job no longer exists, to a substantially equivalent po- sition, and pay each for earnings lost as a result of our unlawful discharges of said employees. WE WILL promptly disestablish the Employee Grievance Committee and hereby repudiate said committee. WE WILL NOT coercively interrogate our em- ployees regarding their union activities and re- garding the union sympathies or activities of fel- low employees, or solicit or request employees to persuade fellow employees not to support the Union. WE WILL NOT threaten plant closure, loss of economic benefits, or economic reprisals against employees should they select the Union to repre- sent them. WE WILL NOT create the impression of surveil- lance of union activity. WE WILL NOT disparately enforce our no-solici- tation-distribution rule. THE CONTRACT KNITTER, INC. WE WILL NOT discharge or otherwise discrimi- nate in regard to hire or tenure of employment of our employees because of their union sympa- thies or activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. THE CONTRACT KNITTER, INC. DECISION JOHN G. GREGO, Administrative Law Judge: This hearing was conducted before me at Tuscaloosa, Alabama, on vari- ous dates in April and May 1974, pursuant to an Order consolidating cases, complaint and notice of hearing dated March 21, 1974, issued by the Regional Director for Re- gion 10 of the National Labor Relations Board, consolidat- ing Cases 10-CA-10540 and 10-CA-10584, each of which was based on charges duly filed and complaints duly is- sued. The consolidated complaint alleges essentially that the Respondent, The Contract Knitter, Inc., committed unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act, by various acts hereinafter specified. At the hearing all parties were given full opportunity to partici- pate and subsequently to file briefs. Upon the entire record in this case, from my careful observation of the witnesses and their demeanor while tes- tifying under oath, and consideration of the briefs submit- ted by the parties, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The Respondent, The Contract Knitter, Inc., is, and has been at all times material herein , a North Carolina corpo- ration with its principal office and place of business at Northport, Alabama, where it is, and has been at all times material herein , continuously engaged in the manufacture of fabrics for the garment industry. During the past calendar year, which period is represen- tative, of all times material herein , the Respondent sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. The Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The International Ladies' Garment Workers' Union, AFL-CIO, and the Employee Grievance Committee each are, and have been at all times material herein, labor orga- nizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 563 A. Preliminary Statement The record establishes some basic chronology which sets the background scene for the events alleged herein as viola- tions of the Act. In January 1973 the Respondent split its one-plant oper- ations into two plants and continued to operate in this manner until October 1, 1973, when the Respondent con- solidated all of its operations into one plant located at a new building in Northport, Alabama. During the period from January to October 1973, the Respondent had em- ployees working at its Gaylord and Warrior locations and some at the new plant at Northport. In October all opera- tions were consolidated at Northport. Union activity was initiated around October 1, 1973, when Norma Bates contacted the Alabama Labor Council asking for assistance in bringing a union into the Respondent's operation for the purpose of representing the employees. A union organizer for the International Ladies' Garment Workers' Union made contact with the Respondent's employees and a meeting was held on Octo- ber 5, 1973, at 7 p.m. in Tuscaloosa. Nine employees at- tended this meeting. At a second meeting days later, about 26 employees at- tended. The process of securing membership cards was ini- tiated and by Thursday, October 11, 1973, 27 employees had volunteered to serve on the Union's organizing com- mittee and signed a declaration which was delivered to the Respondent's personnel director, Joe Junkins. On October 11, 1973, Doc Pearson, president and plant manager for the Respondent, called a meeting of all super- visors at which time after some discussion of production and quality Pearson stated that they were in the midst of a union campaign. He distributed a copy of the list of organ- izers and suggested essentially that the supervisors avoid or observe caution in contacts with those individuals. Pearson also stated that he did not think a union was needed. Pear- son also indicated that there was decline in the quality of fabric coming out of production and that the supervisors were to begin issuing more reprimands for poor quality. The incidents treated herein as alleged violations of the Act occur in the period between October 1, 1973, when the Respondent's operations consolidated in the new plant and January 23, 1974, when an election was conducted by the Board at the Respondent's plant. B. The Alleged Acts of Interference, Restraint, and Coercion 1. Alleged unlawful activity by Billy Lawrence The complaint alleges that Shift Supervisor Billy Law- rence interrogated employees concerning their union mem- bership, activities, and the desires of other employees on October 26 and December 20, 1973, and January 3 and 9, 1974; further alleges that on October 26, 1973, Lawrence solicited employees to persuade other employees to work against the Union and that Lawrence on or about January 11, 1974, solicited employees to persuade their fellow em- 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees to change their minds concerning their support of the Union. Additionally, it is alleged that on or about Jan- uary 11, 1974, Lawrence created the impression that the Respondent had the employees' union activities under sur- veillance by telling employees the Respondent knew that a majority of the black employees were for the Union. During the trial herein the Respondent amended its an- swer to admit those allegations of the complaint concern- ing Lawrence, taking the position that the said allegations were factual but were without legal sufficiency to establish any violation of the Act. I find therefore that Lawrence did in a conversation with employee Paulk about 2 weeks prior to the election ask why Paulk was pushing the Union, and then discussed union dues. I find that subsequently that same day Lawrence told Paulk he wanted Paulk's help in inducing other employees to change their minds, particu- larly the blacks, most of whom were for the Union. I find that Lawrence on several occasions asked Paulk to help him by not letting the Company go union. I also find that on January 3, 1974, Lawrence asked employee Rosie Shep- ard, at her work station, why she wanted a union; that Lawrence similarly approached employee Billie Roberts at her work station in late October 1973 and asked her to go around and talk to employees telling them how much they would pay if the Union were selected and to try to talk them out of joining the Union; and that Lawrence asked employee Eva Hawkins why she wanted a union. I find that, under all the circumstances herein, the foregoing con- duct by Lawrence is clearly an unlawful interrogation by Lawrence of the named employees concerning their union membership, activities, and sympathies and unlawful solic- itation of employees to solicit others not to support the Union each and all in violation of Section 8(a)(1) of the Act. American Manufacturing Company Inc., 196 NLRB 248 (1972); Acme Paper Box Company, 201 NLRB 240 (1973). In so finding, I reject the contention of the Respon- dent that such conduct insofar as it encompasses utteranc- es is protected by Section 8(c) of the Act. I find such utter- ances in the context of relationship of Lawrence to the individuals involved to be coercive and an interference with the protected activity of the employees. 2. Alleged unlawful activity by Marene Baggett The complaint alleges additionally that the Respondent by Assistant Supervisor Marene Baggett interrogated em- ployees on October 17 and 18, 1973 , and January 9, 1974; solicited employees on October 18, 1973, to falsely report the union activities of other employees in order to get them discharged; on or about October 18 and 27, 1973, threat- ened employees with discharge for engaging in union activ- ities; on January 9, 1974, solicited employees to persuade other employees to work against the Union ; and on Janu- ary 10, 1974, threatened employees that they would not receive any pay increases if the Union were selected as their collective-bargaining representative. There was testimony of record by Billie Roberts, for- merly an employee of the Respondent, who stated that ear- ly in October 1973 she wore a union button , signed a union card, and assisted in soliciting employees for union mem- bership. Roberts testified that she had more than one talk with Supervisor Baggett, the first around the middle of October at Roberts' machine when Baggett approached her, looked at her union signs , and said, "that's a good way to get fired," turned around and walked off. Subsequently, in the middle of October, according to Roberts, Baggett ap- proached her at her machine and asked her if Tim Hall had been talking to her about the Union or bothering her. Rob- erts told her he had not. According to Roberts, Baggett then told her that she wanted to get Tim fired, and asked Roberts to go to Pearson 's office with her to tell Pearson that Hall had been bothering her. Roberts refused . Baggett then allegedly told her that, if Tim came back talking to her about the Union or bothering her, she was to inform Baggett who would then take the matter to Pearson. On the other hand, in her testimony Baggett denied ever telling Roberts "that's a good way to get fired ." Baggett stated she did converse with Roberts concerning Hall in late October or early November 1973, after the union cam- paign had started. Baggett had been told by another em- ployee that Roberts was very upset, crying. Baggett went to Roberts' machine and found Roberts upset and crying. Ac- cording to Baggett, Roberts said that Hall and the employ- ee organization had been pressing her and pulling her both ways, one for the union, the other for the employee organi- zation. Baggett testified that she told Roberts that Hall's job required him to go through her line but if he upset her any further she was to see Baggett . Baggett denied telling Roberts she would have Hall fired. Baggett stated that on a subsequent occasion she talked with Roberts about the Union, but denied ever telling Rob- erts that if she supported the Union that was a good way to get fired. Baggett denied specifically asking Roberts if Tim Hall was the one who was bothering her and denied telling Roberts that she would see about getting anyone who bothered her fired. Baggett denied telling Roberts that she would like Roberts to tell Pearson that Hall had been both- ering her. Based on my observation of the demeanor of the wit- nesses Roberts and Baggett as they testified , I credit the version of Roberts who testified in a straightforward and uncontrived manner , responded promptly and directly on cross-examination, and impressed me with her sincerity. On the other hand, I was not convinced that Baggett testi- fied with sincerity. I find therefore, under the circum- stances herein, that Baggett coercively threatened , interro- gated, and solicited Roberts to falsely accuse Hall of bothering her so that Hall could be discharged, each and all in violation of Section 8(a)(1) as alleged in the com- plaint. Continuing with the allegations as to Baggett , there was testimony of record by Edna White, a former employee of the Respondent, who stated that Baggett talked with her about the Union on more than one occasion, the first time on October 17, 1973. White testified that Baggett asked her "did I think that we needed a union, and I told her yes, and she asked me why." According to White, she gave Baggett several rea- sons why a union was needed . Baggett then said nothing and left. Subsequently, in mid-January before the election Baggett asked White what she thought about the Union. THE CONTRACT KNITTER, INC. White responded that she wanted to be neutral about the Union, she was not going to give an opinion . According to White, Baggett told her to talk with Lula Parker, a friend of White's, to persuade her not to vote for the Union. White recalled another occasion in January when Bag- gett told her that if the Union got in "we would not get a pay raise-," and told her that the Company could not afford a strike. In her version of her conversations with White , Baggett recalled only two conversations. In the first, according to Baggett, White called her to White's machine about some defective fabric, and in the course of conversation she asked White whether she was aware that a union campaign was going on. White said she was aware of it, to which Baggett responded that she did not think a union was needed. According to Baggett, White then stated that she "didn't know if we needed this particular union or not. But we needed a union." Baggett asked White what made her think a union was needed, to which White replied that "you can never get the mechanics to do anything that you ask them," that they would not sign for the bad rolls "which was their fault." Baggett testified that later in middle or late November or later she was discussing the strike at the foundry with White and Baggett showed her a leaflet "about if we went on strike how long it would take us to gain back what we lost during the strike." Baggett told White that, the way the energy crisis was and the market for double knit, the Re- spondent could not afford a strike. Baggett did state on cross-examination that she told White that if she had any complaint that Baggett would see if she could help her out without a union, that she would see what she could do about getting the mechanics to sign those cards. Baggett could not recall talking with White about Lula Taylor, and denied telling White that it would knock a hole in everything if the Union came in. Based on my observation of the demeanor of the wit- nesses as they testified, I credit the testimony of White, who testified in an open and straightforward manner and who impressed me with her truthfulness. Accordingly, I find that Baggett did unlawfully interrogate , solicit, and threaten employees in violation of Section 8(a)(1) as al- leged in the complaint. 3. Alleged unlawful activity of Calvin Liverman The complaint alleges that the Respondent, by Shift Su- pervisor Calvin Liverman, on October 26 and December 20, 1973 , and January 3 and 9, 1974, interrogated employ- ees concerning their union membership and activities and that of other employees ; that on or about January 16, 1974, Liverman threatened employees that contrary to present practice the Respondent would send employees home when work on their jobs was not available if the union were selected as collective-bargaining representative. Bernice Davis, a former employee, testified to a conver- sation she had with her supervisor , Liverman, on October 7, 1973, wherein he queried her as to whether Mary Mc- Quaig had given her a union card to sign, and she said that McQuaig had not. Subsequently, when some of the em- ployees told her that she had "told on Mary" Davis quit 565 her employment with the Respondent. Violeana Lewis testified that about a week before the election Liverman discussed the upcoming election with her, told her "you know how we feel about it," told her of the benefits, that no union could give those benefits, and what would happen if the union came in, for instance, "if the union was in, and we didn't have anything to do, like our machine wasn't running, they could send us home. And without the union they would find us something to do." According to Lewis, Liverman asked her if she was going to vote for the Union or against the Union to which she responded she wouldn't talk against or for the Union. Calvin Liverman testified that a week before the election he had a conversation with Lewis in which he told her how he and the Company felt about the Union, that a union was not needed and that the confusion caused by the Respondent's move would soon be over and things back to normal. Liverman denied telling Lewis that if the Union came in the Respondent would send home employees who had no work for their machines. Liverman testified to the conversation he had with Da- vis. He had heard that she was upset because other em- ployees wouldn't go on breaks with her or talk to her. He queried Davis as to why she was upset and according to Liverman she stated she was upset for this reason. Liver- man testified that subsequently, 3 days later, Davis came to his office and said she was going to quit as she was getting telephone calls at home and it was causing her personal problems. Liverman denied opening his conversation with Lewis by querying her about what she thought about the Union or how she felt about it. Liverman testified that the Respondent's practice when an employee had no work for his machine was to use that employee on another machine only if work was available. Liverman denied telling Lewis that if the Union came in employees having no work at their machines would be sent home, stated that the Respondent's practice had been to send employees home when they ran out of work even before the Union started organizing. Additionally, Liverman denied ever asking Da- vis if employee McQuaig was involved in the budding union activity at the plant. Based on my observation of the demeanor of witnesses Davis, Lewis, and Liverman as they testified, and bearing in mind the inherent probability of the factual character of the alleged statement attributed to Liverman concerning the sending home of employees who had no work at their machines, I credit the versions of Davis and Lewis and do not credit the versions of the conversations advanced by Liverman. Liverman did not impress me as straightfor- ward, while I was impressed with the sincerity of Davis and Lewis. In view of Liverman's uncontradicted testimony as to the practice of the Respondent in not sending home employees who had no work at their machines when work was not available on another machine, I find that he told Lewis that if the Union came in employees who had no work at their machines would be sent home. Accordingly, I find that Liverman unlawfully interrogated Davis and Lewis as to their union activities and threatened employees as alleged in the complaint, in violation of Section 8(a)(1) of the Act. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Alleged unlawful activity by Doc Pearson The complaint alleges that the Respondent, by President and Plant Manager Doc Pearson , on or about December 20, 1973, in and about the vicinity of the plant, promised its employees greater economic benefits if the Union were rejected as the exclusive collective-bargaining representa- tive of the employees. It is clear from the record and I find that on October 11, 1973, Doc Pearson, president of the Respondent , called a supervisors' meeting at which, after some discussion of production and quality, he informed the supervisors that a union campaign was underway at the plant and told them that he did not think a union was needed . At this meeting, Doc Pearson told the supervisors to start issuing more writ- ten reprimands for bad quality, as quality was low, and he had not noticed reprimands for poor quality. Subsequently, a week or so later at another supervisors' meeting, Pearson gave the supervisors a copy of a list of those individuals who had previously signed the list of union organizers. Pearson advised the supervisors that he wanted them to know whom the organizers were so that the supervisors could avoid them and avoid committing unfair labor practices by not discussing union activities with them. The record contains evidence in the form of the minutes of the meeting of the newly formed "Employee Grievance Committee" held on Wednesday, November 21, 1973, at which Doc Pearson expressed the hope that the Committee could bring about better communications between the em- ployees and management . It is also clear that at this meet- ing complaints were aired to Pearson . Pearson is noted as having said that henceforth when a machine was down for change of style, the downtime would not be charged to the employee knitter. He also promised to look into the yam room situation which was also the subject of complaint. The foregoing when viewed against the Respondent's ac- tions in the aiding and assisting of the formulation and operation of an employee committee at a time when the union campaign was underway as more specifically advert- ed to hereinafter, clearly establishes, and I find, that Pear- son promised employees greater economic benefits if they chose and utilized the employee committee as their repre- sentative, rejecting the Union as their exclusive bargaining representative, and that Pearson thereby violated Section 8(a)(1) of the Act as alleged in the complaint. 5. The alleged unlawful activity of Pearce, Sims, Keys, and Junkins The complaint alleges additionally that the Respondent, by John Pearce on November 6, 1973, and by Janie Sims on January 21, 1974, threatened its employees that the plant would close if the Union were selected as the collec- tive-bargaining representative of the employees; and that the Respondent, by Janie Sims, on or about January 21, 1974, threatened its employees that their wages would be reduced if the Union were selected as the collective-bar- gaining representative of the employees ; and that the Re- spondent, by Joe Junkins, on or about January 22, 1974, threatened its employees that their production require- ments would be raised if the Union were selected as the collective-bargaining representative of the employees. The complaint alleges additionally that the Respondent interrogated its employees concerning their union member- ship, activities, and desires and the union membership, ac- tivities, and desires of other employees by Foreman John Keys on January 15, 1974, and by Shift Supervisor John Pearce on November 6 and 7, 1973. Judy Jones testified that she had a discussion with Su- pervisor John Pearce around November 1 in Pearce 's office where she had been summoned by Pearce, and Jones was wearing her union button . Pearce asked Jones how he had mistreated her, and he said that "I had when I put on the union badge . . . ." According to Jones, Pearce discussed the fact that she and her husband had just bought a new car and trailer and asked what they would do if the Union came in and the Company could not meet their require- ments and the plant shut down. Pearce also stated that if the Union came in "we would be giving up all our rights as individuals to come to talk with him about all of our prob- lems." Pearce testified that he never told employees that the plant would close if the Union were selected as collective- bargaining agent of the employees. He recalled discussing the fact with Jones that she and her husband had bought a new trailer and car, but denied Jones' version of the discus- sion while admitting that he asked Jones "could they af- ford to make the payments if we were on strike." Based on my observation of the witnesses as they testi- fied, I credit the testimony of Jones, and I am convinced and I find that Pearce coercively interrogated and threat- ened employees in violation of Section 8(a)(1) of the Act as alleged in the complaint. Patricia La Clair testified to a conversation which she had with Joe Junkins, personnel manager, as he came by her machine the night before the union election. According to La Clair, Junkins opened the conversation by stating, "I'll talk to you if you want to, but if you don't want to talk to me, I won't." La Clair asked Junkins whether, if the Union came in, Pearson would raise production and lower the points on bad knitting so it would be harder to do the job. According to La Clair, Junkins said that of course Pearson would and that if he did the Union would see that those who did not make production would go out the door. "And he said that if the Union came in that the Christmas dinner and Thanksgiving dinner and benefits such as this would be cut out." Junkins testified that he did converse with La Clair con- cerning the Union, that he wanted to be sure that she was not deceived or in the category of not realizing what she had benefit-wise, and that he did that with a number of the employees at that time. He did not recall telling La Clair that if she and the employees could come to him with their problems they would not need a union. He stated that he did discuss production but in terms of Olympia Mills, a neighboring plant which is unionized , telling La Clair that production requirements at Olympia Mills had to be met or you leave. Junkins denied stating that certain benefits would not continue if the Union came in, and denied stating that THE CONTRACT KNITTER, INC. production requirements would be raised if the Union came in. Based on my observation of the demeanor of the wit- nesses, as they testified, I credit the testimony of Junkins who impressed me with his straightforward testimony, sin- cerity, and prompt and uncontrived responses on cross- examination. I find that Junkins did not, as charged in the complaint, unlawfully threaten that production require- ments would be raised if the Union were selected by the employees. There was testimony of record by Violeana Lewis con- cerning a conversation which she had with Janie Sims the night before the election which Lewis opened by querying Sims, in which Sims told her in response to her query that Pearson could move the Company to North Carolina or South Carolina and nothing could be said, or he could drop the wages down to $1.65 and nothing could be said about that because it was his plant. There was also testimony of record by Audrey Dawson that she asked Sims to buy a ticket and Sims responded that if the Union came in she could not afford to buy it, that "we'll be out of a job, and Doc Pearson will move the plant to South Carolina or either North Carolina and move the wages down to $1.65 an hour and couldn't anyone make him raise it." Janie Sims testified that she talked to substantially all of the employees in her department trying to get them to vote against the Union and testified that she did state that the Union could not raise wages as high as some of the em- ployees anticipated, that if the Union came in wages could be raised or lowered, and that if conditions were right the plant could be moved and the Union could not prevent it. Sims stated she said substantially the same thing to Daw- son. Based on my observation of the demeanor of the wit- nesses as they testified, I credit the testimony of Sims who, although clearly a talkative individual, nevertheless, im- pressed me with her sincerity. On the other hand, I had the impression that Dawson and Lewis were somewhat con- trived in their testimony and Dawson's responses on cross- examination left me with some doubt as to her credibility. Accordingly, I find that Sims did not unlawfully threaten employees that the plant would close and wages would be reduced, as alleged in the complaint. 6. The alleged unlawful solicitation and distribution rule The complaint alleges additionally that the Respondent, on or about October 11, 1973, promulgated and announced to its employees a rule prohibiting their distribution of union literature on company property and their solicitation on behalf of the Union at all times during the workday. The record discloses that the Respondent posted the rule on or about October 11, 1973. The rule is as follows: Solicitation and/or distribution of literature by non employees on company property is prohibited. Solicitation by employees on company property dur- ing working time, which in any way interferes with work is prohibited. 567 Distribution of literature by employees on company property in non working areas during working time, which in any way interferes with work, is prohibited. Distribution of literature by employees on company property in work areas is prohibited. An employee is not to enter the plant or remain on the premises unless he is on duty or scheduled for work. The General Counsel urges that the timing of the pro- mulgation of this rule in conjunction with the other alleged unfair labor practices of the Employer herein warrants an inference that it was promulgated for the purpose of inter- fering with and restraining employees in their exercise of Section 7 rights ; that it is ambiguous and too broadly re- strictive and subject to interpretation that would restrict or infringe on employees' Section 7 rights. The Respondent contends that the rule is clearly intend- ed to prohibit those activities which interfere with the work of its employees, that it is directed toward the prevention of interference with production. In my view the rule as promulgated and posted is too broadly restrictive and ambiguous to meet the test of a valid rule as defined by the Board in Daylin Inc., Discount Division, d/b/a Millers Discount Department Stores, 198 NLRB 281 (1972), where the Board stated "A no-solicita- tion rule is presumptively ... valid if it is limited to prohib- iting solicitation during the time an employee is expected to be working and not during breaktime, lunchtime, or the like. . . . but where a no-solicitation rule goes beyond these limits . . . it is an unlawful infringement upon the employees' freedom to solicit their fellow employees for (or against) union representation." It is clear to me that the rule herein fails to disclose to employees that the interdiction does not cover solicitation during breaktime, lunchtime, or the like, but is easily sus- ceptible to the contrary interpretation, thereby infringing on the rights of the employees to whom the rule is ad- dressed. While it is recognized that the English language is somewhat imprecise, in my view the language of the rule herein under basic common law is to be construed strictly against preparing it, also bearing in mind that the rule could easily have been prepared so as to communicate the scope of the interdiction more clearly to the employees. Accordingly, I find that in the promulgation and posting of this rule to its employees the Respondent violated Section 8(a)(1) of the Act as alleged in the complaint. C. The Alleged Domination and Interference by the Company With the Employee Grievance Committee The complaint alleges essentially that the Respondent dominated and interfered with the formation and adminis- tration of a labor organization known as the Employee Grievance Committee, and contributed financial and other support to it by announcing to its employees , on or about November 6, 1973, by its Shift Supervisor Calvin Liver- man, its formation of the Employee Grievance Committee to deal with management concerning employee grievances; soliciting its employees, on or about November 6, 1973, in and about the plant premises, by its Shift Supervisor Cal- 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vin Liverman, to submit to it their nominations for their representatives in the Employee Grievance Committee; telling its employees, on or about November 13, 1973, in and about the plant premises, by its Shift Supervisor Cal- vin Liverman that it was conducting an election among its employees for the selection of their representatives in the Employee Grievance Committee ; recognizing the said Committee on or about November 16, 1973, and negotiat- ing with it concerning the wages , hours, terms and condi- tions of employment of its employees ; and paying employ- ees for time lost from work while attending meetings of the Employee Grievance Committee on or about November 21, 1973 ; all the foregoing allegedly in violation of Section 8(a)(1) and (2) of the Act. There was testimony by Tim Hall, a former knitter for the Respondent, who stated that he first became aware of union activity at the plant around October 1, 1973. Hall attended meetings on October 5 and 7, received and dis- tributed around 30 or 40 union cards. Hall began display- ing his union signs and pins on his clothes around October 11, and on that date participated in presenting a list of the organizing committee to Supervisor Junkins. Sometime subsequent to October 11, according to Hall, Gary Mackey drafted and carried a petition around the plant stating in effect that the signers desired to form an employee committee at the plant and did not recognize the International Ladies' Garment Workers' Union. Hall was asked by Mackey to sign the petition. The record also establishes that other employees solic- ited signatures for the petition, with Edna White being so- licited by Hall; Rosie Shepard and Jeannie Lollar solicited by Shannon Jenkins ; and Rosie Shepard also solicited by Douglas Montgomery. Virginia Turner testified that in early November 1973 Calvin Liverman announced over the public address sys- tem that the Company had thought about forming an em- ployee committee to hear grievances from the workers to Mr. Pearson, and the employees were asked to think about possible representatives to serve on such a committee. Additionally, according to Turner , Liverman came around to her station and asked who she would like to represent her, and Turner named Rosie Shepard and Billie Whitley. According to the testimony of Turner, Liverman came back to her line a few days later with a list of names and asked who Turner wanted to vote for, and Turner , noting that Shepard and Whitley were on the list indicated she wanted to vote for them . Later that day Liverman returned to Turner and notified her that she had won the nomina- tion as representative on the Employees Committee to rep- resent the employees on the third shift . When Turner asked what she was supposed to do, Liverman advised her that she would hear from Pearson or Junkins at a later date. Subsequently Liverman brought Turner a letter from Pearson informing her that a meeting had been arranged for November 21 at 3 p.m. in the conference room at Respondent's plant. Turner attended the meeting with rep- resentatives of the other shifts. The meeting was presided over by Pearson who solicited grievances and proceeded to deal with them. Gary Mackey was selected to head the committee and the employees were advised they would be paid to attend. Subsequent meetings were held in Decem- ber 1973 and January 1974. Based on my observation of the demeanor of the witness Turner, as she testified, I credit her testimony which was given in a straightforward and sincere manner and which was largely uncontradicted . While the Respondent urges that the mere acquiescence or approval by an employer of the formation of an employee committee is not unlawful, I find that the record clearly supports a finding, and I find under the circumstances herein , the Respondent was the moving party and dominated the formation and assisted in the administration of the Employee Grievance Committee herein as charged in the complaint, thereby violating Sec- tion 8(a)(2) and (1) of the Act. In this connection, I find that this Employee Grievance Committee consisting of rep- resentatives of each shift in each department, formed for the stated purpose of dealing with management concerning grievances constitutes a labor organization within the meaning of Section 2(5) of the Act. N.L.R.B. v. Cabot Car- bon Company and Cabot Shops, Inc., 360 U.S. 203 (1959). D. The Alleged Discriminatory Discharges 1. The discharge of Bates and McQuaig The record establishes that Norma Bates was hired by the Respondent in June 1969 and McQuaig in August 1970. Bates became a first-shift knitter and McQuaig a third-shift quality control employee. In January 1973 both Bates and McQuaig were promoted to the position of lead- girl. Norma Bates testified that when she was promoted to the job of leadgirl she was told by her supervisor, Joe Knotts, that the job would be permanent and that she would assist the supervisor , she could write reprimands, could recommend discharge for employees, and could cor- rect timecards. In this connection the parties stipulated that the leadgirls in the knitting department were supervi- sors. According to Bates, on September 24, 1973, three lead- girls, Norma Bates, Mary McQuaig, and Patsy Crawford, were called to the conference room by Supervisor Junkins and notified that because there were too many supervisors the Respondent was creating a new position , and they were advised that they would be "Kl girls," their duties would be to assure that "the K1's were not overknitted, to take care of the KI's and let the knitters know when the change- overs and so forth were ." According to Bates the change from leadgirl to K1 represented a demotion as her pay as a leadgirl was $2.95 per hour plus bonus, whereas the pay of a K1 girl only went up to $2.75 an hour without bonus. The parties stipulated that the job classification of "K1 girl" was not a supervisory position. The record discloses that under the Respondent's opera- tion prior to October 1, 1973, a foreman and leadgirl were assigned to each shift in a supervisory capacity. The lead- girls, however, spent a substantial portion of their time working with the K1's, knitting instructions . With the con- solidation at the new plant on October 1, 1973, the Re- THE CONTRACT KNITTER, INC. 569 spondent no longer required that much supervision and utilized the former leadgirls as KI girls without supervisory authority. The record also discloses that at the time Junkins dis- cussed this with the leadgirls Junkins asked Bates if she would go back to knitting. Bates told Junkins that she couldn't keep up the production and quality that Doc Pearson expected on eight machines . The record also con- tains testimony by Mrs . Crawford and Junkins indicating that none of the leadgirls wanted to accept jobs as knitters when queried by Junkins. According to Bates the day after the meeting on Septem- ber 24, the employees moved to the new mill, a phase in a changeover by the Respondent in which its operation was split into two plants, and then on October 1, 1973, consoli- dated into a new plant at Northport. Bates stated that on October 1 she initiated the union activity by calling the Rubber Workers Hall, and was ulti- mately, on October 5, 1973, put in touch with Union Rep- resentative Inez Kelley at the Central Labor Union Hall. According to Bates nine employees then met with Kelley for the purpose of organizing a union at the Respondent's plant. Meetings were subsequently held on October 7 and 17, which she attended. In the meantime, she "was out by the road, including the 11:00 at night shift, getting cards signed and talking to the people and showing them that they needed a union." Bates stated that with Mary Mc- Quaig she got about 150 cards signed and delivered to Kel- ley. Bates testified further that on October 11, 1973, she re- ported to work before 7 a.m., called her supervisor, Joe Knotts, and Calvin Liverman and advised them that she was working for the union and would "do her damdest to get the union in there." On October 18, 1973, according to Bates , she was sum- moned to Doc Pearson's office where she saw Mary Mc- Quaig and other Kl girls. Pearson then advised the girls that he was going to do away with K 1 girls and "put us back into supervision ." According to Bates, Pearson stated that he needed more supervisors based on the increased number of machines, need for better quality, and larger size of the plant, and that since the K1 girls had had super- visory experience as former leadgirls he felt they could do the job. Bates told him she would not accept being a super- visor again, that Pearson had placed her in supervision be- fore and she had been told it would be permanent and it had not been permanent. Pearson then told Bates that this time he would put it in writing . Bates told him she would not accept it, she didn't believe a word he told her. The record discloses that Pearson then asked McQuaig if she would think about it. McQuaig queried Pearson as to whether any positions were available as knitter or in qual- ity control with Pearson stating that there were no open- ings at that time. McQuaig then accepted . Bates also asked to return to knitting and she was told there were no open- ings at that time . Pearson gave Bates until 3 p.m. to give him a definite answer. Booth and Crawford, the other Kl girls, advised Pearson they would accept. Bates testified further that before 3 p.m. she returned to Pearson's office and told him she would not accept the position in supervision but would go back to knitting. Pear- son said he had no place for her in knitting but again urged her to take the supervisory job. Bates said she told Pearson she would not, "and I guess that leaves one thing." Pearson told her to go next door and "get her paperwork." Bates went to Junkins' office for her exit interview where in re- sponse to Junkins query, according to Junkins, she stated that she just could not do the job of assistant supervisor. Similarly, in her testimony, McQuaig stated that when she telephoned Pearson to tell him she would not accept the job, "I told him that I just felt like I couldn't -handle the job, and I just couldn't take it. And he said, `are you sure' and I told him yes, I was sure that I could not go back into supervision." It is well settled that management may discharge em- ployees for good cause, bad, or none at all providing that it is not motivated by a desire to discriminate against the employees because of their Union or other concerted activ- ities protected by the Act. Under circumstances where the discharge is not discriminatorily motivated, in whole or in part, the Respondent has no burden to justify such dis- charge. N.L.R.B. v. Ace Comb Company, 342 F.2d 841 (C. A. 8, 1965). A finding of violation of Section 8(a)(3) of the Act normally turns on the employer's motivation. Ameri- can Shipbuilding Company v. N.L.R.B., 380 U.S. 300 (1965). In identifying the true motivation the question is not whether there exists a valid basis for discharge, but wheth- er the reason advanced by the Respondent was the real one. J. P. Stevens and Company v. N.L.R.B., 380 F.2d 292 (C.A. 2, 1967). The fact, however, that the reason advanced by the Respondent fails to withstand the test of scrutiny is a factor to be considered in the search for the true motiva- tion. In analyzing the alleged discharge of Bates and Mc- Quaig by the Respondent we are faced with the difficult problem of determining the Respondent's motivation. The Respondent contends essentially that Bates and McQuaig left their employment by refusing to accept the job assign- ment to assistant supervisor at a time when no openings were available for their assignment to the classification of knitter. The General Counsel contends essentially that Bates and McQuaig were effectively discharged by the Re- spondent through a manipulation of personnel and organi- zation actions designed to counter the budding union ac- tivity at the plant. There is no question as to the Respondent's knowledge of the union activity at the plant and the participation of Bates and McQuaig therein. However, neither is there any question as to the bona fides of the Respondent's action in reorganizing and consolidating its operations, a course of action which the record clearly discloses predated the initi- ation of union activity. The critical question as I view it relates to the motivation of the Respondent on October 18, 1973, when it required Bates and McQuaig to accept a job change requiring their resumption of supervisory functions, while denying their countering request for assignment as knitters , a nonsuper- visory position. Was the Respondent's action at this time motivated in whole or in part by considerations of the union activity of Bates and McQuaig and designed to dis- courage or subvert this activity? Based on my careful con- sideration of the record, I am convinced it was. As I view it, the Respondent embarked on a normal business action in reorganizing and consolidating its opera- 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions. This action predated the union activity herein. In the course of that action the Respondent exercised its business judgment in demoting some leadgirls who were supervisory personnel to K 1 girls who were nonsupervisory . The reason disclosed on the record bears scrutiny and is for the pur- pose of correcting an overabundance of supervision, a fact uncontradicted on this record. The Respondent in effect contends that subsequently when the consolidation was effected it became apparent to the Respondent that, because of the new factors of the increase in equipment and space in the consolidated opera- tion, additional supervision would be required for the ef- fective operation of the plant, that the Respondent request- ed Bates and McQuaig to resume their former supervisory functions as assistant supervisors , and that they voluntarily elected not to do so . I find this rationale weak and unper- suasive. An additional element for consideration is whether or not the Respondent in failing to provide Bates and Mc- Quaig with alternative employment as knitters , unlawfully discriminated against them in order to discourage union activity. The General Counsel urges that the Respondent's failure or refusal to place Bates and McQuaig into the knit- ter job classification at a time when a job was open due to the promotion of a knitter to the supervision job refused by Bates, gives rise to an inference that the Respondent's ac- tions were unlawfully motivated . I find this persuasive, particularly as the Respondent was increasing production, Bates and McQuaig were undisputedly good knitters, and the record discloses the employment of knitters thereafter. I find paradoxical that the Respondent made a basic business judgment that its operations were oversupervised and then somewhat precipitously, days later, came to a decision to increase supervision . What I find most signifi- cant is that nowhere herein is it suggested by the Respon- dent that new factors were introduced after its initial deci- sion on which its decision to increase supervisors might be rationalized. At the time of both actions , the size of the plant, its equipment, and the nature of the operation were well within the knowledge of the Respondent. Indeed the Respondent admits that it "made a mistake" in the deci- sion to reduce supervision. However, based on the record as a whole and the timing of the actions herein , I am con- vinced that the Respondent manipulated their employment so as to remove Bates and McQuaig from their status as nonsupervisory employees and that Respondent thereby violated Section 8(a)(3) of the Act. The Respondent's actions vis-a-vis Bates and McQuaig in reassigning them to supervisory functions and refusing to assign them to knitting were so clearly incredible as to compel a finding that they were executed as a sham and pretense for the purpose of removing said employees as activists from the upcoming union campaign and election. Coca Cola Bottling Company-Indianapolis, Indiana-In- corporate4 142 NLRB 1030 (1963). Accordingly, I find that Bates and McQuaig were discharged by the Respondent in violation of Section 8(aX3) and (1) of the Act as alleged in the complaint. I find further that the actions of the Respondent in the discharge of Bates and McQuaig were necessitated neither by the employees conduct nor by business exigencies as suggested by the Respondent. 2. The discharge of Hall and Townsend The record establishes that in October 1973 Doc Pearson called a meeting of all supervisors at which time he distrib- uted to them a copy of the list of the union organizers committee, and told them in essence to avoid the listed organizers. Pearson discussed production and the decline in the quality of the fabric being run by the Respondent, wanting to know why there were so many charge backs. Pearson told the supervisors to start issuing more written reprimands for bad quality. The record discloses that the company practice had been to discharge employees receiv- ing too many reprimands for production and quality. There was considerable testimony of record over what con- stituted too many reprimands or the relationship between the number of reprimands and discharge. Baggett testified that three reprimands would result in discharge , that points were assigned for bad production and quality and an em- ployee who amassed more than 12 points would be given a reprimand, and that normally three reprimands would re- sult in discharge . However, Baggett did state that she be- lieved that on some occasions discharge had not followed three reprimands. The record discloses that Timothy Hall an employee of the Respondent in the quality control department was hired on May 31 , 1972, and discharged on November 6, 1973. Hall moved from knitter to quality control around January 1973 , at the time the Respondent split its opera- tions into two plants. The record also discloses that Charles Townsend was employed on October 5 , 1972, as a knitter then went to quality control 3 months later. In his testimony Townsend stated that in April 1973 , when he returned from a 4-day leave, he was advised by Pearce that his work was unsatis- factory and was given the option of going back to knitter or demoted loader. According to Townsend, Pearce told him that if he showed good work as a loader he would get another chance at quality control. After 2 weeks as a load- er Townsend was restored to quality control around July 1, 1973, at which time he was advised by Pearce that he ex- pected better quality fabric from Townsend's shift than he had produced previously . Townsend testified that in his job function he had responsibility which Townsend contended was shared by the knitters . According to Townsend, if he felt a fabric was not being made properly , he had authority if the problem was mechanical to call a mechanic and bring it to his attention. He also had authority to shut off the machines if the fabric was not being run properly. If he thought he found a mistake and the knitter disagreed with him he could override the knitter and order the machine cut off. When Townsend was demoted in April 1973, Hall who was also informed by Pearce that his work was unsatisfac- tory was given an opportunity by Pearce to retain his posi- tion in quality control until he voluntarily left the Respondent's employ in July 1973. Several weeks later, Hall asked to return to work for the Respondent and was THE CONTRACT KNITTER, INC. rehired by Pearce . Pearce testified that this was based on Hall's prior experience and the fact that his job had not been filled. Hall was rehired at the same rate of pay he was receiving when he left. While Hall received no written rep- rimands during his employment prior to his discharge, Pearce stated that he had consulted Hall on his job perfor- mance. As for Townsend, he had not been given a written or oral reprimand until October 16, 1973, when he was reprimanded for his work performed on October 12 and 13 for allowing bad rolls of fabric to be run. On October 19, 1973, Townsend was again orally reprimanded over his work and after again being reprimanded on October 20 for allowing bad rolls of bad quality to be run, he was dis- charged. Hall was discharged on November 6, 1973, after receiving his first written reprimand on October 16, 1973, for allowing bad quality to be run on October 12 and 13, 1973. On October 19, 1973, Hall received an oral repri- mand for allowing bad work to run on his shift, and a final reprimand on the date he was discharged for allowing three rolls of charge-back fabric to be run the day before. On Monday, October 8, 1973, Pearce called a meeting of the quality control employees . Hall and Townsend were among those attending this meeting . Prior to this meeting, Pearce had received a memorandum from Doc Pearson stating that quality was extremely poor and directing that action be taken to correct the situation. In his testimony Pearce stated that he decided to enforce stricter rules for the employees under his direction to overcome the quality problem. At the meeting of October 8, 1973, Pearce discussed the matter of bad quality, that fabrics were being rejected by the Respondent's customers. Pearce announced that hence- forth quality controllers would be allowed two reprimands in a 30-day period with termination following a second reprimand. According to Pearce he advised those attending the meeting that reprimands could be given over broken needles, over 30 yards of bad knitting, and over any num- ber of defects which Pearce considered bad enough and that they should have detected on the machine and had corrected. There was considerable testimony of record concerning the past practice of the Respondent in the issuance of rep- rimands and the nature of the defects and deficiencies for which reprimands were issued . A clear-cut practice is not established on the record . However, as urged by the Gener- al Counsel, the record does establish and I find that prior to the commencement of union activity at the Respondent's plant and to the presentation of the list of union organizers to the Respondent there is no evidence that quality control inspectors had been reprimanded for defects such as holes, press-offs, bad needles, and drop stitches caused by mechanical defects. The record also es- tablishes that on October 8 Pearce clearly changed the Respondent's apprach to the issuance of reprimands to quality controllers by setting stricter standards based on a general and subjective approach. The record also estab- lishes that thereafter Hall and Townsend were repri- manded for defects and discharged. The General Counsel contends that the Respondent in- stituted the stricter policy of reprimands, that is, charging quality controllers for defects in the material over which 571 they have little or no control as a pretext upon which to discharge Hall and Townsend. The record herein convinc- es me that the policy was instituted for this purpose. While it is clear from the record that the Respondent was en- gaged in a bona fide reorganization and in the consolida- tion of its operations into one plant, the record establishes, and I find most significant, that, although Hall and Town- send had had quality and production problems brought to their attention by management, Hall had not been repri- manded and received his first reprimand almost immedi- ately following the institution of the new policy on October 8, 1973. While it is true that Hall and Townsend may have been marginal quality controllers, the Respondent was sat- isfied to continue them in this classification until the ad- vent of the union campaign and the institution of stricter requirements following the advent of the Union, at which time almost precipitously in the space of several days they were singled out and given repeated reprimands supplying a rapid basis for their discharge. Accordingly, I find the discharges of Hall and Townsend violative of Section 8(a)(3) and (1) of the Act. 3. The discharge of Bobbie Johnson and Linda Newman The record discloses that Johnson and Newman were employed by the Respondent in 1969 and functioned as inspectors in the quality control department. Both were discharged on November 26, 1973. Both Johnson and Newman had received one reprimand during the course of their employment, Johnson about 3 years prior to her discharge when the entire department was reprimanded, and Newman in the early spring of 1973 for her "bad attitude." Johnson and Newman were satis- factory employees in the plant in terms of length of service. During the union campaign both Johnson and Newman began wearing union buttons at work in October 1973. On November 26, 1973, Johnson and Newman reported for work just before the beginning of the second shift. Accord- ing to Newman after they punched in they normally went around and spoke to the members. At this time Grace Beasley asked Newman how her father was getting along, as he had been in the hospital. Newman stated she talked with Beasley no more than 5 minutes, that this was a nor- mal occurrence that took place every day of the week ex- cept when Beasley was off. Newman stated that Supervisor Pearce was aware of this and had not said anything about it prior to this time. Newman recalled that about a year ago she had queried Pearce as to whether it would bother him and Pearce had told her that it did not as long as she did her job. During Newman's chat with Beasley on November 26, Doc Pearson walked by as they ceased talking and left. About 5 p.m. that same day Pearce called Newman into his office and asked whether she knew she was not supposed to be talking to girls in other departments. "And I said well, I, when did this start. And he said its been started. And I said I didn't know it. I said I talk to that woman every day of the week, and you've never said anything until now. Why now.... " Pearce then advised Newman he had to write her up for it. She asked what would happen if she didn 't sign. Pearce told her she would 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be fired. Newman told him she was not going to sign, as it would be her third reprimand which would result in her discharge. In his testimony Pearce stated that he had in the past observed Newman stopping to chat with Beasley. He stat- ed, "I'm sure I had said something in the past, about they should not be in that department." Pearce testified that it was Pearson who brought this matter to his attention that day as he wanted to know how Pearce "could have people from other departments in this mending department when I had such a backlog of fabric to be shipped out." In his testimony Pearce stated that when he called New- man into his office and told her she had been talking to Beasley when she shouldn't have been, Newman reacted in "tone and attitude that struck me wrong." Pearce stated that it was this same attitude that he had reprimanded her for in the past; very rude, very insubordinate. Q. Did she point out to you that you had seen her talk to her and had never said anything to her about it? A. Yes. She brought that up. But it goes back to the fact that at that particular time we were so far behind with our work that we didn't have the time to stand around and talk. Other times when we have relaxed and we have the time I have no objections. In his testimony Pearce stated that Newman in effect had dared him to write her up. Pearce did state that it was common knowledge that three reprimands would result in discharge, but that in this case he had noted on Newman's reprimand which she would not sign that "the next time anything like this occurs you will be discharged." However, Pearce did state that he did nothing to counter Newman's general understanding that by signing the third reprimand she was amenable to discharge. Based on my analysis of the record concerning the dis- charge of Newman, I am convinced and I find that, under the circumstances herein, i.e., the discharge of a relatively longterm and satisfactory employee for an action which I find to have been condoned by the Respondent in its past practice and the abrupt application of a recently instituted stringent rule to a known union adherent without warning of a change in the rule or its application, coupled with the weak and purely subjective basis advanced by Pearce for the discharges, i.e., Newman's attitude, in the discharge of Newman, the Respondent was indeed motivated by its union animus to discriminate against Newman for the pur- pose of discouraging union activity, and that the Respon- dent thereby violated Section 8(a)(3) and (1) of the Act as alleged in the complaint. As for the discharge of Bobbie Johnson , as was the case with Newman, Pearce discussed the Union with Johnson several weeks prior to her discharge, but nevertheless John- son continued to wear her union button in the plant. Ac- cording to Pearce when he summoned Johnson to his office the date of her discharge, the first thing she said was that if Pearce was going to fire her go ahead and get it over with. Pearce did not know whether she had talked to Newman before she came in or not. Pearce admitted that Johnson was a good inspector. Pearce testified that he tried to reason with Johnson in his office but she insisted he was picking on her because of her union activities. Pearce told her he was just enforcing the rule in order to get her to do a job. As with Newman, Pearce finally discharged her when she refused to read and sign a reprimand. I am convinced and I find for the same reasons explicat- ed hereinabove with respect to Newman that the Respon- dent discharged Johnson discriminatorily because of her union activity and in order to discourage union activity, and that thereby the Respondent violated Section 8(a)(3) and (1) of the Act as alleged in the complaint. 4. The discharge of Billy Roberts Roberts was employed as a knitter by the Respondent on June 3, 1973, working first under the supervision of Billy Lawrence and later under Calvin Liverman. She was terminated on January 17, 1974, a week before the election. The record establishes and I find that Roberts' union activity began in October 1973, when she signed a card and began wearing union insignia which she did until Decem- ber 1973. The parties herein stipulated that the Respon- dent, during calendar year 1969 and continuing thereafter, both issued reprimands and terminated employees for ab- sence without calling in. There was testimony by Liverman and Herron that when an employee was absent for 3 days without calling the supervisor that employee would auto- matically be discharged, and Liverman testified that this policy had been consistently applied during his employ- ment with the Respondent. However, while there was evi- dence in specific instances of reprimands issued for failure to notify the Respondent of absences, there was no direct evidence of termination for failure to do so relative to 3 days of absence. In my view a company policy of automat- ic discharge has not been established on the record. How- ever, the Roberts discharge must be reviewed from a more significant perspective. Roberts went to the hospital emergency room around 10 p.m. on Friday, January 11, 1974, to have her ear infection and sore throat treated. She did not report as scheduled for work at 11 p.m. that night, having been treated by a doctor who prescribed medication and advised her to stay in bed for a few days. According to Roberts while she was at the hospital she asked her friend Barbara Tipper to call Supervisor Liver- man and report her as sick and unable to work. The record discloses that Roberts' shift was not sched- uled for work on January 12 and 13, and on January 14 Roberts continued to remain in bed at home. There was no telephone at Roberts' home. According to Roberts, on Jan- uary 14, 1974, she again asked Tipper to call Liverman to tell him she would return to work on Wednesday or Thurs- day with her doctor's certificate. In her testimony, Barbara Tipper stated that Roberts had asked her to call in for her when they were at the hospital on Friday night, January 11, 1974, but that by the time they were through at the hospital and returned home, it was so late she did not call in. According to Tipper on Monday, January 14, Roberts was still confined to bed and again asked her to call in, so Tipper went to the Zippy Mary and called in. She reached Liverman on the phone and notified him that Roberts was ill and would return to THE CONTRACT KNITTER, INC. work on Wednesday or Thursday. According to Tipper, Liverman then said , "Okay." The record establishes and I find that Roberts was in- deed ill, was confined to bed by her doctor, and requested Tipper to call in for her on two occasions. I credit the testimony of Tipper who testified directly without equivo- cation and with sincerity that she called and spoke with Liverman on the telephone on January 14, 1974. I was im- pressed with Tipper's truthfulness in stating that she had not called in initially for the reason of the lateness of the hour and confusion attendant on spending time in an emergency ward with a sick friend. On the other hand, concerning Liverman, it is clear that in denying that Tipper had called him on the telephone he was relying somewhat on his memory and certain records which distinguish be- tween excused and unexcused absences and which accord- ing to Liverman was a basis for his knowledge that he had not received any telephone calls in regard to Roberts. However, there is no evidence indicating that Liverman made an entry contemporaneously with the receipt of such calls. On the contrary, he testified that he did not. Addi- tionally, the record discloses: Q. And you did not receive a call from anyone with respect to Ms. Roberts on Monday, February the 14th? A. No sir. Not that I can recall. Q. You cannot recall having received one? A. Not back then, no sir. I don't even remember. I believe it was January. I believe. From all the foregoing, I am convinced and I find that Tipper did notify Liverman of Roberts' absence, and that the Respondent through Liverman used her absence due to illness as a pretext upon which to discharge Roberts in violation of Section 8(a)(3) and (1) of the Act as alleged in the complaint. 5. The discharge of Judy Jones Jones was employed by the Respondent in October 1972, as a knitter, later went to quality control as an inspector and was discharged by the Respondent on November 20, 1973. The record discloses that Jones wore union buttons during the organizing drive. John Pearce testified that he discharged Jones on No- vember 20, 1973, as an undesirable employee because she had numerous reprimands. The record discloses that Jones was reprimanded for ab- senteeism in February 1973 for failing to follow instruc- tions in May 1973, and received a written reprimand for negligence in October 1973 for failing to detect a broken needle line on certain material . Evidence also establishes that she was reprimanded for failure to show interest or enthusiasm in March 1973 at which time the Respondent noted that "Judy knows that she will not receive a pay raise for this six month period and realizes that she must im- prove if she wishes to keep her job. If no improvement is shown immediately, I will terminate her. J.R. Pearce." Pearce testified that prior to discharging Jones he went through her file. He stated that the afternoon of the dis- charge he had received complaints from two different su- 573 pervisors for different reasons. On reviewing her file he saw the earlier reprimands and decided he "could not tolerate this kind of an employee." Pearce also adverted to an earlier incident in which Jones had been involved with another inspector, Linda Hubbard. Pearce described the two reprimands issued on the day of Jones' discharge as one issued by Joe Knott for being on the knitting floor talking to another employee, the other from Jerry Bell for failing to follow instructions, that is to inspect a quota of 60 rolls the day before. Pearce stated that he discussed these with Jones and then discharged her. Pearce testified that he had observed Jones wearing her union badge in the plant and, a week prior to her dis- charge, had discussed the Union with her in his office when she told him that she and her husband had bought a new car and trailer. He asked her what they would do if they both were on strike, how would they manage the pay- ments. Pearce testified that he had set the 60-roll quota a week before Jones' discharge in order to get caught up in late shipments to customers. Based on my analysis of the record herein , I am con- vinced that the Respondent discharged Jones discriminato- rily and in order to discourage union activity. What is most significant to me is that as found hereinabove Pearce coer- cively interrogated Jones about a week before her dis- charge, then in rapid-fire succession she was given a repri- mand for talking on the floor followed by the coup de grace on the same day in the form of a reprimand for failing to meet a newly and hastily instituted quota of 60 rolls. While the Respondent urges that the two final repri- mands were the proverbial straw that broke the camel's back, I am convinced and I find from this record as a whole that, absent Jones' union activity and failure to re- spond to Pearce's coercive interrogation, Jones would not have been discharged, that Jones was singled out as the recipient of repeated reprimands and discharged because of her union activity in violation of the Act as alleged in the complaint. 6. The discharge of Debra Higginbotham Debra Higginbotham was employed by the Respondent as a knitter in January 1973. The record discloses that she wore union badges and signed the organizing committee list which was presented to the Respondent. Higginbotham had already received two written repri- mands, the first in August 1973 for negligence, the second for tardiness in September 1973. Following the advent of union activity, Higginbotham received a third written rep- rimand for "six yards of bad needle" and a fourth repri- mand on November 24 for "low quality work." She was discharged that date. In addition to the written reprimands there was testimo- ny by Supervisor Joe Knott that he had discussed Higginbotham's work with her on various occasions with- out reprimanding her. He also stated that on November 12, 1973, prior to her discharge she had produced poor quality fabric and he wanted to terminate her at that time, but 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of her union organizing activity he discussed the matter with Doc Pearson and it was decided to give her one more chance. He was then instructed to reprimand her orally, which he did with the admonishment that if she did not improve she would be terminated. The record discloses that the Respondent had reprimanded and discharged em- ployees for "poor quality" since 1969. The Respondent urges that Higginbotham was a margin- al employee, identifiable as such prior to the advent of union activity and that it discharged her for poor quality work which continued after the advent of the union cam- paign. The Respondent urges that Higginbotham's support of a labor organization is not a shield behind which an unproductive employee may take shelter. While this is a correct statement of the law it does not answer the critical question of whether Higginbotham was discharged for poor quality work or, as urged by the General Counsel, because of her union activity. Since the Respondent's motivation is in question, it is necessary to analyze the events leading up to the discharge. First it is clear that Higginbotham had indeed been issued reprimands prior to the advent of the union activity. Sec- ondly, it is clear from this record, as more specifically ad- verted to hereinabove, that with the advent of the union activity herein, Doc Pearson called a meeting of the super- visors at which he told them to issue more reprimands for bad knitting. The record also discloses that if an individual received three reprimands in a relatively short period of time for the same deficiency they would normally be termi- nated. In his testimony on the discharge of Higginbotham, Joe Knott stated that he had 30 knitters on the first shift, that he issued reprimands to all the knitters from time to time, that he decided whether to issue reprimands to those who were on the bad knitting report, or to refrain from so doing, and that in making that decision the Respondent had a policy called the point of 20 points for deficiencies for which that person would be given a reprimand. If there were less than 20 points involved, the individual would not be given a reprimand. Focusing on the reprimands issued to Higginbotham in October and November 1973, which led to hbr discharge, the record discloses that Higginbotham had run 6.6 and 6.2 yards of broken needle and Knott issued an oral repri- mand, and on November 24, 1973, Knott reprimanded her for 32.4 yards of "cone in the wrong place" and 21 yards of "jump time" on separate machines. I am convinced on this record that the Respondent in response to the advent of union activity instituted a stricter policy of reprimands and indeed applied that policy to de- ficiencies which but for the new policy would not have resulted in reprimands prior to the advent of the new poli- cy. In my view, this taints the discharge of Higginbotham, as I am convinced that the reprimands to Higginbotham on the dates between the advent of the new policy and her discharge, however valid they may have been viewed against the stricter policy, were indeed issued for the pur- pose of discouraging union activity, and that therefore the discharge of Higginbotham was effected for that purpose, in violation of Section 8(a)(3) and (1) as charged in the complaint. 7. The discharge of Jeannie Lollar The record discloses that Lollar was employed by the Respondent as a knitter from February or March 1973 to November 27, 1973, when she was discharged by Calvin Liverman for "bad knitting." Prior to the advent of the union campaign and in the course of her employment Lollar had received about nine reprimands and a 5-day layoff for deficiencies such as bad rolls, failure to call in when absent, excessive absenteeism, bad knitting, bad fabric, and broken needle. The record also discloses that, with the advent of union activity early in October 1973, Lollar signed the list of the union organizing committee which was presented to the Respondent. She also wore the union insignia during her employment. Following the advent of union activity, Lollar received a reprimand on November 13, 1973, for bad knitting, then on November 15, 1973, for harassing employee Harper on the floor in order to pressure him into signing a union card. On November 27 Liverman informed Lollar that she had run a 6-yard broken needle and she was discharged. The events as established on the record surrounding the issuance of the three reprimands to Lollar which occurred after the advent of union activity and the issuance of the second reprimand which was for the alleged harassment of Harper by Lollar fail to withstand scrutiny. In his testimony Harper stated that, when Liverman came by, he told Liverman about the incident describing the person who had approached him as he did not know her name. He told Liverman that "the young lady had asked him to sign a union card." He pointed out the young lady to Liverman, then at Liverman's request he went to Liverman's office and signed a complaint. Harper testified that he did not tell Liverman that the young lady had ha- rassed him nor did he use that word, although he stated in his testimony that he had felt harassed as he objected to her asking him to sign a card on working time. It is clear then from the record that it was Liverman who labeled this incident as harassment. Additionally relative to this same incident, Liverman tes- tified that "I had one of my employees come to me and complain about Jeannie Lollar harassing her." Liverman then testified on this occasion he did not present the repri- mand to Lollar for her signature, but let her read it without requesting her signature on it. I find it significant that, in the series of reprimands is- sued to Lollar prior to her active employment in the union campaign, the Respondent did not feel compelled to dis- charge her. I am convinced and I find that through Liverman, fol- lowing the advent of the union campaign, the knowledge of the Respondent of the union organizers, and the change by the Respondent to a stricter policy in the issuing of repri- mands, the Respondent in a 2-week period issued three reprimands in quick succession to Lollar, then promptly THE CONTRACT KNITTER, INC. and discriminatorily discharged her because of her union activity. 8. The discharge of Carolyn Frierson The record discloses that Carolyn Frierson entered the employment of the Respondent as a knitter in January 1973 and was terminated on November 28, 1973. Around the early part of October, Frierson signed a union card and started to wear a union badge 2 weeks later. Before the advent of the union campaign herein Frierson had received reprimands, one in February for failing to call in when absent and one in August for bad knitting. Following the advent of the union campaign, Frierson received reprimands in the middle of October for a broken needle ; on November 13, 1973, for bad knitting; and on November 27 for two rolls jumptime-not watching her machine as she should. She was discharged by Liverman on November 28, 1973. There was considerable testimony of record by Frierson concerning her allegation that the reprimand which she re- ceived on November 27 was not valid because she was not there at the machine when the defective needle ran and she did try to avoid being written up and discharged for the deficiency by cutting off 7-1/2 yards of the defective fabric from the roll. I find the Frierson discharge, when viewed against the background of this case, to be part of the pattern which clearly emerges on this record which discloses the Respon- dent reacting to the advent of the Union with unfair labor practices violative of the Act as found more specifically hereinabove, with the imposition of stricter production goals and requirements, and with the repeated issuance of reprimands culminating in the discharge of union adher- ents. I am convinced and I find that the discharge of Frier- son was motivated by the Respondent's objective of rid- ding itself of union adherents in order to discourage the protected activity of its employees in violation of Section 8(a)(3) and (1) of the Act as alleged in the complaint. While the Respondent urges that the discharge of Frier- son was lawful citing Altman Camera Co. Inc., 207 NLRB 940 (1973), that case is readily distinguishable on the basis that the respondent therein had no knowledge of the union activity of the discharged employee, whereas in the case at hand the Respondent under the circumstances herein had such knowledge with respect to Frierson. 9. The discharge of Connie Pate Sullivan Connie Pate Sullivan was employed as a knitter by the Respondent about September 19, 1972, later promoted to quality control where she remained until her discharge on November 24, 1973. She had not been given a reprimand during her employment until the date of her discharge. Sullivan's union activity started with the advent of the union campaign when she signed a union card early in October and from time to time spoke with employees in the plant in favor of the union. The incident leading to Sullivan's discharge took place on November 24, 1973, when Sullivan went on lunchbreak 575 at 2:45 a.m. with knitters Eva Hawkins and Pandora Gard- ner. There was testimony of record by Liverman that there had been complaints relayed through mechanic Whitley to Liverman from knitters who felt that Hawkins had been staying too long on breaks. The record discloses that em- ployees were allowed 30 minutes for each break but it was not uncommon to take 35 to 40 minutes. Sullivan, Hawkins, and Garner normally went on lunch- breaks together between 2:30 and 3 a.m. On this night, according to Sullivan and Hawkins, they were delayed and left at 2:45 a.m. for the Waffle House. According to Haw- kins the timeclock said exactly 20 minutes after 3 when they returned. According to Hawkins when she returned Liverman queried her as to when she had left and returned. Later that night he called Hawkins to his office where Janie Sims was present. Liverman gave Hawkins a reprimand to sign which stated that she had stayed 50 to 55 minutes on her break. Hawkins denied this and refused to sign. A discus- sion ensued in which Liverman stated that "the man at the waffle house said that you got to the waffle house shortly after 2:30" and "your mechanic Billy Whitley said you left at 2:30." At Hawkins' request, according to Hawkins, Liverman summoned Whitley who denied that he knew what time the girls left, that he wasn't there at that time. At this point Liverman expressed his regret and said he would change the reprimand to 40 minutes. Hawkins refused to sign in- sisting it was 35 to 40 minutes. Finally, she signed the repri- mand. In her version, Sullivan testified that most people took 35 to 40 minutes for lunchbreak, that Liverman on the night in question told her that normally he wouldn't mind a break of 35 minutes, but because of the shortage of avail- able quality controllers at that time things were different. Sullivan stated that that night the girls left at 2:45 and returned at 3:20. She was also called into the office that night by Liverman who told her that Betty Champion, an assistant foreman had called him from the waffle house telling him that Sullivan had taken 45 to 50 minutes on her break. After some argument, Liverman told Sullivan that Hawkins had him change her reprimand to 40 minutes. Sullivan told him she would hot sign it unless it said 35 minutes which was the time she had taken. Sullivan ulti- mately told Liverman that he could call her foreman, Pearce, in the morning and if he told her to sign she would. Liverman then sent Sullivan home at 4 a.m. and told her to report at 7 a.m. When Sullivan reported that morning, Liverman advised her that Pearce had told him to terminate Sullivan for in- subordination. She was terminated. In his testimony Liverman stated that he discharged Sul- livan because she took too long on break. According to Liverman, he had asked Whitley to watch Hawkins and report to him what time she went on break, that about 20 minutes before 3 a.m. he was advised by Whitley that Hawkins, Sullivan, and Garner had left at 2:30 which was normal breaktime. Liverman stated that he timed the re- turn of the girls and it was at 3:20. According to Liverman when he queried Garner she said 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she had left between 2:30 and 20 minutes before 3 a.m. Eva Hawkins told him she left about 20 minutes before 3 a.m. He went back to the office and wrote up reprimands for Garner, Hawkins, and Sullivan . Garner refused to sign, saying she had not stayed 50 minutes . Finally, she signed it. Hawkins, according to Liverman, told him that she had ,left about 20 minutes before 3 a.m. When Whitley was then summoned to the office he agreed that it could have been 20 minutes before 3 a.m., so Liverman changed the time on the reprimands to 40 minutes. Liverman stated in this re- ard that he changed the time only on Gardner and Haw- Tins' reprimand, not changing Sullivan's, and changing Garner's even though she had already signed a reprimand for 50 minutes. According to Liverman when he then summoned Sulli- ,van to the office she "looked like she was a little upset when she got there." In response to Liverman's query, ac- cording to Liverman, Sullivan insisted she had only taken 30 minutes even though Garner and Hawkins signed repri- mands. Liverman testified that at this time he had changed Sullivan's reprimand to 40 minutes . According to Liver- man Sullivan said she would not sign the reprimand, that Pearce was her supervisor. Liverman told her he was the supervisor on that shift. Sullivan told him she would take the reprimand and tear it up. A discussion ensued with Sullivan insisting she had not remained on break 40 min- -utes, and Liverman stating that both Gardner and Haw- ikins had signed the 40-minute reprimand. Finally, accord- ing to Liverman, Sullivan became abusive, called him 'names and told him he was "running around on his wife." When she refused to sign the the reprimand he sent her home, ordering her to report in the morning. In the morning, according to Liverman, he again re- quested Sullivan to sign the reprimand . She did and called him a vile name . Liverman asked her to leave. Based on my analysis of the record as a whole, the union animus of the Respondent as displayed in its numerous acts of interference with the statutory rights of its employ- ees in violation of Section 8(a)(1) as found hereinabove, coupled with the application by the Respondent of stricter production and quality standards in quick response to the initiation of union activity , and taking into account with specific reference to the 'discharge of Sullivan that Liverman's activities are clearly indicative of a driving compulsion to issue a reprimand to Gardner , Hawkins, and Sullivan, even to the extent that he is exposed as manipu- lating the employees into signing reprimands regardless of their accuracy and in the face of an obviously irresponsible report by Whitley, all lead me to conclude that the repri- mand to Sullivan for a 40-minute break, which otherwise and normally would have gone unnoticed , was because of her membership in and activities on behalf of the Union, and as part of the Respondent's pattern clearly visible herein, of applying stricter rules to the employees , and issu- ing more reprimands for the purpose of discouraging union activity in the plant . Having set this unlawful force in mo- tion, the Respondent may not be heard to complain that Sullivan in the course of her termination used vile and abu- sive language, for human emotions are not calmed by the exacerbation attendant on the commission of unfair labor practices affecting one's livelihood. Accordingly, I find that, in the discriminatory discharge of Sullivan, the Respondent violated Section 8(a)(1) and (3) of the Act as alleged in the complaint. While the Respondent urges that Sullivan was lawfully discharged for calling Liverman vile names independent of her refusal to sign the reprimand, citing Passaic Crushed Stone Co., Inc., 206 NLRB 81 (1973), I find that case readi- ly distinguishable for there the epithets were forthcoming in the normal course of the supervisor's effort to correct a malfunctioning machine and did not involve an action which by its linkage to the overall unlawful activity of the Respondent was inevitably provocative. Additionally, in Passaic, supra the epithets were accompanied by a threat. Finally, and because an overview of this record discloses that many of the employees involved in the underlying dis- putes attendant on the union campaign were at best mar- ginal, I am constrained to note that , as urged by counsel for the General Counsel, those numerous instances of dis- criminatory discharge found herein were not viewed in a vacuum. For while many of the discharges , when isolated and viewed separately because of undeniable delinquencies on the part of the employees, presented close questions in determining the motivation for the discharge, all of them are part of a mosaic of events which , when viewed in its entirety, persuade me that they were "rather part of a de- liberate effort by the management to scotch the lawful measures of the employees before it progressed to fruition. If employees are discharged partly because of their participation in a campaign to establish a union and partly because of some neglect or delinquency there is nonetheless a violation of the Act." N. L. R B. v. Jamestown Sterling Corp., 211 F.2d 725 (C.A. 2, 1954). Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. By coercively interrogating employees regarding their union activities and the union sympathies and activities of- fellow employees ; soliciting or requesting employees to persuade fellow employees not to support the union; threatening plant closure, loss of economic benefits, and economic reprisals against employees should they select the Union to represent them ; creating the impression of surveillance of union activity; and promulgating an unlaw- ful no-solicitation-distribution rule the Respondent has in- terfered with, restrained, and coerced its employees in the exercise of their rights guaranteed under Section 7 of the Act, in violation of Section 8(a)(1) of the Act as alleged in the complaint. 2. By discriminating in regard to the hire and tenure of employment of employees by discharging Norma Bates, Mary McQuaig, Timothy Hall, Judy Jones, Debra Higgin- botham, Bobby Johnson, Linda Newman, Jeannie Lollar, Carolyn Frierson, Billy Roberts, Charles Townsend, and Connie Sullivan because of their union sympathies and ac- tivities, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices in viola- tion of Section 8(a)(3) and (1) of the Act. 3. By dominating and interfering with the formation THE CONTRACT KNITTER, INC. and administration of a labor organization and contribut- ing financial and other support to it the Respondent violat- ed Section 8(a)(2) and (1) as charged in the complaint. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act, my recommended Order will require that Respondent cease and desist therefrom and take cer- tain affirmative action necessary to effectuate the policies of the Act. While the counsel for the Union herein urges the special remedy of an order to bargain stating "in an exceptional case like this one in which the employer has committed outrageous and pervasive unfair labor practices directed against both individual employees and the unit en masse only an order to bargain with the union can restore the status quo ante. To hold a second election, as recom- mended by the Regional Director would be an exercise in futility for-a free election is impossible." The General Counsel requests the posting of the usual notices including the disestablishment and repudiation of the employee grievance committee and the normal remedy for unlawful discharges. In my view, taking into account the balancing effect of the recommendations of the Regional Director for Region 10 in his report on objections and challenged bal- lots, Case 10-RC-9842, May 24, 1974, that the election be set aside because of certain conduct of the Union , I shall order the application of the usual remedies leaving to the employees the exercise of their choice in a new election. To remedy the discriminatory discharges of Norma Bates, Mary McQuaig, Timothy Hall, Judy Jones, Debra Higginbotham, Bobby Johnson, Linda Newman, Jeannie Lollar, Carolyn Frierson, Billy Roberts, Charles Town- send, and Connie Sullivan, in violation of Section 8(a)(3) and (1) of the Act, Respondent will be required to offer each of these employees immediate and full reinstatement, without prejudice to their seniority and other rights and privileges, and make each whole for any loss of earnings they may have suffered by reason of their discharge, with 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 Plumbing & Heat- ing Co., 138 NLRB 716 (1962). To remedy the unlawful dominating and interference with the employee grievance committee by the Respondent I shall order that it be disestablished and repudiated. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recom- mended: 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 ORDER1 577 The Respondent, Contract Knitter, Inc., Northport, Ala- bama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees regarding their union activities and regarding the union sympathies or ac- tivities of fellow employees; soliciting or requesting em- ployees to persuade fellow employees not to support the union; threatening plant closure, loss of economic benefits and economic reprisals against employees should they se- lect the union to represent them; and creating the impres- sion of surveillance of union activity. (b) Discriminatorily discharging employees because of their union sympathies or activities. (c) Dominating and interfering with the formation and administration of the Employee Grievance Committee and contributing financial and other support to it. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed under Section 7 of the Act. (e) Promulgating and posting an unlawful no-solicita- tion-distribution rule. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Norma Bates, Mary McQuaig, Timothy Hall, Judy Jones, Debra Higginbotham, Bobby Johnson, Linda Newman, Jeannie Lollar, Carolyn Frierson, Billy Roberts, Charles Townsend, and Connie Sullivan, reinstatement to their former jobs or, if such jobs no longer exist, to a sub- stantially equivalent position, without prejudice to their se- niority and other rights and privileges, and make each whole in the manner set forth in the section of this Deci- sion entitled "The Remedy." (b) Withhold all recognition from, repudiate, and com- pletely disestablish the Employees Grievance Committee. (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 the records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its Northport, Alabama, plant copies of the attached notice marked "Appendix." 2 Copies of the notice on forms provided by the Regional Director for Region 10, after being duly signed by authorized representative of Re- spondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. 2 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonable steps shall be taken by Respondent to insure that (e) Notify the Regional Director for Region 10, in writ- the notices are not altered, defaced or covered by any other ing, within 20 days from the date of this Order, what steps material. Respondent has taken to comply herewith.