Richlands Textile, Inc.

RICHLANDS TEXTILE, INC. 615 Richlands Textile, Inc. and International Ladies' Gar- ment Workers' Union, AFL-CIO. Case 11-CA-5604 September 24, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On October 31, 1974, Administrative Law Judge Ramey Donovan issued the attached Decision in this proceeding. Thereafter, Respondent, the General Counsel, 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 Administrative Law Judge's Decision, the exceptions and briefs and has decided to affirm the rulings,' findings,2 and conclu- sions of the Administrative Law Judge and to adopt the Administrative Law Judge's recommended Order as modified herein. Juanita Williams was discriminatorily discharged on December 5, 1973. Shortly before the Board elec- tion conducted on January 17, 1974, Juanita Wil- liams, Gollie Williams, Carter, and Baysden were sit- ting in a parked car about a half a mile from the plant. Craft, an elderly employee of Respondent, walked by on his way from work. According to Craft's own testimony, as he passed the car he stopped to talk to Juanita Williams. During this brief conversation, Juanita Williams said to him she would burn his house down if he did not join the Union. The Administrative Law Judge denied reinstate- ment because of this remark, reasoning that while the conversation was in a jocular vein, and he doubted that Juanita Williams would have burned Craft's house and also doubted that Craft was convinced that she would, nevertheless, Craft had no way of being sure what someone who makes such a state- ment will do. Contrary to the Administrative Law Judge, we find that this offhand remark, when viewed in the context of the circumstances before us on this record, does not disqualify Juanita Williams from reinstatement. As in all cases where the right of reinstatement is challenged, the test is whether the misconduct is so flagrant as to render the discriminatee (or the striker) unfit for further service. See Coronet Casuals, Inc., 207 NLRB 304 (1973); Daniel A. Donzavan, et al. d/b/a New Fairview Hall Convalescent Home, 206 NLRB 688 (1973); McGwier Co., Inc., 204 NLRB 492 (1973). Williams' conduct here was not so bad as to render her unfit for further employment. The intem- perate remark, directed at a fellow employee, oc- curred shortly after Williams' unlawful discharge during the course of the union campaign, of which she was one of the leaders. It was made during an otherwise casual conversation and was not accompa- nied by more aggravated statements or actions. Fur- thermore, there is no evidence that Williams was prone to or had ever engaged in any violent conduct, nor is there evidence that she ever intended to act on her threat here involved. In sum, we find that the Respondent has not shown that Williams, conceded- ly a "good" employee, engaged in conduct warrant- ing denial of reinstatement. Therefore, we shall direct Juanita Williams be offered reinstatement and back- pay from the date of her discharge to the date of her offer of reinstatement. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified herein and hereby orders that the Respondent, Rich- lands Textile, Inc., Richlands, North Carolina, its of- ficers, 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(d): "(d) In any other manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act." 2. Add the name "Juanita Williams" to para- graphs 2(b) and (c). 3. Delete paragraph 2(d) and reletter the subse- quent accordingly. 4. Substitute the attached notice for that of the Administrative Law Judge. 1 While we agree with the General Counsel that the Administrative Law Judge erroneously denied his motion to amend the complaint and allege as an additional 8(a)(1) violation the "no-distribution" rule enacted by Re- spondent, nevertheless, in view of the broad order entered in this case and the absence of full litigation on this issue, we do not believe that the purpos- es of the Act would be effectuated in the present posture of this entire case to make a finding respecting this allegation. 2 Respondent, the General Counsel, and the Charging Party have except- ed to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponder- ance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 220 NLRB No. 83 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to discharge employees for talking about the Union or about union mat- ters on company premises. WE WILL NOT create an impression that we are surveilling union activities of our employees. WE WILL NOT threaten our employees that the plant will close if the employees choose to select and to vote for the International Ladies' Gar- ment Workers' Union, AFL-CIO, or any other union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them under Sec- tion 7 of the National Labor Relations Act. WE WILL offer Gollie Williams, Evelyn Carter, Leah Batchelor, and Juanita Williams reinstate- ment to their former jobs or, if such jobs no lon- ger exist, to substantially equivalent jobs, with all seniority and other rights and privileges. WE WILL pay Gollie Williams, Evelyn Carter, Leah Batchelor, and Juanita Williams any pay they may have lost, with 6-percent interest, from the dates of their discharges in December 1973 to the date of our offers of reinstatement to their former or substantially equivalent jobs. All our employees are free to join and support or to refrain from joining or supporting the Internation- al Ladies' Garment Workers' Union, AFL-CIO, or any other union. RICHLANDS TEXTILE, INC. DECISION RAMEY DONOVAN, Administrative Law Judge: This case was tried at Camp LeJeune, North Carolina, on June 11-12, 1974, pursuant to a complaint issued on April 16, 1974. The charge had been filed and amended by the Union on January 31 and April 3, 1974, respectively. Un- fair labor practices in violation of Section 8(a)(1) and (3) of the Act are alleged in the complaint and are denied by Respondent's answer. FINDINGS AND CONCLUSIONS 1. JURISDICTION At all times material, Richlands Textile, Inc., herein Re- spondent, is a North Carolina corporation with a plant lo- cated in Richlands, North Carolina, where it engaged in the manufacture of women's sportswear. In a representative 12-month period, Respondent manu- factured, sold, and shipped goods valued in excess of $50,000 directly to points outside North Carolina. Goods and raw materials from directly outside North Carolina of a value in excess of $50,000 were received by Respondent during this same period. Respondent, at all times material, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. International Ladies' Garment Workers' Union, AFL- CIO, the Union herein, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES From August 1973 and earlier, the Union had engaged in organizational activity among Respondent's employees. On November 1, 1973, the Union filed a petition for certifi- cation with the Board. The Board hearing on the petition was held on November 20, 1973, and present at the hearing were representatives of Respondent, including Plant Man- ager Ingram; representatives of the Union; and four em- ployees of Respondent who had been subpenaed by the Union, a fact known by Respondent. The aforesaid four employees were subsequently discharged by Respondent and the complaint alleges that the discharges were discrim- inatory.' Respondent denies this. The Board's Decision and Direction of Election was issued December 19, 1973. The election was held on January 17, 1974, and the Union lost. Thereafter, the Union filed timely objections to the election. On December 31, 1973, Plant Manager Ingram sent a letter to all employees. The statements therein are not ille- gal but the letter's theme is in opposition to having a union in the plant and depicts the disadvantages of a union. The letter strongly urges the employees to reject the Union in the upcoming Board election on January 17, 1974. Inter alia, the letter states: In many Companies, employees have for years paid dues to Unions, yet today a great many of these em- ployees have no jobs. For many of those plants, which had unions and union contracts, are now closed down and out business. The last sentence of the letter, underscored, is: That you stand to lose if this union were to get in and that you stand to gain by keeping it out. It can be accurately said, therefore, that Respondent was opposed to having a union in its plant and that it mustered a variety of reasons to persuade its employees to reject the Union. On January 9 and 10, 1974, J. F. Mohn, currently and for 8 years a member of the House of Representatives of the North Carolina General Assembly, the state legislative body, sent letters to the employees of Respondent signed by Mohn. The letters bore the letterhead of the State 1 The discharges of the four employees who had attended the hearing took place on December 5, 14, 18, and 20, 1973. RICHLANDS TEXTILE, INC. House of Representatives, including Mohn's membership on various listed committees of the legislature. Mohn rep- resents, in the state legislature, the area of Respondent's plant in Richlands and the surrounding area. The letter stated, inter alia: It is my understanding that when the vote by the em- ployees of Richlands Textile, Inc., is taken on January 17, if they choose the Labor Union as their directors rather than the Richlands Textile, Inc., I am informed that the officials of this industry will begin to close down the operation. This to me would be a tremendous set- back to our community and hundreds of people that are now employed would lose their jobs. I feel it my responsibility to point out this situation to you so that in casting your vote you will know what the end results will be. I will appreciate your giving this your serious consideration. [Emphasis supplied.] In addition to his position as a state representative for the district that includes Richlands, a town of approxi- mately 1,000 persons, Mohn lives in the community and for many years has owned a farm supply store in Rich- lands. In 1963 Mohn was one of about 33 incorporators of the Richlands Industrial Corporation and he owns $800 worth of stock in the corporation. The basic purpose of the corporation is to promote the acquisition of land and buildings for the creation and development of sites for fac- tories and commercial enterprises in Richlands and in the surrounding area. The corporation leases or is selling to Respondent the latter's property in Richlands, the site of the plant. Mohn testified that prior to writing his letter he knew no official of the Respondent and had not discussed his letter with anyone in the Company. Mohn states that the state- ment in his letter, about the plant closing if the Union came in, was based on what people in the community told him. He then asked at the two local banks and at the office of insurance company representatives if they had a list of plant employees. Mohn states that he indicated that he had in mind writing a letter to the employees about the subject of the plant closing that so many people were calling and talking to him about. Although neither the banks nor the insurance people had a list of the employees, Mohn testi- fied that "the next thing I knew" there was a list of names and addresses of plant employees on the desk in his store and a similar list on the door of his house. Mohn composed the letter and had it typed and mimeographed by personnel and equipment at his legislative office in Raleigh. He gave the list aforementioned to the above personnel with in- structions to mail copies of the letter to those on the list. This was done. Mohn states that he did not send a copy of the letter to Respondent. Ingram testified that he became aware of the letter when an employee, unidentified, gave him a copy in the plant or placed it on his desk. This was evidently on January 10 or 11, 1974. Ingram states that copies of the letter "were all over the place [the plant] . . . when you have three or four hundred letters floating around, anybody can pick one up." Ingram thereupon contacted Coble, vice president of administration of Highlander, Respondent's parent com- pany. Coble was in another part of the State and came to 617 Richlands in response to Ingram's report of Mohn's letter. On January 10 or 11, 1974, probably the 11th, there was a relatively brief meeting at the local bank in Richlands. Present were Coble and Ingram from Respondent; Mohn; the bank manager; and the mayor of Richlands. According to Mohn, Coble told him the Company wanted him "to stop the letter and not have it mailed." Mohn replied that he had sent the letter as the elected representative of the people in the community and that it was his letter. Howev- er, he agreed to do what he could to stop further mailings. He thereupon called his office in Raleigh and learned that the letter had already been mailed. He then reported this to Coble at the meeting aforementioned. The fourth paragraph of Mohn's letter to the employees has been set forth above, the statement that Mohn had been informed that officials of the Company would begin closing the plant if the employees voted for the Union. At the hearing, Mohn was asked in reference to the meeting at the bank with Coble, Ingram, and the others: Q. Did Mr. Coble or Mr. Ingram tell you that the first sentence of the 4th paragraph I read to you just a moment ago from your letter was untrue? A. I don't remember that. Mohn was never asked by Respondent to issue another letter or statement rescinding his statement in the letter to the employees about the plant closing down if the Union came in. At the hearing Mohn also stated, "I was never convinced that my information [as set forth in his letter] was not true." At another point, Mohn stated, regarding the letter's assertion that the plant would close if the em- ployees voted for the Union, "That was my understanding then and it is my understanding now." 2 On the whole, I credit Mohn's testimony as described above. On the evidence, I do not find that Respondent initiated or procured the writing and issuance of Mohn's letter. It is not implausible that some of Mohn's constitu- ents and probably those whom he considered to be promi- nent citizens and community leaders, reflectors and mold- ers of public sentiment, believed or had reason to believe, that the plant would begin shutting down if it was orga- nized by the Union; or they believed that the risk that this might happen was an unacceptable risk. The plant was the town's sole manufacturer and, undoubtedly, with 300-400 employees, was its largest employer. Payroll and other ex- penditures diffused into the community. Mohn as a local businessman and political representative probably shared the same outlook as his constituents and was receptive to the idea that as a prominent citizen and state representa- 2 Coble testified that the Company had not solicited any support from Mohn or from community leaders. He also stated that at the meeting at the bank after the initial issuance of Mohn's letter had come to Respondent's attention, that he told Mohn that the plant was not going to close, regardless of the Union Coble does not claim that he asked Mohn to issue a retraction of his statements in the letter. Regarding Mohn and his letter, Ingram was asked. Q Did you tell him that it was incorrect that high officials from the Richlands Textile will begin to close down this operation if the Union comes in, or words to that effect? A. I didn't tell Mr. Mohn one single word Q. Did Mr. Coble, in your presence, tell him that? A. He did not. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive he should do something to prevent the plant from being jeopardized by the advent of the Union. Prominent citizens, including Mohn, probably believed or knew that Respondent had not established its plant in the small com- munity of Richlands because of its country air. Among such considerations as taxes and other selling points, the matter of availability of labor was no doubt a factor. There is little reason to believe that a prounion environment or a unionized plant was a selling point projected by the Rich- lands Development Corporation to Respondent or to other prospective employers. At least it is clear from Ingram's letter in December 1973 which preceded Mohn's letter of January 9 and 10, that Respondent was strongly opposed to having its plant unionized. Indeed, among other things, Ingram's letter pointed out to the employees that "many ... plants, which had unions and union contracts, are now closed down and out of business." The matter of the source of the list of names and ad- dresses of plant employees that mysteriously appeared at Mohn's store and at his home and was used by him in mailing out his letter is, of course, to say the least, thought provoking. Since the evidence indicates that, other than the list of employees furnished to the National Labor Rela- tions Board by Respondent with reference to the election, there were no other lists extant or outstanding, the proba- bility is that the list originated with Respondent. However, the evidence does not establish that the Company fur- nished the list to Mohn or to anyone else, whom the Com- pany knew or has reason to know, would give it to Mohn for the purpose of writing a letter or of writing a letter of the type involved herein. Suspicion is not evidence. The possibility exists that some person, perhaps of some stature in the community, secured the list from a clerk or secretary of the Company, without the knowledge of responsible of- ficials of the Company. It is fruitless to speculate on the theories on both sides of the question of who supplied and who secured the list and who left it at Mohn's store and residence. The company connection, like the French Con- nection, is illusive, and is lacking in adequate evidentiary support. I find that the Respondent did not initiate, pro- cure, aid, or participate in the preparation of the letter or in its dissemination . Mohn was not the agent of Respondent in the initiation of the letter. In view of the subject and the nature and circumstances of Mohn's letter, the responsibility of the Respondent to publicly disavow the position attributed to the Company therein, that the plant would close if the Union came in, presents a different 'ssue than the issue of whether the Company was responsible for the origin or original is- suance of the letter. As a general proposition a respondent cannot be held responsible for statements by third parties who are not its agents. Nor, ordinarily, would a Respondent be under an obligation to take any action regarding utterances by third parties. However, in my opinion, the instant Respondent, when Mohn's letter came to its attention on January 10 or 11, did have an obligation to repudiate effectively what the letter stated the Company would do if the employees voted for the Union. By not fulfilling this obligation the Compa- ny acquiesced in and ratified by its silence the policy attri- buted to the Company by Mohn. Mohn was not some Joe Doakes who had made a state- ment at the local coffeeshop or in a grocery store or else- where to the effect that he thought, or believed, or was convinced that the Company would close the plant if the Union came in. Mohn lived in Richlands and has owned and operated a farm supply business there since 1946. In a town of approximately 1,000 and in the surrounding com- munity, there can be no doubt that, as a long-established businessman, Mohn was, and was regarded as, a prominent citizen. We can, without indulging in social commentary, describe Mohn as a member of the local establishment and people in the area would so regard him. He would be privy to matters of importance in the community and his fellow citizens, more modestly situated, would be generally aware of this fact. But more importantly, Mohn was the elected state political representative of the district and had held this position for 8 years. As such, it is apparent that a majority of those in the district regard Mohn as knowl- edgeable regarding matters that affect his constituents, and, as their representative, they believe that he is reason- ably alert to protect their interests. The foregoing factors must therefore be taken into con- sideration when we evaluate Respondent's responsibility when it became aware of Mohn's letter to the employees. It was not Joe Doakes but J. F. Mohn, described above, who wrote to the employees. He wrote in the full panoply of his office as state representative from the town of Richlands, representing Onslow, Pender, and Carteret counties. The letter was on the official governmental stationery and let- terhead of the North Carolina General Assembly in Ra- leigh and the letterhead listed the seven committees of which Mohn was a member as well as his chairmanships and vice chairmanships. His home address as "Richlands, N.C.," was also duly recorded on the letterhead. In his letter, Mohn did not say that he "thought" or that "perhaps" or that "maybe" the Company would close the plant if the employees voted for the Union. Mohn stated unequivocally that if the employees "choose the labor union . . . I am informed that the officials of this industry will begin to close down the operation. . . . I feel it my responsibility to point out this situation to you so that in casting your vote you will know what the end results will be." This last sentence serves to emphasize that when Mohn stated that he was informed that company officials would close the plant if the Union came in, the information was so authentic and reliable that Mohn felt it his responsi- bility to tell the employees, his constituents, that "the end results" of voting for the Union would be that the plant would begin to close. The phrase "end results" conveys the concept of finality beyond peradventure of doubt or quali- fication. An average employee, on reading Mohn's statement that he was informed that the plant would close if the employ- ees voted for the Union and that Mohn felt that it was his responsibility to tell them that would indeed be the end result if they voted for the Union, would conclude, in my opinion, that Mohn had secured his information from a highly reliable source, a source to which a person of Mohn's stature in the community would believably have ready access. The most likely source of what the Company would do would be officials of the Company. Upon slight RICHLANDS TEXTILE, INC. 619 reflection, it would occur to a reader of the letter that a person of Mohn's responsibility in the community, and who was speaking to them as their elected state representa- tive, would not state categorically that the Company would close the plant if the employees voted for the Union, unless he knew that this was the fact and that the facts came from "the horse's mouth," so to speak .3 Depending on who se- lects the descriptive adjective, some cynical, sophisticated, misanthropic, or misinformed employee-reader of Mohn's letter may have concluded that not only did Mohn's infor- mation come from the Company but that the latter had suggested to Mohn that he inform his constituents of such fact. In any event, there were 300 or more copies of Mohn's letter that were, in Ingram's words, floating around the plant, without response from the Company to the employ- ees regarding what the letter said the Company would do if the employee voted for the Union. This company silence did nothing to cast doubt on what Mohn had said was the company policy on the union issue.' Apparently to make sure that the Company was aware of what Mohn had said the Company would do if the Union came in, an employee gave Ingram a copy of the letter. This evoked no repudia- tion of Mohn's statement by the Company. The sole action taken by Respondent regarding the letter was to ask Mohn to stop sending out any further copies of the letter although even then the Company was aware that hundreds of copies had gone out and that several hundred were floating around the plant. Mohn, after checking with his office in response to the Company's request to stop the mailing of further copies, informed the Company that all copies were already in the mail. The Company did nothing further and requested no other action from Mohn. In the particular circumstances described , it is my opin- ion that the Company in effect acquiesced in and ratified by its silence and inaction the unqualified and unequivocal statement in Mohn's letter that he had been informed that the Company would begin closing the plant if the employ- ees voted for the Union. In the context of the facts and events, company policy was set forth by a person whom the employees had every reason to believe was stating authen- tic company policy. It is my opinion that when the letter and its fait accompli mailed-status came to the Company's attention it was the Company's obligation to effectively repudiate to the em- ployees the statement of purported company policy if the latter had been incorrectly described in Mohn's letter. Fail- ure of the Company to take such action, as far as employee recipients of Mohn's letters were concerned , constituted company acceptance of, acquiesence in, and ratification of, what had been stated to be, in an aura, and from a source, of impressive authenticity, the company policy if the em- ployees voted for the Union. Although not essential to the foregoing conclusion, the obvious impact of Mohn's letter and the Company's corre- 3 Whether such a deduction by a reader was correct or not is not the point. I am convinced that what I have described would be the normal and reasonable reaction unless the reader was thereafter told by the Company that the plant would not close if the employees voted for the Union. 4 Ingram was aware of the letters in the plant Moreover, since most of the supervisors spent their time on the plant floor, not only the letter but its contents were known by the Company. sponding obligation, are compounded by the fact that Mohn's letter emerged not from a void but in an atmo- sphere and in a soil previously fertilized by the Company itself. The Company, in Ingram's letter of December 31, 1973, to the employees, poised the equation that "in many places where the people have had a union, they now do not have any jobs at all . . . many of these plants, which had unions and union contracts, are now closed down and out of business." It is not possible that this message was not productive of thoughts among the employees as to whether their plant, if it went union, might join those closed plants that had unions, as described by Ingram. Mohn, the high- est ranking local state political official in the area, 10 days later, stated unequivocally to the employees that he had been informed that the Company would close the plant if they voted for the Union and Mohn admonished the em- ployees that the "end result" of a vote for the Union would be closing of the plant. What had before been perceivable in some shadows was now seen face to face. When the Respondent became aware, on January 10 or 11, 1974, of the contents of Mohn's letter and became aware that the letter had been sent to all employees and was also "floating around the plant" in hundreds of copies, I find that Respondent's failure to communicate to its em- ployees that it was not company policy to begin closing the plant if the employees voted for the Union constituted adoption and ratification of the aforesaid statement by Mohn and in such a posture the statement about plant closing constituted a violation of Section 8(a)(1) of the Act.' The Discharges Juanita Williams: Williams had been employed by Re- spondent for approximately 4 years, starting in January 1970. She worked as a presser in the finishing department. Prior to an incident on December 5, 1973, when she was discharged, Respondent does not claim that Williams' work or her conduct as an employee was unsatisfactory in any respect. In the latter part of November 1973 Williams had heard rumors that the number of pressers was going to be reduced. She spoke to her supervisor, Pittman, about this. Pittman assured her that she had nothing to worry about since she was one of the pressers who made produc- tion, that she was "one of the good pressers" and that he was going to keep her on the pressing.6 Pittman did not 5 Between January 10 or 11, Thursday and Friday, and January 17, the date of the election on the following Thursday, there was ample opportuni- ty, both orally and in writing, to repudiate the representation that had been made and circulated to all employees about company policy. In this connec- tion the record reveals that President Rounick of Respondent's parent com- pany made a speech in Respondent's plant to the employees of Respondent regarding the union issue . The speech was after Respondent had received Mohn's letter and before the election. There is no claim or evidence that Rounick repudiated the statement in Mohn's letter that the officials of the Company would close the plant if the employees voted for the Union. 6 Williams, like the other employees in the garment plant, worked on a piece-work basis If an employee produced the number of units for the job as established by the Company, she was paid a rate higher than the mini- mum rate of $1.80 per hour and was characterized as making production. Employees who did not produce the number of units set for the job were paid $1 .80 per hour. Such employees were described as being on "make-up." According to Coble, vice president of administration of Respondent's par- Continued 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testify. Williams signed a union card in August 1973 and, in fact, she had also signed a card in the fall of 1972. In 1973 she also solicited some other employees to sign cards. Her identification with the Union became manifest to Respon- dent when she and three other employees were subpenaed by the Union to appear at the Board representation hear- ing on November 20, 1973. Williams testified at the hear- ing. On Monday, December 3, 1973, the eighth working day after Williams' appearance at the hearing, Gonyo became supervisor of the finishing department. On December 5, Wednesday, Williams started work as a presser at her usual starting time.' After pressing for about 30 minutes, she and some others were told to go and pin and clip blouses. After performing this task for a short time, Williams and another presser were sent back to pressing.8 While Williams was pressing, Gonyo came over to her and told her to stop pressing and that she was going to take training to become a sewer, a sewing maching operator. Williams then told Gonyo that she had never sewed in her life and that she did not know how to sew. Gonyo assured her that there was no cause "to worry"; he said that if, after taking the training course in sewing for 2 weeks, she did not learn to sew, he would place her on anotherjob. Gonyo then took Williams to the sewing training class which was in the same plant building. He introduced Williams to Home, who was in charge of sewing instruction, saying that he had brought Home another girl for training in sewing . Gonyo then left the training class after telling Williams that Horne would probably be her boss for the next 2 weeks. After Gonyo departed, Horne told Williams to have a seat and that when Horne had time she would show Wil- liams how to thread the sewing machine and how to oper- ate it since at the moment Home was showing some other girls in the training school how to set and sew in zippers. Later, as Williams was waiting, she asked Horne if the lat- ter would arrange for her to speak to Plant Manager In- gram. Horne said she would. Horne then departed for a brief interval, returned, and told Williams that Ingram was in conference and could not see her, but, Horne added, "Mr. Nirenberg wants you to go to his office." 9 Horne said, "when you get through seeing him, come back and I will show you how to thread the sewing machine." Wil- liams then left her personal belongings in Horne's training class and went to Nirenberg's office. All of the foregoing description is based on Williams' uncontroverted testimony since neither Gonyo nor Horne testified. This is also true with respect to what was said between Home and Williams after the latter left Nirenberg's office. Williams testified that when she came into Nirenberg's office, he asked his secretary to leave. When the latter stepped outside, Nirenberg closed the door, and before Williams said anything, he told her that he did not want to ent company, 70-75 percent of Respondent's employees have been on makeup. 77:30 am. 8 Williams obeyed these various assignments without protest or objection 9 Nirenberg was the manager of the sewing department. hear anything she had to say. He then looked at his watch and said that "As of twenty minutes of 10:00, you are dis- charged from this plant." Williams asked, for what reason. Nirenberg said that he did not have to answer her ques- tions but said, for disobeying orders. Williams asked what had she been told to do that she had not done. Nirenberg said that his mind was made up and there was no use talk- ing to him. Nirenberg told her to stay there until her check and termination papers were brought to her. Williams said, in substance, that, since she was "fired," she was going back to the training class to get her pocketbook. Nirenberg followed her out of the office, warning her not to cause a scene or he would "call the law" to remove her from the premises. Williams immediately returned to the training class where Horne told her to be seated and she would show Williams how to thread the sewing machine. Williams said, in substance, that she could not sit down for instruction "because I have been fired." Horne asked, "why." Wil- liams said that it was for refusing to do something she was told to do and told Horne what Nirenberg had said in the office with Williams. Williams pointed to Nirenberg who had followed her and who was standing in the doorway of the training class. Horne then went over to Nirenberg and asked why Williams was fired, saying that Williams had not done anything. Nirenberg told Horne to "hush," that he was handling the matter. After receiving her check, Williams departed. Her termi- nation slip stated "insubordination" as the reason for ter- mination. Although a termination for insubordination is a discharge for cause and renders a claim for unemployment compensation defeasible, Williams' claim was not contest- ed by the Company and was granted. Nirenberg's version of Williams' discharge is that she "refused to accept a transfer from the finishing department through the sewing training school, onto the sewing floor." According to Nirenberg, he "received word that when she [Williams] was taken to the training school that she refused to begin sewing" and Williams was then sent to his office. In the office, Williams, according to Nirenberg, told him she had never sewed and that she did not want to sew and that she wanted to see Ingram. Nirenberg states that he told her that "it's not possible to see Ingram" but she insist- ed repeatedly; "and, then it occurred to me [Nirenberg] eventually that she would never begin sewing, that she did not want to sew and the Company had offered her an alter- native [sewing] to termination. . . . This she categorically refused and I thought I had no recourse but to let her go." When Nirenberg was asked who had reported to him that, when Williams was taken to the sewing training class, she had refused to begin sewing instruction, he replied, that "it came from Sarah Horne through an intermediary and I've forgotten who that was... . Since neither Horne nor the unnamed intermediary testi- fied, I find Williams' testimony, as to what transpired in the training class between herself and Horne, both immedi- ately before and immediately after her discharge, to be the more credible version of the events. The evidence does not persuade me that Williams refused a transfer to the sewing class or refused any order or direction of Horne or any other supervisor regarding the matter of sewing. While I RICHLANDS TEXTILE, INC. 621 believe that Williams preferred to remain a presser rather than to become a sewing machine operator, I am not per- suaded that it was her position or that she indicated to Home or Nirenberg that she was so opposed to sewing that she would never accept training in sewing.1° Williams had worked for Respondent for about 4 years. As far as appears she was a good employee who needed or wanted (or both) a job with the only major employer in the area. If she was so opposed to sewing that she preferred termination to sewing, she could have so informed Gonyo when he transferred her to the sewing class . She could have also told Horne that she would not take sewing instruction. But, as I view the evidence, she did not take such a position either to Gonyo, Horne, or Nirenberg.ll Based on the evidence before me, I find that Williams was discharged because her union activity and adherence had become known to Respondent when the Union subpe- naed her at the Board hearing on November 20, 1973. 12 I find that Respondent's contention that the discharge was for refusing to take sewing instruction or to become a sew- ing machine operator is not convincing and is not borne out by the credible evidence. I find that the discharge con- stitutes a violation of Section 8(a)(3) and (1) of the Act. Subsequent to Williams' discharge on December 5, she was involved in an incident in January 1974, very shortly before the Board election in the plant on January 17, 1974. Juanita Williams, Carter, Gollie Williams, and Baysden, all females, were sitting in a car parked about a half mile from the plant." According to Carter, she and the other occupants of the car had been engaged in passing out union leaflets near the plant gate. Craft is employed by Respondent as a sweeper and cleanup man . He is not a young man in the prime of life. On his way home from the plant on foot , he passed the parked car, referred to above, in which four women were sitting. Previous to this he had known casually , and had seen, Juanita Williams at different places in the community over a period of 8-10 years. The indication is that Craft also recognized the others as people whom he had seen in 10 See Nirenberg's testimony, above, that he concluded that Williams "would never begin sewing" and had "categorically refused" to sew when the Company had offered her sewing training and an eventual sewingjob as ,.an alternative to termination." 11 The fact that Williams wanted to talk to Ingram establishes nothing. At the hearing Williams was not asked why she wanted to talk to Ingram and the record therefore does not reflect what she had in mind Perhaps she wished to ask that in the event the Company needed additional pressers in the future that she be given an opportunity to return from sewing to the presser job. Perhaps she wished to say that since she had been with the Company several years and had been told by her supervisor that she was one of the best pressers, she should have been kept on as a presser I see no reason to conclude that Williams wanted to see Ingram for the purpose of telling him that she absolutely refused to take sewing instruction or to be- come a sewing machine operator . She could have told that to Gonyo or Horne with the result as predictable as would be the result of making the same statement to Ingram. 12 It would be the most elementary of inferences for Respondent to con- clude that a union engaged in trying to organize the plant and to secure representative status as bargaining agent would subpena and have present at the Board hearing as potential and actual witnesses those employees who were union supporters, indeed those employees whom the Union considered to be its ablest, most informed, and most active supporters 13 Except Baysden , all the occupants had been discharged by Respondent in December 1973, and they are alleged in the complaint as discriminatees. the community at one time or another. After considering the testimony of Craft, Juanita Wil- liams, Carter, and Gollie Williams concerning the matter, I believe that the following is essentially what occurred. One or several of the women in the parked car called Craft over to the car as he was walking past. At least three of the women, Juanita Williams, Carter, and Baysden then en- gaged in a bantering type of colloquy with Craft. Craft was asked todjoin and vote for the Union in the impending election.) He said he was not going to join or vote for the Union. According to Craft, Juanita Williams then said to Craft that if he did not join the Union she was going to bum down his house. Craft then walked away. Juanita Williams testified that she never threatened an employee that she would burn his house. Carter and Gollie Williams testified that in the Craft incident, it was Carter who told Craft that they would or might burn his house down if he did not join the Union. While I am satisfied that the conversation was, in gener- al, one of banter and that the women were not scowling or looking grimly at Craft, the statement about burning his house was not one that Craft did or could reasonably ig- nore. I do not think that Juanita Williams would have burned Craft's house and I doubt that he was convinced that she would. The point was, however, that, when and after the statement was made to Craft, he had no way of being sure one way or the other what someone who makes such a statement would do.15 The minimum vice in such a statement is that it creates uncertainty and uneasiness, whether pronounced or vague, and, presumably, when an advocate of a position has failed to convince another per- son to the advocate's point of view (Craft had not been persuaded to support the Union), the utterance of a threat, whether delivered smilingly or not, is a sort of last resort type of scatter-gun action that might have the desired ef- fect. Craft was not a sophisticated person but his answers to certain questions by the General Counsel impressed me as credible and as epitomizing the' situation created by the statement made to him by Williams. Thus, Q. Well, did you really think she was going to burn your house, Mr. Craft? A. Well, I didn't know whether she was nor not. Craft did not report the matter to the sheriff but he testi- fied that he had determined that he himself would stop anyone from burning his house "because that was my place of staying [that was where I lived]." The day following the incident a group of employees were discussing the Union and in the course of the conversation Craft told an employ- ee named Croomes what had been said to him by Williams about burning his house. Croomes reported the matter to Manager Ingram who then spoke to Craft about the affair and thus confirmed the account. Craft was positive in his identification of Juanita Wil- liams as the person who made the statement. I perceive no reason why he would have said it was Juanita Williams if 14 Carter testified that this occurred the day before the election. 15 Craft did not live in town but in the country. It probably was a modest dwelling, relatively isolated, and easily accessible to someone disposed to go there for whatever purpose 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he believed and knew that the statement was made by one of the other women in the car and I believe that the matter was such that he would know who had made the statement. Under all the circumstances, it will not be recommended that Respondent be ordered to offer reinstatement to Jua- nita Williams. Gollie Williams: This employee worked for Respondent as a maid in the housekeeping or maintenance department from May 1973 to October 5, 1973. She was terminated because her duties were turned over to the plant protection employees. While an employee, Williams had signed a union card on August 8, 1973, and had given some cards to a few other employees. After her October 1973 termination as a maid, Williams took a test in Respondent's office and qualified to attend the sewing class conducted in the plant. Williams complet- ed the course and was reemployed by Respondent in the sewing department. In that department she worked on set- ting zippers and on closing collars and setting labels. Her supervisor was Brenda Jarman, whom Nirenberg, the sew- ing department manager described as the head supervisor on the sewing floor. Williams was subpenaed by the Union as a witness at the Board hearing on November 20, 1973, and she testified at the hearing. A day or two after this event, she was sum- moned to Nirenberg's office by Jarman. In the presence of Jarman, Nirenberg told Williams that "we" are all aware of the Union's movement among the Company's employees and he warned Williams "not to discuss anything concern- ing it on the premises." Nirenberg went on to say that "what all went on down at the courthouse [at the Board hearing] is not to be discussed around here . . ." and he warned Williams that if the foregoing was discussed around here, "your job will be jeopardized and you will lose your job." 16 I find that the threat of discharge for discussing union matters on company premises constitutes a violation of Secton 8(a)(1) of the Act. On December 14, 1973, Williams commenced work at 7:30 a.m., and had been working at her machine for about 16 Nirenberg's version is that in his office he did speak to Williams concerning "discussion about the Union on the floor [of the plant]" and told her such discussion was not allowed on "Company time" but what she did on her own time was her affair. Neither Nirenberg nor Jarman , who were witnesses called by Respondent, denied that Jarman was present during this conversation as testified to by Williams. Jarman, the head supervisor on the floor, would presumably have corroborated Nirenberg regarding the matter if her recollection coincided with that of her superior , Nirenberg . But in her testimony, Jarman did not refer to this conversation between Nirenberg and Williams in the office However, considering Nirenberg's version on its face, it is apparent that employee discussion "about the Union" was what he warned Williams about. Nirenberg did not say that employee discussion about other topics on company time was similarly proscribed and it is apparent that in this plant with over 300 employees, mostly women, and in almost every other plant with female or male employees , the employees talk to each other about a variety of nonwork topics during company time . Indeed the evi- dence is clear that in the instant plant where groups of women were press- ing, pinning, sewing and performing other manual tasks in close proximity to each other, there was a great deal of talking. It requires little imagination to know that people in such circumstances discuss birthdays , marriages, vacation trips, social events, health, weather, husbands, boy friends, clothes, cars, food, television programs, and all matters of topics unrelated to work and during company time. Nirenberg by his own version only warned Wil- liams of discharge about discussion of the Union on company time. 50 minutes when Jarman told her to take her personal be- longings and go to Nirenberg's office. When Williams came to the office, Nirenberg said, "Gollie, I have told you about talking." Williams said, "talking about what?" Ni- renberg repeated that he had told her about talking "and you were talking because I was out on the floor and I heard you." Williams denied that she had been talking. Niren- berg asked her to sign a paper and she refused. Nirenberg told her it made no difference. He told her to wait there for her check and not to go back on the sewing floor. The check was then brought to her and, as directed, she left the plant. Nirenberg testified that ever since he came with the Company in October 1973, he "had had continuing re- ports" that Williams "was frequently late in the mornings, late coming back from morning and afternoon breaks, late from lunch, and she was doing excessive talking...." Ni- renberg states that these continuing reports came from Jar- man and service girl, O'Dell. Nirenberg testified that he spent 98 percent of his time on the sewing floor and on numerous occasions he observed Williams "flagrantly" vio- lating "the excess talking rule." Jarman, who was Williams' supervisor during the latter's entire period of employment as a production worker, start- ing in October 1973, testified that Williams "came in late for work quite a few times, she was late for lunch, she would go to the bathroom too much...." Jarman said that Williams "talked too much...." At another point Jarman stated that Williams "was late more than once and she talked more than once, went to the bathroom too much." Jarman states that she reported these matters to Nirenberg. Employee Garvey testified that Williams "came in late every morning, she came in late everyday at lunch, and, then her talking, she talked about all the time." When asked for specifics regarding the talking, Garvey stated that "quite often" Williams said "I am for the damn Union." This annoyed Garvey "because I did not want the Union." Plant Manager Ingram testified that employee Findeisen came to him because Williams had been saying to her "that if she did not join a union that the possibility of her work- ing there would not be profitable" and Findeisen said she was afraid that she would lose her job if she did not join the Union. Ingram testified that he reported this matter to Nirenberg the same day. Findeisen testified that there had been no direct conver- sation between herself and Williams regarding the Union.' However, according to Findeisen, over a period of more than a month, when Findeisen was in the restroom she heard Williams talking to other women in the restroom. As described by Findeisen, a typical such occasion was when Findeisen was in a restroom booth and heard Williams, who was in the lavatory section, talking to other women in that portion of the restroom. When asked by Respondent's counsel what Williams had said, Findeisen's replies were as follows: 17 Findeisen worked in shipping and Williams worked in the sewing de- partment RICHLANDS TEXTILE, INC. 623 A. That if we didn't join the Union we were damn fools. Q. What else? A. And our jobs were in jeopardy if we didn't. ... it was insinuated to me our jobs were in jeopar- dy. [Objection sustained to the insinuation] At this point there is at least some reason to wonder wheth- er the witness heard Williams say that jobs were in jeopar- dy or what Williams said or whether Findeisen's construc- tion or deduction from whatever was said was a valid or reasonable deduction or whether Williams' words could reasonably be said to "insinuate" more than did the actual words in context, whatever they were . Be that as it may, counsel then asked the witness to "tell us best you remem- ber what her [Williams'] words were that you heard." Nor- mal expectation at this point, in my opinion , was that the witness would now give a substantially complete answer as to what she had heard. 18 Her answer was: "A . That if we didn't join the Union we were damn fools ." Again, counsel asked the witness whether Williams said "anything else ...." "A. That we would be fired if we didn't join the Union." It can be said, therefore, that Findeisen testified that on "several occasions" over a period of weeks she heard Wil- liams say to other employees that , we were damn fools if we did not join the Union and that we would be fired if we did not join. This is not a complicated statement . It should be easy to remember, particularly since it allegedly was said repeatedly and affected Findeisen so much that she reported it to her supervisor who went with Findeisen to report the matter to Plant Manager Ingram . 19 The question is why was it so difficult to elicit from Findeisen the testi- mony that she heard Williams say that they would be fired if they did not join the Union. The latter is a very blunt statement ; no insinuation is involved; the word jeopardy was not used, but rather, according to Findeisen's ultimate version, Williams said they would be fired if they did not join the Union. Why did Findeisen in her initial answers inject, sua sponte, the thought or statement that Williams' words insinuated that jobs would be in jeopardy rather than testify forthwith that Williams had said those who did not join the Union would be fired. Since Findeisen report- ed Williams' statements to Ingram , she presumably would have told him, if Williams had made such a statement, that Williams had said they would be fired if they did not join the Union. If this was what Findeisen reported to Ingram, it is difficult to understand why Ingram did not so testify. Instead, Ingram testified that Ingram reported Williams as 18 Allowing for some nervousness in almost any witness, the fact remains that Findeisen had been called by Respondent and she was under direct examination by Respondent's counsel Without difficulty, the witness had been asked and had answered a series of questions about when and how long she had heard remarks by Williams in the restroom. As we have seen, counsel had already gone over with her in questions and answers the subject of what Williams had said . Because she had injected the aspect of an "insin- uation" in one of her answers , she was then asked once again to tell what Williams had said . Presumably, at this stage, the answer would be complete or at least would contain all the basic ingredients of what she had heard. 19 "I was real nervous ; I went to my supervisor and then she and I took it up with Mr. Ingram." saying that "if she did not loin a union, the possibility of her working there would not be profitable." There is no apparent reason why Ingram would describe the report in such convoluted terms or resort to understatement in des- cribing what Findeisen told him. Ingram was not trying to protect Williams and if he had a report from Findeisen that Williams had stated that she would lose her job if she did not join the Union, I believe that Ingram would have so testified. I accept the fact that Findeisen, based on something that she had overheard Williams say to other employees in the restroom, was apprehensive about her job if she did not join the Union. I am not satisfied, on the evidence, that Findeisen heard Williams say in words or in substance that those who did not join the Union would be fired or would lose their jobs. I believe that Findeisen was more than ordi- narily sensitive on the matter of not losing her job. She described herself as a "widow woman and live by myself with two children." While her concern about her job is understandable, the question is whether Williams had in fact made the statement attributed to her or a statement that could be reasonably interpreted as implying or insinu- ating (to use a word proffered by Findeisen at one point in her testimony) a coercive and illegal threat that those who did not join the Union would lose their jobs. Although Findeisen testified that she had heard Wil- liams stating to groups of employees in the restroom (but never to Findeisen) that they would be fired if they did not join the Union and that this continued over a period of 4-6 weeks, no other employee testified to having heard such a statement. Garvey, for instance, an employee called as a witness by Respondent, was by no means partial to Wil- liams and testified adversely to Williams on the latter's conduct as an employee. Garvey worked next to Williams and had discussions with her on the union topic because Garvey admittedly "did not want the Union." However, the strongest statement that Garvey heard Williams make regarding the Union was that "I [Williams] am for the damn Union." If, as Findeisen asserts, Williams made it a practice over a period of at least a month or more to tell employees that they would be fired if they did not join the Union, the implication is clear that Williams was using such a statement to convince employees to support the Union and that Williams considered that such a statement to be a good "persuader." It is not easy to understand why such a statement was not made to Garvey by Williams since Garvey was clearly opposed to the Union and quite evidently would be a logical recipient of the best "persuad- er" that Williams could muster. r, The next aspect of the Findeisen matter is, when did she report to Respondent the statements made by Williams? Findeisen testified that, after hearing the statements for several weeks. "I went to my supervisor and then she and I took it up with Mr. Ingram." This report to Ingram by Findeisen, accompanied by her supervisor, took place, ac- 20 Williams denied having ever made a statement in the restroom to the effect that those who did not join the Union would be fired For reasons previously described, I have expressed my view that although Findeisen was apprehensive about her job because of something she had heard Williams say to others, the statement attributed to Williams by Findeisen was not made. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to Findeisen "approximately 2 weeks before the election." Since the election was held on January 17, 1974, and Gollie Williams had been discharged on December 14, 1974, this would place the report to Ingram after Williams' discharge and Ingram does not claim that other than from Findeisen he had any report on the Findeisen matter. However, after testifying as indicated above as to when the report to Ingram was made, F'indeisen's testimony indi- cated great uncertainty as to the approximate time of the report and apparently she did not know when this oc- curred. Ingram testified that he received the information from Findeisen in October or November 1973 and on the same day relayed the information to Nirenberg. Regarding the discharge of Gollie Williams on Decem- ber 14, 1974, Ingram testified that she was discharged for "excessive talking, absenteeism, lateness on getting to and from her job...... On October 14, when he discharged her, Nirenberg told Williams that he had spoken to her about talking "and you were talking because I was out on the floor and I heard you." Nirenberg testified that since October 1973 he "had con- tinuing reports" that Williams was "frequently late .. . and she was doing excess talking ." Nirenberg states that ,.on numerous occasions" he observed Williams engaged in excess talking. He said that these reports came from the head floor supervisor, Jarman, and from O'Dell. O'Dell did not testify. Jarman, as we have seen, testified that Williams was late "quite a few times," went "to the bathroom too much" and "talked too much." Garvey testified that Wil- liams was late "every morning," late "everyday" at lunch and "talked all the time." Garvey's testimony, in my opinion, was exaggerated. The question is, however, how serious were Williams' dere- lictions and how seriously did Respondent regard them be- fore she and the other employees, who were discharged, appeared for the Union at the Board hearing. Despite "continuing reports" about Williams since October, Niren- berg never called Williams to his office to reprimand her or warn her about her conduct until after her appearance and testimony at the November 20 hearing. However, Niren- berg does assert that he had spoken to Williams on the plant floor. He describes what he said as follows: Q. What were the words to Mrs. Williams? A. Talking too much, "I'd like to see more sewing out of you, come on let's go, a pep talk kind of thing." A "pep talk sort of thing" by the department manager who was on the floor 98 percent of his time, to employees work- ing on a piece work system was in all probability not an exceptional occurrence. Nothing in the remarks to Wil- liams can be said to convey a warning of disciplinary ac- tion and certainly no hint of possible discharge. Nor are the remarks consistent with the picture portrayed in Nirenberg's testimony nor with that of other witnesses of Respondent to justify Williams' discharge i.e., continuing reports of frequent lateness (indeed, according to one wit- ness, lateness everyday continuously); continuing reports of excess talking that Nirenberg claims was seriously inter- fering with production. Head Floor Supervisor Jarman, who had been Williams' supervisor throughout her employment as a production worker, had also testified, as we have seen, about Williams' derelictions. Jarman was asked by Respondent's counsel: Q. Did you have any conversations with Gollie Williams about her activities in these regards? A. I said something to her about being late a couple of times and talking. I would ask her to try to be on time. Q. [Judge] What about these other matters? A. Well, usually I would go to a girl about talking, I ask them to please cut down on their talking, you know, and try to do their work because when they talked they disturbed other girls. Nothing in the foregoing picture even approximates an ex- pression of great concern or an indication to the employee that her conduct must improve or that any disciplinary ac- tion would take place, let alone any indication of possible discharge. If Williams' conduct was as depicted by Re- spondent at the hearing, no supervisor had taken the rather simple step of telling her that the next time she was late or whatever, she would be suspended or discharged; or telling her that unless her conduct improved she would be sus- pended or discharged because of the "flagrant" violations that Respondent testified she had "continuously" engaged in throughout her employment as a production worker. Either Respondent's witnesses have exaggerated Wil- liams' deficiencies or, in whatever degree such deficiencies existed, they were tolerated by Respondent in that no ac- tion or words, reasonably appropriate to remedying such conduct were ever taken until a day or two after Williams appeared and testified at the hearing. Even on this occa- sion, the warning was confined to a warning not to discuss the Union on the premises and what went on at the hear- ing. Nothing was said about any other matter. No mention was made of alleged continuous lateness in reporting to work, or in coming back late from breaks and from lunch. No mention was made of any report by Findeisen of al- leged repeated coercive statements by Williams to employ- ees in the restroom. When Williams was discharged on December 14, it was 50 minutes after she had started work that morning. There is no claim that she was late for work or had been in the restroom or was late from a break or from lunch. Niren- berg simply said that he had told her "about talking" and had heard her talking on the floor and he was therefore discharging her. Williams denied that she had been talk- ing.21 21 Although Nirenberg claims that on this occasion he also reminded her that she had been warned about lateness , I am not persuaded that such was the fact. Nirenberg's testimony about the prior occasions when he spoke to Williams, as previously described , is clear that he referred only to talking. Thus, he had previously given her a "pep talk " about more sewing and less talking; on the occasion when he called her to his office after her appear- ance at the hearing, he confined his remarks to her talking. It appears un- likely therefore that when he discharged her, he referred to matters other than talking. If he did mention other derelictions when he discharged her, there were matters long existing about which she had never been warned or admonished in any true sense of the term and which , if mentioned on De- cember 14, constituted an effort to bolster the discharge with matters never seriously pursued previously by Nsrenberg or any supervisor. It is also to be RICHLANDS TEXTILE, INC. Although Nirenberg, at one point or another in his testi- mony, refers to the "excess talking rule," there was no such rule, as such, in the plant. Except for the three employees, including Williams, who were subpenaed by the Union at the hearing, no instance was known or cited of any other employee being discharged for excess talking. While the absence of a specific rule does not foreclose an employer from discharging an employee for any misconduct, the ab- sence of such a rule in the instant plant is of some materi- ality in view of the fact, reflected by the evidence, that the employees did considerable talking while engaged in their tasks, and in view of the fact that Respondent had a hand- book of general rules as well as a sheet of specific listed rules that were given to all employees. After a consideration of all the evidence, it is my opinion and I find that, while Gollie Williams had some deficien- cies as an employee, the underlying motivation for her dis- charge was her appearance and testimony at the hearing at the behest of the Union and Respondent's awareness that she was one of the strong union activists 22 At the least, Williams' union activity was a contributing factor in her discharge. Moreover, such deficiencies as Williams had, were found by Respondent to be intolerable only after her appearance at the hearing. I find that the discharge was in violation of Section 8(a)(3) and (1) of the Act. Evelyn Carter: Carter had been employed in Respondent's sewing department since July 1970. Throughout her employment she had been complimented on her work by her supervisor, Jarman. Carter was given a union card by employee Batchelor and Carter signed it in August 1973. Jarman and Carter had a friendly relation- ship and, in October 1973, a Thursday, after work, Jarman rode with Carter, in the latter's car, to a beauty shop. In the course of conversation on this occasion, Jarman stated to Carter a number of times that she had "heard something" about Carter but failed to explicate what the "something" was. The following Tuesday or Wednesday in the plant, Jarman had a conversation with Carter after Carter's irrita- tion was evident regarding this tantalizing and mysterious "something," Jarman said that she had heard that Carter had signed a union card and had joined the Union. Carter admitted that it was true that she had signed a card and had joined the Union. Jarman then said that she wished that Carter had had nothing to do with the Union, "that it would cause a whole lot of trouble" and she wished that Carter had not done so. In her testimony, Jarman affirmed the trip to the beauty parlor but, regarding the conversation as described by Car- ter on that occasion or a few days later, Jarman did not recall having made some of the statements attributed to her and denied others. I credit Carter's testimony and find that the conduct constituted the creation of an impression of surveillance in violation of Section 8(a)(1) of the Act. noted that Nirenberg did not mention to Williams, either on November 23 in his office or on December 14, nor does he claim to have done so, the alleged 4- to 6-week series of statements by Williams in the restroom that all those who did not join the Union would be fired This surely would have been a pertinent matter to mention if it occurred as claimed. As it was, the "talking" referred to by Nirenberg was "talking," topic unstated, on the floor of the plant. 22 Respondent's opposition to having a union in its plant is clear. 625 Carter was one of the four employees that were subpe- naed by the Union and who were present at the Board hearing on November 20, 1973, a fact known to Respon- dent. During working hours, on the afternoon of December 17, 1973, about 1:30 or 2 p.m., 6 working days before Christmas, Carter and about four other women working in her immediate area, were talking. No one was addressing any other person in the group in particular and they were all talking about one thing or another and on no particular subject. This was during the general holiday season when, with company permission, the plant was being festively decorated and nuts and candy were being passed around. Jarman then came up to Carter and told her that she was talking too much and to quit talking. Carter complied and stopped talking. A short time later Jarman returned with a form which in effect stated that Carter on that date had been reprimanded for talking. Carter signed the paper as requested since she had in fact been reprimanded for talk- ing a short time before as described above. No other em- ployee was similarly reprimanded. Carter testified that she did no more talking on that day or on the following morn- ing. The day following the written reprimand, Carter started work as usual at 7:30. She was thereafter sent to Nirenberg's office and was discharged by Nirenberg at ap- proximately 8:05 a.m., December 18, 1973. Nirenberg and Jarman were both present in the office. Nirenberg told Carter that she was fired for talking. Carter told Nirenberg that she had not been talking since the time Jarman had spoken to her about talking the day before. Carter then asked Jarman if she had talked since that time. Jarman said, "no," that Carter had not talked the day before, after the warning, and as to the morning of the 18th, Jarman said that she had "riot had a chance . . . to notice" wheth- er Carter had talked between 7:30 and the time when she was brought to the office, about 30 minutes later.23 Nirenberg testified that ever since he had been with the Company he had reports from Jarman about Carter's ex- cessive talking and Nirenberg states that he himself had observed her talking. Employee Davis, a witness called by Respondent , testi- fied that she had worked beside Carter for approximately 3 years. Davis states that Carter was constantly talking .,most of the time" throughout the years and that there was "no real change" in Carter's talking propensities in the last months of her employment. Service girl Foy, a witness called by Respondent, had been employed in the plant prior to Carter's hiring in 1970.24 Foy stated that the em- ployees talked during the day and some talked more than others. Foy states that Carter talked more than others throughout her more than 3 years of employment. During this entire period, according to Foy, Carter' s talking nei- ther increased nor decreased and "it was always about the 23 Jarman does not deny this Carter-Jarman colloquy in the office, nor does Nirenberg. 24 A service girl keeps a group of employees supplied with work and she renders assistance to them, if she can, when some problem arises. She can assign an employee to a different machine if the employee runs out of work. Foy reports to Jarman but is not a supervisor. Jarman does relay orders to the employees through Foy 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same." Foy states that "several times" she had reported the talking to Jarman "because Brenda [Jarman] [herself] would come by and catch her talking and tell me [Foy] to go by and tell them to quit talking...." As far as appears, Foy was never told to admonish Carter individually, and Foy states that she never did give Carter any kind of an individual caution or admonition. Foy testified, "I'd just go by and ask them all to quit talking." 25 Jarman testified that Carter talked excessively , apparent- ly throughout her employment. Jarman stated, "I have said something to her about talking over a period of time." In describing her procedure and its content Jarman stated, "Well, usually [when] I would go to a girl about talking I ask them to please cut down on their talking...." Carter testified that when Jarman would walk through her section in the plant and heard people talking, Jarman would say, "My goodness, this is a noisy crowd today" or something like that. Carter states that Jarman never told her individu- ally that she was talking too much. Since Foy and Holl- ingsworth at least partially corroborate Carter that such mild admonitions as there were were in the nature of exhortations to groups of employees rather than to Carter or anyone else individually, I credit Carter. Indeed, Jarman's testimony is not wholly at variance on the matter of how talking was dealt with and, aside from Jarman's statement that she had said "something to her [Carter] over a period of time," there is no evidence of anything specific that even indicated serious concern or that could qualify as being in the nature of a warning of any disciplinary action, let alone discharge, for talking. Nirenberg testified that he had many reports from Jar- man about Carter's talking. Nirenberg states that "through his chain of command," "Jarman," "Hollingsworth," and "Foy" he tried "to get the message" to Carter that "she was talking more than, if you want to call it, the usual ..." and "I just couldn't condone it." 26 In addition, Nirenberg testified that on one or two occasions on the plant floor as he was walking through, he spoke to Carter and said, "Less talking, more work." This is certainly a routine and unex- ceptional comment from a supervisor to an employee who allegedly was engaging in intolerable talking throughout her employment. However, Nirenberg's exhortation is con- sistent with the bland group exhortations delivered by Jar- man, Hollingsworth, and Foy to groups of employees that included Carter. Neither collectively nor individually does the conduct of Nirenberg, Jarman, Foy, or Hollingsworth, regarding Carter, jibe with the picture of an employee en- gaged in intolerable conduct despite repeated efforts and warnings by her employer to put a stop to her talking. At no time did any supervisor even approximate saying to Carter, in words or in substance, that she must stop her talking or suffer the consequences; or, that she would be disciplined for talking; or so that if her conduct did not change, she would be suspended or discharged. 25 Hollingsworth, another service girl who serviced Carter and others, was also a witness called by Respondent . She states that she never spoke to Carter individually but, speaking to the "whole bunch" of women, she would say something like, "girls, be quiet." u The testimony of Jarman, Hollingsworth, and Foy concerning their conversations with employees, including Carter, have been described above. The foregoing comment, however, must be qualified in one respect. The day before her discharge, Jarman did tell Carter that she was talking too much and to quit talking. Although this is not a particularly pointed warning that would lead an employee to believe that her employment tenure of more than 3 years was gravely in danger, it can qualify as a warning, albeit the first one. Although the evi- dence, previously described, shows that both Carter and Jarman are in agreement that Carter complied and did not talk after Jarman told her to stop talking, Jarman returned late that same afternoon with a written warning to memo- rialize the oral warning given to Carter. As requested, Car- ter signed the written warning acknowledging that she had been ordered or warned to stop. Nirenberg testified that the giving of a written warning was not his idea and did not originate from him. According to Nirenberg, the written warning came from Jarman, who had the necessary authority to take such action and he states that she did not consult with him prior to the action. Nirenberg states, however, that he was aware of the warn- ing, presumably after it was given. He states that while he has worked for Respondent, the only written warning given to an employee was the one given to Carter the day before her discharge. In direct conflict with Nirenberg's assertions, Jarman testified that the written warning was not her idea, "it was Mr. Nirenberg's idea," and Nirenberg told her to give this written warning to Carter. I credit Jarman. Not only was she subordinate to Nirenberg in rank and function but the evidence shows that she was completely subordinate to Ni- renberg in fact and reported to Nirenberg for his direction on anything approximating disciplinary action. I am satisfied that what took place the day before Carter's discharge, the giving of a written warning to be signed by Carter, was wholly Nirenberg's idea. I believe that the written warning was not intended to serve the pur- pose of a warning, that is, to serve a corrective purpose, but to serve the purpose of bolstering the already determined upon discharge of Carter the following day. Carter was undoubtedly impressed by the serious implications of a written warning. In more than 3 years of employment, she had never received a written warning and knew of no other instance of an employee having received a written warn- ing.27 Not only was Carter given a written warning but its aura of gravity was further impressed upon her by the re- quest that she sign and acknowledge it, which she did. Carter's testimony that, after receiving the warning on De- cember 17, she did not talk thereafter on that day, nor in the 30 minutes of the morning of December 18 before she was discharged, is wholly credible and is corroborated by her uncontroverted testimony that on December 18 in Nirenberg's office, Jarman confirmed that on December 17, after the warning, Carter did not talk, and had not been seen talking on December 18. Nirenberg's generalized testi- mony that, after the written warning, Carter's "conduct was no better" and "it continued to be bad" is not convinc- ing. I find that Carter was discharged because her promi- 27 There is no evidence that anyone else had ever received a written warn- ing. Nirenberg admits that neither before nor since his tenure with Respon- dent had a written warning been given. RICHLANDS TEXTILE, INC. nence as a union adherent and supporter was manifested by her appearance at the Board hearing at the behest of the Union, a fact known by Respondent . Carter's talking pro- pensity, whether part of the general pattern of talking by employees in the plant or whether greater in degree than the same conduct by others, had existed throughout her employment. While no doubt Respondent would have pre- ferred that Carter and all its employees confined their talk- ing during working hours to work-related matters, no ac- tion or words were ever directed to Carter by Respondent that indicated that her talking was regarded as the serious dereliction that Respondent now projects in justification of the discharge . Nothing approximating a warning or a meaningful step to put a stop to Carter 's talking was taken before the afternoon of the day preceding her discharge and the circumstances of these ultimate events reveal their pretextual nature. I find a violation of Section 8(a)(1) and (3) of the Act. Leah Batchelor: Batchelor had worked for Respondent since March 1968. She worked on setting collars in the sewing department. Jarman was her immediate supervisor. Batchelor was one of the earliest union card signers, having signed a card in September 1972. In November 1973, when the union activity had accelerated, Batchelor passed out some cards to others . She worked near Carter, previously referred to, and they were friends . Batchelor was subpe- naed by the Union to attend the November 20, 1973, Board hearing and she was one of the four employees pre- sent thereat. Batchelor had shown her subpoena to Niren- berg. On December 20, 1973, service girl Hollingsworth, told Batchelor that Nirenberg "said for me to get up all my belongings and go to his office in 5 minutes ." Batchelor did so. Nirenberg said, "Leah, I've got to get rid of you; I hate to but I've got to let you go." Batchelor asked , "what have I done." Nirenberg replied , "you have been causing strain and stress among your fellow workers." He gave no further explanation . Batchelor received her check and a Christmas present and left. Batchelor, in her testimony, denied that she had caused stress or strain with other employees and denied having had trouble with others. Nirenberg, on December 20, gave her no explanation of the stress and strain she had alleged- ly caused . Batchelor also testified that she had received no warnings, reprimands, or discipline prior to her discharge. She stated that her supervisor , Jarman, had complimented her on her work as recently as 6 or 8 weeks before her discharge. This testimony is not controverted by Jarman. The discharge was on a Thursday at or about 2 p.m. The end of the workweek was, of course, Friday, and Friday was the regular payday. Respondent offers no explanation why it felt obliged to discharge this employee, almost in the middle of the day, the day before completion of the work- week. Batchelor states that she had done nothing and had received no reprimand at any time including any time proximate to December 20. Nirenberg admits that "it wasn't a case of anything happening immediately before" the discharge but he contends that it as an "accumulation of events." Nirenberg was asked: Q. What was the problem with Mrs. Batchelor that 627 led to her termination? A. The problem was that she had a disrupting or a distressing effect on the people around her. Ingram testified that he understood that Batchelor "was a disruptive influence in the operation." Batchelor had worked in Respondent's sewing depart- ment over 5 years 28 There is no claim or evidence that her work or conduct had suddenly changed in November or December 1973 from what it had been for over 5 years. It is not credible that an employee who, as Respondent as- serts at this hearing, was a "disruptive influence," causing "stress and strain" in the plant, would have been employed for so long if such was the fact or was believed to be the fact. Foy and Hollingsworth functioned as service girls to Batchelor and a group of other employees. Foy testified that Batchelor had "trouble, a lot of time top stitching or whatever . . . it seems like she couldn't get the work right part of the time." Foy states that Batchelor "needed the mechanic a lot and we did spend a lot of time . . . trying to get her machine fixed." 29 Respondent's counsel asked his witness, Foy: Q. Did you have any problem with her talking? A. Some, not as much as others. Foy testified that in her opinion Batchelor "was a good worker." The harshest and strongest thing that Foy had to say about Batchelor was that "I [Foy] would think .. . [that] she liked for you to pay a lot of attention to her." Foy admits that she never spoke to Batchelor individually about her work or any deficiencies and there is no claim or evidence from Foy that she even so much as said to Batchelor, please do this or please do not do so and so, let alone a claim or evidence of anything approximately a rep- rimand or warning. Hollingsworth testified that Batchelor "talked too much" with those around her. Other than to say to the whole group, "Girls, be quiet," Hollingsworth never spoke to Batchelor about talking. Since Hollingsworth stated that "I got along with her [Batchelor] all right," presumably, there was no "stress and strain" in this quarter. Hollings- worth stated that Batchelor did call on her for assistance a good deal in situations where Hollingsworth was not im- pressed with the need for assistance. Hollingsworth states that Batchelor "had trouble with her machine . . . always something wrong ..." and other work problems. As in the case of Foy, Hollingsworth neither claims nor is there evi- dence that she ever spoke to Batchelor about her conduct, her alleged deficiencies, her work, or anything else, and Hollingsworth never uttered a word of exhortation, repri- mand, or warning to Batchelor. 28 The record does not show how long the plant had been in operation but the Richlands Development Corporation which sold or leased the plant to Respondent and presumably had built the plant, did not come into exis= tence until the latter part of 1963 It is reasonable to assume that; since Batchelor commenced working at the plant in March 1968, that her length of service of over 5 years was not only of substantial duration but was also relatively high when compared to other employees in a plant with a fluctuat- inq complement. 9 Neither the mechanic nor records showing frequency and nature of service to Batchelor's machine appear in the record. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Jarman was Batchelor's supervisor, her testi- mony is totally silent about Batchelor or her alleged defi- ciencies, notwithstanding Nirenberg's assertion that Batchelor was a continuous disruptive influence in the de- partment supervised by Jarman. About the only reference made by Jarman regarding Batchelor is that Nirenberg told her of Batchelor's being subpenaed to the Board hear- ing. Nirenberg testified that he had seen reports that Batche- lor "was disturbing the other girls and yelling for work, work, work, work, you know, in a rude way; the machine was down [inoperative] all the time, we had a mechanic over . . . back and forth." I find the testimony incredible that an employee whose machine was allegedly down "all the time" or even if the machine was down most of the time, should be yelling for more work, which obviously she could not perform on an inoperative machine. In my opinion Batchelor was discharged because her role as a prominent union adherent was disclosed by her appearance at the Board hearing pursuant to a union sub- pena. In her more than 5 years of employment Batchelor's work and conduct had evidently been satisfactory until Re- spondent wished to rid itself of the last of the four employ- ees who had appeared at the November hearing. There is neither claim nor evidence from any witness of Respon- dent that Batchelor had even been exhorted, admonished, or warned about her work or her conduct. I find that Batchelor was discharged in violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW Respondent has violated Section 8(a)(1) of the Act by: (a) Threatening discharge of employees for talking about matters pertaining to the Union on company prem- ises. (b) Creating an impression of surveillance of union ac- tivities. (c) Threatening employees that the plant would close if the employees voted for the Union. Respondent has violated Section 8(a)(3) and (I) of the Act by discharging Juanita Williams, Gollie Williams, Eve- lyn Carter, and Leah Batchelor, because of their union ac- tivities. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action necessary to remedy the unfair labor practices and to effectuate the policies of the Act. Gollie Williams, Evelyn Carter, and Leah Batchelor are to be offered reinstatement to their former jobs, with resto- ration of their seniority and other rights and privileges, and, if such jobs are not available, to substantially equiva- lent jobs. They are to be made whole for pay lost from the date of their discharges to the date of the offers of rein- statement, less any intermediate earnings, and with interest at 6 percent on pay due. The computations are to be made on a quarterly basis. Reinstated employees are, of course, subject to the same rules and regulations after reinstatement as are all other employees. Juanita Williams, having, in my opinion, disqualified herself for reinstatement by reason of her threat to employ- ee Craft, is entitled to backpay from the date of her dis- charge to the date of the disqualification which was on or about January 16, 1974, with the computation to be made as indicated in the preceding paragraph.30 In view of Respondent's acquiescence in and tacit adop- tion and ratification of State Representative Mohn' s state- ment to employees, mailed to their homes, that Respondent's policy was to begin closing the plant if the employees voted for the Union, Respondent is directed to advise all its employees in written letters mailed to their homes, that it is not Respondent's policy to begin closing or to close its plant if the employees choose to vote for or to select the International Ladies' Garment Workers' Union or any other union as their collective-bargaining agent. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER 3t Respondent, Richlands Textile, Inc., its officers agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening discharge of employees for talking about the Union or about matters pertaining to the Union on company premises. (b) Creating an impression of surveillance of union ac- tivities. (c) Threatening employees that the plant would close if the employees voted for the International Ladies Garment Workers, AFL-CIO, Union. (d) Interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act. (a) Inform all employees in written letters mailed to their homes that it is not company policy to close the Rich- lands Textile plant if the employees vote for or select the International Ladies Garment Workers, AFL-CIO, or any other union, as their collective-bargaining agent. (b) Offer reinstatement to their former or substantially equivalent jobs, with all seniority and other rights and priv- ileges, to Gollie Williams, Evelyn Carter, and Leah Batche- lor. (c) Make whole Gollie Williams, Evelyn Carter, and Leah Batchelor for any loss of pay from the dates of their respective discharges in December 1973, to the dates of the 30 Evelyn Carter testified that the incident with Craft took place the day before the election. I credit her recollection of the date. Jt 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, he adpoted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. RICHLANDS TEXTILE, INC. 629 offer of reinstatement less any intermediate earnings, and with interest at 6 percent on the net pay that may be due. (d) Make whole Juanita Williams for any loss of pay from the date of her discharge in December 1973, to on or about January 16, 1974, as explained in the Decision under the caption of "The Remedy," and with the computation to be made as described herein. (e) Write and mail to each employee at his or her home a letter, signed by the plant manager or higher official, stating that it is not Company policy to close the Richlands Textile plant if the employees choose to vote for or select the International Ladies Garment Workers, AFL-CIO, or any other union as their collective-bargaining agent. (f) Post at its premises in Richlands, North Carolina, copies of the attached notice marked "Appendix." 32 Cop- ies of said notice, on forms provided by the Regional Di- rector, Region 11, after being signed by Respondent's rep- resentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director, Region 11, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply therewith. 32 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."