The William Carter Co., Inc.

550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The William Carter Company, Inc. and International Ladies' Garment Workers' Union, AFL-CIO. Case 10-CA-10761 tional Publishing, Inc., 207 NLRB 1054, 1055-56 (1973). ORDER June 30, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On December 9, 1975, Administrative Law Judge Richard L. Denison issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Party filed exceptions and supporting briefs. The Respondent filed a brief in support of the Administrative Law Judge's Decision and a reply brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. We adopt the Administrative Law Judge's Deci- sion in its entirety. This includes dismissal of the in- dependent 8(a)(1) allegation that Supervisor Ellen Fields coercively interrogated employee Doris Ogle- tree. Fields' conversation with Ogletree does not show the kind of interference, restraint, or coercion proscribed by Section 8(a)(1). See B. F. Goodrich Footwear Company, 201 NLRB 353 (1973). In con- text, the conversation's tone was amicable. As found by the Administrative Law Judge, when Fields said that she knew that Ogletree was distributing leaflets, Ogletree responded, "Yes, I enjoyed it." Fields then said, "You're something else." ' In all of the cases cited by our dissenting colleague the unlawful interrogations found took place against a background of other unfair labor practices which went beyond a friendly question to threats and ex- pressions of restraint, or were directed at more than a single employee. Here the Fields-Ogletree conversa- tion stands isolated in a union organizing drive of several years free of other Employer unfair labor practices and does not warrant a finding or order based thereon. American Book Division, Litton Educa- ' The dissent infers that the conversation was less than amicable because of Ogletree's discharge based on Fields' evaluation Such an inference is 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 and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. MEMBER JENKINS, dissenting in part: I disagree with my colleagues' adoption of the Ad- ministrative Law Judge's recommendation that Su- pervisor Ellen Fields' interrogation of Doris Ogletree on May 10, 1974, did not violate Section 8(a)(1) and, in any event, did not warrant a remedy. The undisputed facts indicate that on May 9, 1974, Ogletree together with another employee and a union organizer distributed union leaflets at Respondent's Barnesville plant where Ogletree saw Respondent's director of industrial relations leaving the plant. The following day, May 10, Supervisor Ellen Fields, whose supervisory responsibilities impinged directly on Ogletree's work, approached Ogletree at her worktable and asked her what she had done on her day off (the previous day). When Ogletree replied, "I was busy," Fields commented, "So I heard," adding that "I heard you was over at the Barnesville plant giving out leaflets." After further repartee the con- versation ended with Ogletree saying, "News sure travels fast." Fields replied, "It sure does." The Administrative Law Judge concluded that Fields' conduct was not coercive because Ogletree, a known union activist, had made no secret of her union sympathies and activities and that, in any event, since Respondent had not engaged in other unlawful or coercive conduct, this incident standing alone did not warrant a remedial order. While Ogletree's union sympathies and many of her activities were known to management, Fields' in- terrogation and remarks in factual context were clearly coercive. The Union had been trying to orga- nize Respondent's Forsyth plant since 1972. It had lost two elections there, the last one in February 1974. In May 1974, it was attempting to organize the Barnesville plant. During the months prior to the May 10 incident Ogletree had received several warn- ings concerning the quality of her work.2 According to the Administrative Law Judge, Fields "agreed that a certain amount of subjective judgment was in- volved" in her assessment of the work of Ogletree unwarranted since the discharge did not occur until several weeks later and 2 Ogletree was in fact discharged on June 28 as a result of these and was entirely lawful subsequent warnings 225 NLRB No. 73 THE WILLIAM CARTER COMPANY, INC and others. Fields knew from conversations with Ogletree that Ogletree was concerned about being watched by Fields and considered Fields unfair in evaluating her work. Against this background, Fields' deliberately seeking out Ogletree at her work station to let her know that Ogletree's union activities at Barnesville had been reported to her and were a matter of interest to her, and thus to management, would clearly tend to have a coercive effect. The coercion inherent in this conduct is shown by Ogletree's attempted evasion of the first of Fields' questions in the series, despite Ogletree's bravado when subsequent questions made it clear Fields al- ready knew the answers-though of course such evi- dence of specific effect is not necessary to establish the violation. There is nothing "amicable," as the majority suggests, in Ogletree's defiant response- "Yes, I enjoyed it"-to Fields' pointed advice con- cerning knowledge of Ogletree's leaflet distribution, nor in the reprimand clearly implicit in Fields' reply, "You're something else." The claim to amicability would seem subject to serious question in light of Ogletree's discharge some weeks later on the basis of Fields' evaluation of her work. The fact that Ogletree was an open union adherent and that Fields' interrogation and comments ap- peared to be made in an amiable conversational tone does not justify a different conclusion. As the Board has frequently noted, the test of whether there has been coercion does not turn on Respondent's motive, courtesy, or gentleness, or on whether the coercion succeeded or failed, but upon whether the conduct in question reasonably tends to interfere with the free exercise of employee rights under the Act. Certainly, Fields' pointed advice to Ogletree that she took note of her union leaflet distribution at Barnesville had coercive overtones and reasonably tended to inter- fere with her rights. Hanes Hosiery, Inc., 219 NLRB 338 (1975); Erie Technological Products, Inc., 218 NLRB 878 (1975); Pacific Southwest Airlines, 201 NLRB 647, 651 (1973). See also Quemetco, Inc., a subsidiary of RSR Corporation, 223 NLRB 470 (1976). Additionally, the fact that Fields' coercive conduct stands isolated does not lessen its impact or obviate the need for a remedy. In CBS Records Division of CBS, Inc., 223 NLRB 709 (1976), the Board found the single incident of a foreman seeking out two out- spoken proponents of the union for the purpose of questioning them about their union interest to be a violation of Section 8(a)(1) and provided a remedy. See also Mike Velys, Sr., Mike Velys, Jr., Ross Velys, Rose Scavelli and Zoera Hatgis, Copartners, d/b/a R & M Electric Supply Co., 200 NLRB 603 (1972). I would reach the same result here, since my col- leagues provide no reason for a different one. DECISION STATEMENT OF THE CASE 551 RICHARD L. DENISON, Administrative Law Judge: This case was heard at Forsyth, Georgia, on June 19, 24, 25, 26, and 27, 1975. The original charge was filed by the Interna- tional Ladies' Garment Workers' Union, AFL-CIO I on June 19, 1974. An amended charge was filed by the Union on July 3, 1974. The complaint, issued on May 15, 1975, alleges that The William Carter Company, Inc.,' violated Section 8(a)(1) and (3) of the National Labor Relations Act by issuing verbal and written warnings, on various speci- fied dates, to Doris Ogletree, and by discharging her on June 28, 1974. It is also alleged that Supervisor Ellen Fields interrogated employees on May 10, 1974, in violation of Section 8(a)(1). Respondent's answer, dated May 19, 1975, denies having committed the unfair labor practices alleged in the complaint. All parties were afforded a full opportu- nity to participate in the hearing. Oral argument was waived. The briefs, filed by all the parties, have been care- fully considered. Upon the entire record and from my ob- servation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION As admitted in Respondent's answer, I find Respondent is, and has been at all times material herein , a Massachu- setts corporation, with a plant located at Forsyth, Georgia, where it is engaged in the manufacture and sale of children's and women's clothing. Respondent, during the past calendar year, which period is representative of all times material herein, sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Georgia. Respondent is, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Background This case arises in the context of a lengthy and continu- ous union campaign by the Charging Party involving ef- forts to organize Respondent's Forsyth, Georgia, plant. Al- though one incident involved in this proceeding relates to union activity at the Company's Barnesville plant, only employees employed at Mill #7, Forsyth, are involved in Hereafter referred to as either the Charging Party, the Union, or the 1LGWU 2 Hereafter referred to as either the Respondent or the Company 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case. The basic facts which are essential background are not in dispute. The Union's organizing drive began in July 1972. A petition for an election among Respondent's Forsyth employees was filed in Case 10-RC-9344 on Sep- tember 11, 1972. Following a representation heanng, an election was held on December 1, 1972, pursuant to a De- cision and Direction issued November 11, 1972. The Union lost the election and filed objections which were the subject of a hearing held on March 20, 21, and 22, and April 3, 4, 5, 7, and 10, 1973. Ultimately the Board, upon consider- ation of exceptions to the Regional Director's report, over- ruled the objections and certified the results of the election on December 28, 1973. On January 4, 1974, the Union filed another petition for election in Case 10-RC-9863. A Stipu- lation for Certification Upon Consent Election was execu- ted by the parties on January 25, 1974, and approved Janu- ary 28. The Petitioner lost the election held February 15, 1974. The results were certified February 26, 1974. B. Respondent's Efforts to Improve Quality at Mill #7 and a Description of Its Inspection Procedures Respondent manufactures a premier line of children's garments with an emphasis on sleepwear . It is undisputed that a major selling point in the Company's advertising program has been and is the superior quality of Respondent's products . According to the uncontradicted and credited testimony of Oliver P. Beckworth, director of research and development , he has been personally ac- quainted with the Company's efforts to maintain and im- prove quality since he was first employed as a consultant by Carter in 1955 to survey the Company 's quality control practices and formulate recommendations for improve- ment. Carter's success in its field is reflected in the tremen- dous increase in its volume of business-from between $5 to $10 million in 1930 to a present volume of $100 million. Since 1967 Beckworth has been permanently employed by the Company as director of research with the added re- sponsibility of serving as the corporate head of the quality control program. In this latter capacity , Beckworth con- sulted Tom Roberts, vice president of manufacturing, in September 1972 concerning "a very high level of product which was defective" at Mill #7 in Forsyth, Georgia. The quarterly report from Mill #7 for the second quarter of 1972 revealed that 6 .91 percent of the garments overin- spected were defective , representing an increase in defects of over 2 percent since the end of the third quarter of 1971. This report also revealed an increase in seconds from 3.75 percent in the third quarter of 1971 to 5.92 percent. Following Beckworth 's conference with Roberts, Re- spondent initiated a program to improve quality at Mill #7. The initial step involved changes in mill supervision. Larry Martin, a longtime Carter employee, who had pro- gressed through the ranks in its Barnesville plant, became production superintendent on October 16. Harold Tysinger replaced George Sheriff as plant manager in late Septem- ber. Roberts confided to Martin that these changes had been made because in his view poor management had caused lax discipline and "a tremendous quality problem in the Forsyth plant." Roberts instructed Martin to work closely with Tysinger , who was new with the Company, "in setting up policies and programs to instill discipline and quality performance out of that plant." However, Respondent's quarterly reports for the remainder of 1972 and early 1973 revealed little if any improvement in quality at Mill #7. Management diagnosed the chief problem to be poor inspection, particularly in department 4. Thus in June 1973 Ellen Fields, quality control supervisor, was also appointed supervisor over the inspect and fold operation at plant 7.3 At this time the plant departmental structure was reorganized. Departments 1 and 3 became department 1, departments 2 and 4 became department 2, and depart- ments 5 and 6 became department 3. On July 16 Martin replaced Tysinger as plant manager, and Tommy Black- man became superintendent. In early 1973 the Company instituted an "Inspector Per- formance Control Policy" which was revised into its final form on August 20, 1973.4 The importance of this policy, upon which Respondent bases its explanation for Ogletree's discharge, warrants its reproduction in full at this point. INSPECTOR PERFORMANCE CONTROL POLICY The production of high quality garments is a Carter's reputation of which we can all be proud. To continue this reputation, certain standards must be maintained and certain procedures and policys fol- lowed. 1. Determining Inspectors producing poor quality. A. It will be determined that an inspector is pro- ducing poor quality when the inspector is found to have an excess of 5% of obvious majors at overinspect for a 2 week period. II. Definition of obvious majors and non-obvious ma- jors. A. An obvious major is defined as a major defect that is located in an area of the product that is includ- ed in the rate for the Inspector to inspect and can so be detected. 1. The Methods Supervisor and the Quality Super- visor will determine, with the approval of the Plant Manager, what areas of the garment must meet cer- tain standards and what motions and time is needed in the rate to meet these standards and issue a write- up as each new style is adapted. K-tags, Carter la- bels, Joker labels and Fire Retardent numbers will be included in the Inspect rate and charged as ob- vious majors. 2. Failure of an inspector to list her clock number on the Shop order ticket will be considered a very serious offense and the operator will be given a ver- 3 It is admitted that Fields is, and has been, at all times material herein, a supervisor within the meaning of the Act, and I so find since her duties, as described in her testimony, include indicia of supervisory status described in Sec 2(1 1) of the Act 4 In its early version, the policy held inspectors to a standard of no more than 4 percent major defects Experience during the interim period of 1973 indicated this standard was too strict and the August 20 revision set a 5- percent standard This finding is based on credited testimony by Martin and Fields as corroborated by Doris Ogletree, who testified that she observed the policy posted on the bulletin board about August 20. THE WILLIAM CARTER COMPANY , INC. 553 bal warning and followed up according to the disci- plinary Policy. B. A non-obvious major is defined as a major defect that is located in an area of the product that is not included in the rate for the Inspector to inspect and can only be detected by turning the garment to the reverse side (inside) of the garment or some other mo- tion or eye travel that is not included in the Inspectors rate. III. Follow-up procedure for Inspectors producing poor quality garments. A. Verbal Warning ( 1st step) A verbal warning will be given to the inspector by her immediate supervisor and the quality Supervisor when the inspector has been excessive for any two (2) week period . The in- spector will be summoned to conference with the qual- ity Supervisor and her immediate Supervisor . The in- spectors quality problem will be discussed to include the following: 1. Any problem the inspector might be having as to proper inspection methods or the possibility of needing eye glasses. 2. To assure the inspector fully understands the ser- iousness of producing poor quality garments and also understands the Follow -up procedure for poor quality Inspectors. 3. To assure the inspector she will be given personal attention for the next two week period in trying to improve her quality performance. B. Written Warning (2nd step) If at the end of the two week period the verbal warning is given to the inspector, the inspector is found to have excessive poor quality (5.0%) the inspector will be given a writ- ten warning by the Quality Supervisor. C. Written Warning (3rd step) If at the end of the next two week period , the inspector is found to have excessive poor quality (5%) the inspector will be given a written warning by the Plant Manager and suspend- ed for up to three days . The inspector will be informed that when she returns to work she will be given two (2) weeks to show improvement in her quality perfor- mance. D. Written Warning (4th step) Upon returning to work, if the inspector's quality is excessive for a two (2) week period, she will be given a third written warn- ing for poor quality performance and possibly termi- nated. E. Repeated Excessiveness If an inspector shows improvement for only 1 two week period the next step in the Follow -up procedure will be taken when she is excessive. If the inspector has improved to an acceptable level for two consecutive two week periods , the inspector will start at the first step the next time the Inspector is excessive. Under no circumstances will an Inspector be al- lowed more than three written warnings for poor qual- ity in a twelve month period. IV. Selection of Garments to be over-inspected. A. Random Inspector Sampling 1. The clock numbers of all inspectors will be kept in a box at overinspect and as each overinspector finishes an order she will: 2. Pick up the box containing all inspector num- bers, shake it vigorously and holding above eye level select a number from the box. 3. After selection she will return the inspector's number to the box so that all of the inspector num- bers will be back in the box for the next selection. 4. The overinspector may select an order from the inspectors table, case or hanging rack. 5. The overinspector will only turn one of twelve garments. NOTE : For random selection all numbers must be in the box each time a number is selected so that every inspector has an equal chance of being selected each time a number is drawn from the box. V. A written report will be published every two weeks on the quality performance of each inspector as to the: 1. Number of garments overinspected for each in- spector. 2. Number and per cent of obvious majors for each inspector. 3. Number and per cent of non-obvious majors for each inspector. 4. An inspector not overinspected during a two week period will be considered a good period. 5. If only 12 garments are overinspected in a two week period it will not count and will be indicated in parenthesis by the inspector 's name. The crucial phase of Respondent's quality control pro- gram in its maufacturing operations at Mill #7 is the in- spection process-a two-step procedure for insuring that only a minimum of defective garments are shipped to cus- tomers. From the sewing department finished garments proceed to the inspectors in bundles of 12 each tagged with a master ticket . The inspector inspects each garment fol- lowing a set procedure called a "breakdown," devised by the methods department and taught to each inspector in training sessions upon the institution of a new style. At these training sessions , inspectors are also informed con- cerning which specific portions of the garment must re- ceive individual attention . After inspecting a bundle, the inspector folds and packs the garments in a box , and cuts the pay stub from the master ticket . The pay stubs on the orders determine an inspector's base pay, and piecework earning the remainder of the wages they receive . Rejected garments are tagged , rejected, and returned to the sewing department. Thereafter, employees called overinspectors spot check the work of the inspectors by reinspecting 2 per cent of all outgoing garments . The overinspector draws an inspector's clock number by chance from a box and pro- ceeds to the inspection department and selects one of the inspector's orders at random . Overinspectors are generally instructed to try to select garments from an order presently 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being inspected, but to act contrary to any requests by the inspector to inspect a specific order.' The overinspector reinspects each garment in one bundle. Any defective gar- ments are left unfolded on top of the bundle with a red arrow sticker pointing to each defect. Quality Control Su- pervisor Fields examines the defective garments and, remi- niscent of the function of a referee, makes a decision whether each defect is minor, an "obvious major," or "non-obvious major" within the meaning of the Inspector Performance Control Policy. These decisions are only par- tially subjective since "obvious majors" are called only concerning inspection points on the garment listed break- down, for which inspectors are told they will be responsible in the training session on that style. If in doubt, Fields checks the breakdown before making a call. If the overin- spector discovers two majors in the first dozen, two addi- tional dozens are overinspected. If further major defects are found, the overinspection process may be repeated. The defective garments are shown to the inspector, tagged, and returned to the operator responsible via the sewing department supervisor. If there is a disagreement between Fields and the inspector concerning her decision that a defect is major, the inspector may challenge the call. In such instances, the plant manager may, if disagreement persists, make the final decision. C. Doris Ogletree's Work Record and Union Activity Summarized, and the Contentions of the Parties Dons Ogletree began work for the Company in August 1969 as an inspector and worked in that capacity at the Forsyth plant until her discharge on June 28, 1974. Origi- nally she was assigned to department 4, which later became a part of department 2 during the June 1973 reorganiza- tion. Her credited testimony clearly shows, and Respon- dent freely acknowledges, that from the outset of the Union's organizing drive Ogletree was one of the leading employee advocates in the plant for the ILGWU. As such she was named as 1 of 46 employees on the Union's com- mittee in a telegram sent to Respondent on September 20, 1972, and posted on the plant bulletin board shortly there- after.7 Ogletree attended union meetings, sponsored union meetings at her home, and testified as a witness in the rep- resentation hearing in Case 10-RC-9344 on October 3 and 4, 1972, and the subsequent objections hearing in March and April 1973. She also served as an observer in the first election. In the 1974 campaign, Case 10-RC-9863, she so- licited card signatures, wore union stickers on her car and union pins on her clothing in the plant, and attended the scheduled hearing which was resolved without testimony by means of a stipulated consent agreement. Furthermore, without an unnecessary itemization of each incident, the record clearly shows, from the testimony of both General Counsel's and Respondent's witnesses, that Ogletree was 5 At times garments may also be selected from the bagging area or from the packing cases 6 In a credited portion of her testimony, Fields gave examples of success- ful challenges by Dons Ogletree and other employees, including at least one other employee named in the Union's September 20, 1972, telegram to the Company identifying organizing committee members i In this telegram her last name is misspelled "Goletree " among the most outspoken and persistent of the Union's adherents. Ogletree's testimony contained no significant variance from that of Respondent's witnesses concerning the ap- proximate dates and the number of warnings she received prior to her termination. She conceded that her quality had been poor and that she found it necessary to slow down in order to improve. Her quality record is not con- tested, and is contained in copies of the bi-weekly inspector performance reports, in evidence as Respondent's Exhibits 39 through 60, succinctly summarized by Respondent's Ex- hibit 38 as follows:' Quality Date Garments Majors % Defective Remarks 1973 9- 1 36 3 8.3 Verbal 9-15 48 1 2.1 9-29 84 4 4.8 10-13 108 8 7.4 Verbal 10-27 36 0 0 11-10 78 5 Obv. I Nonobv. 6.4 1st writ. 11-24 36 0 0 12- 8 48 1 2.1 12-22 60 2 3.3 1974 1- 5 36 2 5.6 Verbal 1-19 120 8 6.7 2d writ. 2- 2 168 5 Obv. 1 Nonobv. 3.0 2-16 84 I Obv. 1 Nonobv 1 2 3- 2 96 4 4.2 3-16 108 5 Obv. 1 Nonobv. 4.6 3-30 72 I 1.4 4-13 84 3 3.6 4-27 36 1 2.8 5-11 72 4 5.6 Verbal 5-25 144 9 6.3 3d writ. & susp. 6- 8 36 6 16.7 6-22 60 4 1 Nonobv. 6.6 Total since policy was adopted 1650 Garments 77 Obvious majors 5 Non obvious majors 4.7% 4.9% Thus, after having accumulated three written warnings within a year for exceeding the quality standard of 5 per- cent, the maximum permitted by the policy, Ogletree was discharged on June 28 for poor quality performance after 8 The written warnings are in evidence as Resp Exhs 9, 12, and 24 The dates on these warning slips reflect when the warning was actually given, rather than the ending date of each 2-week performance period for which the warning was given as set forth on Resp Exh 38 and in the complaint THE WILLIAM CARTER COMPANY, INC. 555 having been excessive once again. General Counsel and the Charging Party contend, however, that Ogletree was dis- charged because of her open and aggressive adherence to the union cause. The chief arguments advanced in support of their position are: (1) Respondent tightened its quality policy after the first election and maneuvered Ogletree into the series of warnings and her ultimate discharge through Fields calling "majors" on Ogletree which were not called against others; (2) Ogletree was constantly watched and her movements documented. On one occasion Fields told her she was being watched, and interrogated her about her union activities at Barnesville; (3) Ogletree was told she was a good inspector, and offered a promotion to supervi- sor; and (4) the discharge of Ogletree occurred shortly after she had filed a charge with the Equal Opportunity Employ- ment Commission, and the circumstances surrounding her termination show that Respondent departed from the poli- cy which is the cornerstone of its defense that Ogletree was treated nondiscriminately. D. The Alleged Discriminate Enforcement of Respondent's Inspector Performance Control Policy The record shows that Respondent installed a new In- spector Performance Control Policy in early 1973, which was later revised in August 1973. The evidence also shows that the decision that quality improvement was needed at Forsyth did occur shortly after the outset of the union campaign. There is no allegation in the complaint, howev- er, that Respondent's policy was installed for the purpose of eliminating union adherents, and there is an abundance of uncontradicted statistical evidence, in the form of Respondent's quarterly quality summaries, which confirms the existence of a quality problem at Mill #7 during this period traceable to poor sewing and inspection. Moreover, it was established that during the August revision the poli- cy was liberalized from a standard of 4 percent permissible defects to a maximum of 5 percent, a change inconsistent with an intent limited to weeding out employees for purely discriminatory reasons. It is argued, however, that the poli- cy was more stringently applied following the first election and was utilized in a discriminatory fashion, through Fields' subjective decisions that certain defects found dur- ing overinspection of Ogletree's garments were "majors" while the same defects in other employees' garments were minor. In her testimony Ogletree estimated that on eight or nine occasions since the installation of the policy Fields made such disparate calls.' Ogletree testified this change occurred right after the first election, which timing would coincide with the installation of Respondent's Inspector Performance Control Policy. Ogletree could remember the circumstances of only three of these incidents. About 2 months before her suspension, Ogletree observed that both she and Annette Lucear had failed to reject misprints.1° Ogletree's misprint was on the side of the garment, while Lucear's was on the front. Ogletree was given a "major" while Lucear received a "minor." On two other occasions, Fields called majors against Ogletree, but not against Dons Gant for similar infractions. According to Ogletree, one such incident about 6 weeks prior to her suspension in- volved "a tiny hole" in the garments, and the other inci- dent, which occurred after her suspension, concerned de- fective smocking. Annette Lucear, also a union committee person listed on the September 20, 1972, telegram with Ogletree and Gant, testified that after the first election cer- tain defects began to be counted as majors which had been minors before, particularly soiled spots and defects in smocking. Lucear remembered having a misprint in the center of a garment, during April 1974, which Fields changed from a major to a minor after Lucear challenged the decision.) t In May, prior to her suspension, Ogletree received a major for failing to reject a garment misprinted near the right seam. Martin and Fields testified that one of the quality problems they encountered was that smocking defects were being ignored. In early 1972 it was decided to charge smocking defects discovered in overinspection to the inspectors as obvious majors. However, in April or May 1973, Fields persuaded Tysinger to call defective smocking sewn with light thread a nonobvious major, not penalized under the policy, since dark-colored threads are much easier to see than light thread. Fields denied discrim- inating against any individual employee or with regard to union activity in her decisions concerning majors and mi- nors, but agreed that a certain amount of subjective judg- ment was involved in assessing whether or not a given de- fect was major. Fields could not remember the smocking major Ogletree claimed was charged against her and not against Gant, but did recall the misprint incident involving Ogletree and Lucear. Fields stated that the garment in question was a plaid nightshirt in which the print was com- pletely missing from the garment, therefore obvious. Fields' testimony in this respect is unrebutted. After having carefully considered all the evidence offered on this issue, I find and conclude that the General Counsel has failed to prove that Respondent discriminately enforced its policy with respect to Doris Ogletree or that Respondent discrimi- nately issued warnings to her on January 5 and 19, and on May 11 and 25, 1974, as alleged in paragraph 7 of the complaint. E. A Summary of Other Evidence Offered in Support of the Alleged Discriminatory Discharge of Ogletree, With Appropriate Credibility Findings 9 During May 1973, according to Ogletree, a group of "union committee girls," including herself, Barbara Jordan, Barbara Jones, Dons Gant, An- nette Lucear, and Gracie Robertson, went to Tysmger and complained, in Fields' presence, about Fields calling minors majors A heated discussion between the inspectors and Fields ensued Fields also related this incident in her testimony, describing how in this conference she explained the opera- tion of the policy in detail There is no substantial conflicts in their versions or that of Annette Lucear, except that Fields' version is more detailed In any event, Fields agreed that in this conference she said Ogletree was a pretty good inspector, the next best in the department to Barbara Jordan " In conjunction with the above-summarized evidence concerning Fields' allegedly discriminate decisions on ma- jors assigned to Ogletree, the General Counsel relies heavi- 10 A misprint is a blur or some type of defective printing on the fabric 11 At one point Ogletree testified that she was not informed she could challenge Fields' decisions under the policy Later she revised her testimony to the effect that although she knew of the challenge procedure she did not utilize it because in her opinion it was futile to do so 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly, as proof of the unlawful motivation behind Ogletree's discharge, on the following events. Ogletree testified in De- cember 1972, following the first election, she asked Fields, "Ellen, why is it every time-everywhere I go somebody is watching me?" She stated Fields answered, "Well, Davis, you're a leader like I am," and Ogletree asked what she meant "because of the union?" Fields replied, "That and more." Ogletree then said, "Well, I don't like being watched. I'm dust a regular human being," to which Fields responded, "Well, you are being watched." 12 In 1974, after Lucear and Ogletree had transferred to department #1, Fields came to Ogletree and remarked that she had been having a lot of visitors at her work table that morning. Ogletree asked how Fields knew since Fields had been in the office all morning. Fields said, "Well, you know, you're always being watched." Ogletree retorted that she didn't like it, and Fields answered "I can't help it, that's the way it is-you're being watched." Ogletree also testified in May 1973 that Martin came to Ogletree's work station and said, "Davis, you're having a lot of visitors today coming by your table." Ogletree an- swered, "Where is their supervisor? We have to stay in our work area. Where is [sic] their supervisors?" Then Martin said, "Well, you're having a lot of visitors coming by and you're being watched. I noticed they're coming by your table." Later, according to Ogletree and Lucear, Lucear called Ogletree's attention to Martin peering at her through the blinds of his office. Shortly thereafter, when Lucear went to Martin's office to challenge one-of Fields' calls of a major against her, Martin explained that his job as plant manager required him to watch over the entire plant and he told Ogletree that he wasn't looking at her. 13 Martin denied watching Ogletree, but testified that on several oc- 12 In another portion of her testimony Ogletree repeated this conversation with embellishments, including testimony that Annette Lucear was present during a part of the discussion , and that the conversation occurred in De- cember 1973 Lucear testified only that she overheard a part of the conversation in which Fields said, "You're being watched by a lot of people," and "some- thing about a union leader " However, in her December 1973 statement to the Board agent she claimed to have heard Fields say, "How do you make production when you are visited by so many people," and "I heard her say something about Doris being a leader " Fields denied having such a conver- sation Because of the inconsistencies and alterations in their testimonies, I do not credit Ogletree and Lucear I credit Fields Doris Ogletree impressed me as a sincere and passionately devoted advo- cate of the Union's cause and the cause of fairness to her fellow employees I have no doubt that Ogletree believed she was telling the precise truth throughout her lengthy testimony However it is clear, from a careful read- ing of the record and from her demeanor, that her emotions strongly affect- ed her thought processes, frequently causing her to embellish and exagger- ate in these circumstances her feelings gave rise to inferences in her mind which in turn crystallized into actual events At other times her beliefs were transposed into words injected into or added to actual conversations Thus, when jolted by the press of cross-examination, Ogletree frequently retreated on important phases of her testimony-one example of which was her cross- examination testimony about whether Fields picked on her in calling ma- jors Because of her distinct tendency to exaggerate and embellish her testi- mony, I do not credit Ogletree's testimony where it is disputed, except as specifically indicated Annette Lucear impressed me as a witness strongly influenced by a desire to assist Ogletree , her fellow union associate The testimony of Martin and Fields was generally more precise and detailed than that of Ogletree and Lucear At certain points they openly testified concerning events which less candid witnesses would simply have denied Much of their testimony is corroborated by exhibits consisting of records and notations I credit the testimony of Martin and Fields except where otherwise indicated casions in the course of observing the day-to-day opera- tions of the plant he noticed employees talking to Ogletree or Ogletree looking around not paying attention to her work. The only time Martin said anything to her about this was in mid-April when he said, "Davis, I don't see how you could possibly be making production today at the pace you're working and not observing your work." Fields testified that her job duties require her to move around the work area observing what transpires, but that she did not observe Ogletree's actions more than she ob- served the other inspectors. Fields denied telling Ogletree she was being watched, and stated that when at times Ogle- tree asked her why she was being watched, Fields replied, "I don't watch you anymore than I watch any other inspec- tor." Fields stated that she did ask Ogletree if it would help her work if Ogletree's frequent visitors were asked to leave. 14 On or about May 9, a nonworking day, Ogletree accom- panied Union Representative Milford Allen (and an em- ployee identified only as Mary) to the Barnesville plant where they distributed leaflets. While there they observed Vester Butler, the director of industrial relations, leaving the plant. The following day Ogletree was approached by Fields who asked, "What did you do on your day off?" When Ogletree answered she was busy, Fields responded, "So I heard. What did you do? I heard you was over at the Barnesville plant giving out leaflets." Ogletree said, "Yes, I enjoyed it." Fields said, "Doris, you're something else." Ogletree retorted, "News sure travels fast," and Fields end- ed the conversation by answering, "It sure does." 15 I find that Fields' conduct here did not violate Section 8(a)(1) of the Act since it did not constitute interference, restraint, or coercion when considered in the total context of Ogletree's openness with management about her union sympathies and activities, including many such conversations with Fields, Martin, and Rolnick. Furthermore, the sum total of the facts does not reveal other unlawful or coercive con- duct and consequently this incident stands alone. Under these circumstances Fields' interrogation of Ogletree is of such an insufficient degree that a remedy is not warranted. La-Z-Boy South, Inc., 212 NLRB 295 (1974). It will be rec- ommended that this allegation, which comprises paragraph 7 of the complaint, be dismissed. Neither do I find that this conversation supports the contention that Ogletree was being watched, since it is evident from Ogletree's testimony that the encounter with Butler was coincidental. In this connection I note that the complaint does not allege that Ogletree's union activities were under surveillance, or that Fields threatened Ogletree by attempting to create that im- pression. Finally, the General Counsel argues that his contention that Ogletree was constantly watched in order to build a 13 Lucear also testified that Ogletree complained to Fields that Martin was looking at her legs, and consequently she had put on pants 14 1 credit Martin and Fields' versions of the "watching" conversations These conversations have one consistent theme referred to by all witnesses, that Ogletree was being interrupted by a lot of visitors to her work station I find that this was the real topic of these conversations , and that Ogletree concluded she was being told she was being watched 15 Annette Lucear testified that she overheard this conversation as Ogle- tree related it Fields did not deny the incident I find that it occurred as related by Ogletree THE WILLIAM CARTER COMPANY, INC. 557 discharge case against her, is further confirmed by docu- mentary evidence consisting of approximately 20 notebook entries written by Fields about incidents involving Ogle- tree. Fields testified that she had been instructed by labor counsel Rolnick and by Martin "to keep notes on any- thing, any person that questioned our policies or rules or anything unusual, and I did so." She testified that this note taking began following the April 1973 hearing on objec- tions. 6 Martin testified that following the April hearing he noticed known union adherents, including Ogletree, taking notes of various incidents, and that he instructed his super- visors that if a union adherent made a note, they were also to make a note. Under these circumstances, considering Ogletree's frequent accusations that Fields was being un- fair in her day-to-day decisions and considering Fields' vulnerability to accusations of 8(a)(1) conduct in her many day-to-day conversations alone with employees during the extended period in question, I do not infer that Fields' notebook is evidence that Ogletree was being singled out for special watching. According to Ogletree, in the fall of 1972, about 3 or 4 weeks before the December 1 election, labor counsel Rol- nick approached her at her work table and offered her a supervisor's job. No one else was present . Ogletree said, "Well, I'll think about it." No follow-up to this brief con- versation occurred until January 4, 1974, shortly before the second election on February 15. As Rolnick was passing through the plant Ogletree commented, in the presence of Annette Lucear, that he was not talking to any of the black people. Rolnick protested, "Oh, Doris, you know me better than that," and invited Ogletree and Lucear to leave their work and talk with him in Blackman's office. In the office Ogletree complained about the manner in which Fields was calling majors, and Rolnick attempted to defend Fields and to rebut Ogletree's insinuation that he was racially prejudiced. At the end of this conversation, as the two em- ployees got up to leave and Rolnick was opening the door, he said, "Doris, you know before the last election I offered you a supervisor's job. I wish you would consider it now." At this point the subject of the Union was mentioned for the first time in the conversation, which had continued for over an hour. Ogletree pointed to her union pin and said, "As long as the union doesn't lie to me I will be for it, but if it lies to me, then and only then will I be for the compa- ny." 17 I do not attach the significance to this incident attri- buted to it by the Charging Party and the General Counsel. Whatever suspicion this event creates concerning Ogletree's discharge 5 months later is largely dissipated by 16 It is clear from Resp Exhs 17 and 19, and G C Exh 16 that Fields ke?t some notes on other employees Rolnick did not testify concerning this incident, but stipulated that the conversation occurred on January 4, 1974 From the tenor of his questions, and from Lucear's testimony, on cross-examination it is clear that all partic- ipants agree that the major portion of the conversation dealt with Fields' alleged partiality in calling majors and the assertion that Rolnick had ig- nored black employees during his rounds of the plant Rolnick did not examine either Ogletree or Lucear about the portion of their conversation in which it is claimed that he offered Ogletree a supervisor 's job The only testimony from Respondent on this point is Martin's, who was not present, to the effect that Rolnick never mentioned such an offer to him Thus Ogletree and Lucear's testimony about this conversation , undenied , is cred- ited an examination of her performance record. As of the date of her conversation with Rolnick , Ogletree's percentage de- fective for the preceding three 2-week periods (as shown on Resp. Exh. 38) was 0, 2.1, and 3.3 percent, and the series of warnings which resulted in her discharge all occurred after this incident. It is vigorously argued that the unlawful motive behind Ogletree's discharge is confirmed by Respondent's depar- ture from its policy in its haste to eliminate Ogletree after she filed charges, alleging racial and sex discrimination, against Respondent on May 31, 1974. This contention is based in part on Martin's testimony on cross-examination that prior to discharging Ogletree he and Butler reviewed a summary of Ogletree's performance record (Resp. Exh. 38), which showed that for the entire period from Septem- ber 1, 1973, to June 22, 1974, Ogletree's overall percentage of obvious major defects was 4.7 percent, below the 5-per- cent standard set by the policy. It is also urged that the Company's policy provides that following the third-step written warning and suspension the inspector will have "2 weeks to show improvement," and Ogletree was not afford- ed a full 2 weeks since undisputed evidence shows she was absent for sickness during a substantial portion of the next 2-week performance period. After a careful examination of the entire policy and the evidence summarized above, I find that the General Counsel and the Charging Party base their arguments concerning this aspect of the case on a misconstruction of the policy's operation and administra- tion. It is undisputed that the policy operates on a system of 2-week periods at the end of which all inspectors' perfor- mance statistics for that period are posted, and those are "excessive" whose percentage of obvious majors discov- ered by ovennspection is over 5 percent for that period. The warning system contained in the Company's policy clearly operates on the basis of the same 2-week periods. It does appear that in evaluating the mill's overall performance higher management considers an average of 4 percent the "mill standard," but there is no evidence that Doris Ogle- tree or any other individual employee was held accounta- ble for meeting any standard other than the 5-percent bi- weekly period standard. The evidence also shows that an inspector's work is chosen for overinspection by lot which always results in some inspectors being overinspected more than others during any given 2-week period. Under these circumstances, inspectors' performance must be evaluated on the basis of whatever work happened to be overinspect- ed during that period. Likewise where absences occur and the inspector returns to work during the same biweekly period in which she was absent, performance for that pen- od is based on whatever work produced, in excess of 12 garments, was chosen for overinspection by the luck of the draw. Since there is no evidence that Ogletree's work was selected for overinspection in any manner different from the lottery system utilized to select the work of others, or that others who had been absent were treated differently, the contention that Respondent departed from its policy in these respects fails. 18 is The 2-week period in which an employee was on suspension is not counted as a performance period Moreover , as pointed out by Martin in his testimony, the operation of the policy on a basis that an employee would Contin ued 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally it is urged that the timing of Ogletree's termina- tion, soon after filing the EEOC charge, and all of the inci- dents leading up to her release , as discussed herein, prove a pattern formulated to rid Respondent of its most trouble- some union activist . I find that the record as a whole does not support such a finding. It is well established that the burden of proving unlawful discrimination within the meaning of the statute is on the General Counsel. In my view, he has not sustained this burden. In the final analysis, what the General Counsel and the Charging Party have attempted to do is establish a violation of the Act with respect to Ogletree's discharge by linking inferences and innuendos. Obviously, the offer of a supervisory position in previous months and the timing of Ogletree's discharge and receipt of certain warnings , considered against the background of her aggressive advocacy of the Union and the viewpoint of her fellow employees , created consider- able suspicion, from the Charging Party's viewpoint, that she was the victim of discriminatory action. Nevertheless, these suspicions are not a substitute for proof . A case con- structed by piling inference upon inference collapses of its own weight when overextended, as here . Moreover, Re- spondent offered unrebutted evidence that it has adminis- tered its Inspector Performance Control Policy in a nondis- criminatory manner with respect to its other employees, including known union adherents . Only one such example from numerous examples cited is the work history of An- nette Lucear, a close colleague of Ogletree 's, who was re- tained by the Company when her performance reached an have 2 full calendar weeks following a warning or suspension to improve, rather than the next 2-week period , would destroy the system of comparison involved in posting biweekly inspector performance reports, since some in- spectors would be working on a different evaluation period from the others Thus, the Respondent's interpretation of the words "two (2) weeks" in sec C of the policy is the only logical interpretation consistent with the estab- lished manner in which the policy operates acceptable level after having received a third-step suspen- sion. Although such evidence is not controlling, when viewed in terms of the total fabric of the circumstances in which Ogletree's discharge arose, it does lend support to Respondent's position that Doris Ogletree was discharged only because she failed to perform in her work according to the requirements of Respondent's quality control pro- gram, and not because of her union or concerted activities. I so find. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(a)(1) and (3) of the Act in issuing warnings to and in discharging Dons Ogletree as alleged in the complaint. 4. Respondent did not violate Section 8(a)(1) of the Act through its supervisor and agent Ellen Fields' interrogation of Doris Ogletree on or about May 10, 1974. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER19 The complaint is dismissed in its entirety. 19 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes