Virginia Apparel Corporation

VIRGINIA APPAREL CORP. Virginia Apparel Corporation and Amalgamated Clothing and Textile Workers Union, AFL- CIO-CLC. Case 5-CA-13210 September 28, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On June 28, 1982, Administrative Law Judge Marvin Roth issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in response to the 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, 2 as modified herein. 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 modi- fied below, and hereby orders that the Respondent, Virginia Apparel Corporation, Rocky Mount, Vir- ginia, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer Anne Sledd immediate and full rein- statement to her former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for losses she suffered by reason of the dis- crimination against her as set forth in the section of this Decision entitled 'The Remedy."' 2. Substitute the following for paragraph 2(d): "(d) Post at its Rocky Mount, Virginia, place of business copies of the attached notice marked "Ap- pendix." Copies of said notice, on forms provided I The Respondent his. excepted to certain credibility findings made bh the Administrative La" Judge It is the Board's established policy not to overrule an administtatise la" judges resolutions with respect to credi- bility unless the clear preponderance of all of the relcant csidence con- vinccs us that the resolutions are incorrect Standard Dry iall Products. Inc. 91 NL RB 544 (19501. enfd 188 F2d 362 (3d Cir 1951) We have carefull) examined the record and find no basis for reversing his findings z In accordance siith hi, d.isient in Olritpic .fI'dical? Corporauon., 250 NLRB i4h (198)I. Mnember Jenkirns wouldl ;asa;rd titcrest on the backpa) due hased on the formula set fiorth ihcrein by the Regional Director for Region 5, after being duly signed by Respondent's authorized representa- tive, shall be posted by Respondent 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. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT discourage membership in Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC, or any other labor organization, by discriminatorily terminating employees or in any other manner discriminat- ing against employees with regard to their hire or tenure of employment or any term or con- dition of employment. WE WILL NOT threaten employees with plant closure or sale or loss of jobs if they des- ignate or select said Union, or any other labor organization, as their bargaining representa- tive. WE WII.L NOT interrogate employees con- cerning meetings or other union activities. WE WILL NOT create the impression of sur- veillance of union meetings or other employee union activity by telling employees about re- ports we received concerning such activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them under Section 7 of the Act. WE wiLL offer Anne Sledd immediate and full reinstatement to her former job or, if such job no longer exists, to a substantially equiva- lent position, without prejudice to her senior- ity or other rights and privileges previously enjoyed, and make her whole for losses she suffered by reason of the discrimination against her, with interest. 264 NLRB No. 30 207 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL expunge from our files any refer- ence to the discharge of Anne Sledd on March 26, 1981, and notify her in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against her. All our employees are free to become or remain, or refuse to become or remain, mem- bers of Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC, or any other labor organization. VIRGINIA APPAREL CORPORATION DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge: This case was heard in Roanoke, Virginia, on February 22 and 23, 1982. The charge was filed on April 6, 1981, by Amalga- mated Clothing and Textile Workers Union, AFL-CIO- CLC (herein called the Union). The complaint, which issued on May 13, 1981, and was amended on February 8, 1982, and at the hearing, alleges that Virginia Apparel Corporation (herein called the Company or Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). The gravamen of the complaint is that the Company alleged- ly discharged employee Anne Sledd because of her union activities, and further violated Section 8(a)(1) by interro- gating, threatening, and creating the impression of sur- veillance of union activities. The Company's answer denies the commission of the alleged unfair labor prac- tices. All parties were afforded full opportunity to par- ticipate, to present relevant evidence, to argue orally, and to file briefs. Upon the entire record in this case' and from my ob- servation of the demeanor of the witnesses, and having considered the arguments of counsel and the briefs sub- mitted by the General Counsel and the Company, I make the following: FINDINGS 01- FACT 1, THE BUSINESS OF RESPONDENT The Company, a Virginia corporation, is engaged in the manufacture, sale, and distribution of outer garments and apparel at its Rocky Mount, Virginia, plant. In the operation of its business, the Company annually ships goods valued in excess of $50,000 from its plant directly to points outside of Virginia. I find, as the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE L ABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. I The General Counsel's unopposed motion to correct transcript is hereby granted except with respect to p. 212. (The prior questioning by the General Counscl was voir dire.) Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's Organizational Campaign, Company Knowledge of Union Activity, and Alleged Interrogation, Threats, and the Creation of the Impression of Surveillance of Union Activity In early March 1981,2 the Union commenced an orga- nizational campaign at the Company's plant. The Union distributed literature and showing-of-interest forms at the plant and at other plants in the Rocky Mount area; and this activity immediately came to the Company's atten- tion. In mid-March, employee Anne Sledd informed the Union of her interest in unionization, and that she wished to participate in the campaign. Sledd discussed the cam- paign with her fellow employees. On March 24, union organizer Bob Freeman asked Sledd to inform the em- ployees of a meeting which was scheduled for the eve- ning of March 26 in Martinsville, Virginia. Sledd agreed to do so, and, on March 25 and 26, she spoke to some 15 to 20 employees. Early in the afternoon of March 26, Company Floor Manager Paul Martin personally dis- charged Sledd. Subsequently, on October 1, the Union lost a Board-conducted election at the plant. The Gener- al Counsel contends that the Company discharged Sledd because of her union activity. Before taking up the matter of Sledd's discharge, I shall first discuss the al- leged independent violations of Section 8(a)(l). For rea- sons which will be discussed, I have not followed chron- ological order in doing so. Sandra Anderson was an employee of the Company during the union campaign. She was laid off on February 15, 1982 (shortly before the present hearing), assertedly for lack of work. There is no contention that she was un- lawfully terminated. Anderson was also active in the union campaign, and this fact was known to the Compa- ny. Anderson worked as an inspector in the finishing de- partment. Her immediate supervisor was Nancy Spencer. As indicated, the Union filed the present charge on April 6. Anderson testified that, in early April, Spencer ap- proached her at work. Anderson testified that, in the presence of other employees, Spencer asserted that "there wasn't any of us going to have a job if the Union didn't get out of the plant," and that she believed that Company President Mason would close the plant. An- derson testified that, on another occasion during the same period, Spencer told the employees that she had been to a floorladies' (i.e., supervisors') meeting, that she had never seen Mason so mad in all her life, and that she believed "he was so mad that he would just burn the place down." Anderson further testified that she attend- ed a union meeting on April 23, at which Spencer was discussed (but not by Anderson). Anderson testified that on April 25, while at work, Spencer asked her what she (Spencer) did to Anderson to deserve "such a good going over at the union meeting Thursday night." An- derson answered that she did not know what Spencer was talking about, whereupon Spencer responded that her son Donnie learned from a "friend" (whom Spencer refused to identify) about the alleged "going over." 2 All dates herein are in 1981 unless otheruise indicated. 208 VIRGINIA APPAREL CORP. Spencer's son worked at another plant owned by Com- pany President Mason, known as the Ferrum Division. Spencer asked Anderson whether her sister was at the meeting, and whether there was anyone sitting next to Anderson with "short dark brown hair." However An- derson avoided answering either question. Anderson's testimony concerning Spencer was uncon- tradicted. Spencer was not called as a witness and the Company offered no explanation for its failure to call her as a witness. Anderson's testimony concerning Spencer was not inherently incredible or unworthy of belief. In its brief (p. 11) the Company conceded that it does not contest the allegations regarding Spencer, who was and is admittedly a supervisor and agent of the Company. I credit the testimony of Anderson. I find that the Compa- ny, by Spencer, threatened its employees with plant clo- sure and loss of jobs if they selected the Union as their bargaining representative. I further find that the Compa- ny, by Spencer, created the impression of surveillance of union activity, by indicating to Anderson (without di- vulging the source of its information) that the Company was receiving information concerning union meetings. I further find that the Company, by Spencer, unlawfully interrogated Anderson concerning her union activities and those of her fellow employees, by questioning her about matters discussed at union meetings and about the identity of employees who attended union meetings. Spencer had no legitimate reason to question Anderson, and she gave no assurance against reprisal. Rather, the questioning occurred in the context of other unlawful conduct, including threats of reprisal for union support. In sum, I find that the Company violated Section 8(a)(1) of the Act by threats, interrogation, and the creation of the impression of surveillance of union activity.3 Sandra Anderson testified that at the March 26 union meeting (which she attended) organizer Freeman in- quired about President Mason's financial status. An em- ployee referred Freeman to Anderson because she was a comparatively long-time employee. According to Ander- son, she told Freeman that she understood that Mason was a partner with another individual in two other firms, which she identified. Anderson also referred Freeman to an article about Mason which appeared in a local news- paper in October 1980. Anderson testified that on a Monday or Tuesday in early April (apparently April 6 or 7) Mason approached her at work. According to Ander- son, Mason asked if his financial status were any of her business. Anderson answered that she did not know what he was talking about, whereupon Mason countered that she did, because he knew what she had said at the union meeting. According to Anderson, she acted "dumb," but Mason went on to say that he was "ashamed" of her and "surprised" at her, and that he hoped she was happy be- cause he was going to sell the business, because he was not going to have a union plant. Mason, in his testimony, I As Spencer was and is an agent of the Company, her statements to the employee may properly he considered as evidence of President Mason's behavior and attitude at the floorladies' meeting. The timing of the meeting tends to indicate that Mason's outburst was precipitated by the filing of the present charge. Mason's testimony at the present hearing indicates that he was highly sensitive to) accusations of wrongdoing. or even comments about his business activity. even if such accusations or statements constituted activity protected under the Act. admitted confronting Anderson, but professed that he was unable to recall exactly what he said. However, Mason testified that he was "pretty irate," and that he asked Anderson how well off he was supposed to be. Mason denied telling Anderson that he would close the plant or sell the business if the Union came in, or that he made any similar comment. According to Mason, some employees told floorladies, and other enployees told the manager of the Ferrum Division, that Anderson was giving information concerning Mason's finances, which information (according to Mason) was false. Mason ini- tially testified that he did not recall mentioning union meetings to Anderson, but that in any event he "had no way of knowing that these things were said at union meetings, at a union meeting." However, Mason then tes- tified as follows: I recall that one of the complaints, or one of the opera- tors had talked to me, said that it specifically hap- pened the previous meeting, and I am sure that I re- ferred to. when I talked to Sandra about it, I talked about that "she had something to say last night" but I don't think I had any idea that it was said at a union meeting. [Emphasis supplied.] In light of the italicized language, the balance of the quoted testimony was demonstrably false. Indeed, Mason stated in his investigatory affidavit to the Board: "Some of my employees told me Anderson was talking about my finances at union meetings. I don't dispute that." I credit the testimony of Anderson concerning her conversation with Mason. As indicated, Mason's testimo- ny was equivocal, contradictory, and in part demonstra- bly false. Moreover, the threats attributed to Mason by Anderson were consistent with threats which were indis- putedly made during the same period of time by Supervi- sor Spencer. It is evident that such threats constituted an integral part of the Company's campaign of opposition to the Union. I find that the Company, by Mason, violated Section 8(a)(1) of the Act by threatening employees that he would sell the plant if they selected the Union as their bargaining representative. As indicated, Mason professed concern that Anderson was giving out false information concerning his finances. However this assertion does not meet the General Coun- sel's allegation that Mason unlawfully created the im- pression of surveillance of union activities. Even if Mason did not actually use the word "union," it is evi- dent from the testimony of Anderson and Mason that both of them understood that Mason was talking about matters which were discussed at a union meeting. Mason indicated to Anderson that he knew what was discussed at the meeting, and by whom, but he never indicated the source or the manner in which he obtained this informa- tion. In these circumstances, Anderson could reasonably infer that the Company was maintaining close surveil- lance of union meetings, regardless of the propriety of matters discussed at those meetings. Mason's statements constitute the kind of activity which tends to have a chilling effect on the exercise of Section 7 rights, particu- larly where, as here, the impression of surveillance is ac- companied by threats or other outspoken employer op- 209 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position to unionization. I find that the Company, by its president, Mason, unlawfully created the impression of surveillance of union activity by indicating to its employ- ees that it knew what matters were discussed and what employees were present at union meetings. I further find, on the basis of Anderson's conversations with Mason and Spencer, and the admissions of Mason, that the Company regularly received information concerning union activi- ties, including matters discussed and the identity of em- ployees present at union meetings. I further find that the Company, by Mason, unlawfully interrogated Anderson concerning her attendance and matters discussed at union meetings. Anderson's testimo- ny constitutes the only evidence of what she actually said at the March 26 meeting. Mason never indicated what Anderson allegedly said which was false. For that matter, Mason never indicated anything which Anderson allegedly said at the meeting. On the basis of Anderson's testimony, it is evident that Anderson and the other em- ployees were engaged in activity which was protected under Section 7 of the Act. An employer's financial situ- ation is a proper subject for union inquiry or discussion. Such information may be potentially relevant to collec- tive bargaining; e.g., as to whether the employer is part of a larger business enterprise, or whether the employer is able to meet union demands which may be presented at the bargaining table. Such activity is proper even though the inquiry or discussion elicits information which turns out to be erroneous. In the present case, the interrogation was accompanied by accusations that An- derson had done something improper. The complaint does not allege unlawful interrogation by Mason. How- ever the conversation between Mason and Anderson was fully litigated in this proceeding. Therefore an appropri- ate finding is warranted. Wanda Dudley worked as a machine operator at the Company's plant for about 5 months, until she quit her job. She was employed by the Company during March 1981. Dudley worked in the blazer department, as did Anne Sledd. Department Supervisor Alice Brown was their immediate supervisor. Dudley testified that, on the morning of March 26 (the day Sledd was discharged). Dudley, Sledd, Brown, and employee Shirley O'Neal were present in the ladies' washroom. According to Dudley, O'Neal asked Brown if she knew where the union meeting was going to be held. Brown answered, "no," but to "ask Anne." Sledd gave a somewhat differ- ent version of the conversation. According to Sledd, Brown asked O'Neal if she were going to the meeting that night. O'Neal answered that she did not know what Brown was talking about, whereupon Brown responded: "Well, ask Anne, she knows." O'Neal was not presented as a witness in this proceeding. Supervisor Brown, in her testimony, did not deny that a conversation took place as described by Dudley. However Brown testified that she did not know that Sledd was supporting the Union. Brown explained that she was "not going to deny" that O'Neal asked about the union meeting, but that "if I had said Anne's name, it would have been because Anne was always involved in everything going on," such as "sell- ing Tupperware." Brown and her immediate supervisor, Floor Manager Martin, each denied that they discussed Sledd's union activity and Martin, like Brown, testified that he did not know that Sledd was active for the Union. I credit Dudley, but I do not credit Brown's explana- tion for her reference to Sledd. First, Brown did not qualify her reference. Rather, she unequivocally indicat- ed that Sledd was the person to ask. Second, the evi- dence indicates that the Company was vigorously and vocally opposed to unionization, to the point of threaten- ing to close the plant if the Union came in. It is evident that the Company regarded union adherence as a serious matter. In these circumstances it is unlikely that a super- visor would casually identify an employee as a union ac- tivist, without having some factual basis for doing so. Third, the evidence further indicates that employees reg- ularly informed the Company about union activities, in- cluding such details as matters discussed at union meet- ings, and the identity of employees who attended meet- ings. The evidence also indicates that company supervi- sory personnel from President Mason on down wanted and received such information, and acted on the basis of such information. In light of Sledd's extensive contacts with other enployees, it is unlikely that Brown failed to learn that Sledd was a principal union activist, and it is unlikely that such information was not passed on to higher management. I find that, by March 26, the Com- pany, including Supervisor Brown and Floor Manager Martin, knew that Sledd was a principal union activist. As indicated, the Union commenced the organizational campaign with the distribution of literature at the plant's entrances. The literature purported to reflect wages and benefits at union plants, indicating, inter alia, that sewers averaged between $7 and $8 per hour. Shortly thereafter President Brown made a speech over the plant intercom system, concerning the union campaign. (The content of the speech is not in evidence in this proceeding.) Anne Sledd testified that, a few days after the speech, she overheard Supervisor Brown tell another employee that "Sid would have to close down the plant" because the Company could not afford to pay the wages on the union leaflet. Brown, in her testimony, denied telling any employee that Mason would shut down the plant or sell the business if the Union came in. However, Brown did not testify as to what if anything she did tell employees. I credit Sledd. The statement attributed to Brown was consistent with subsequent statements by President Mason and Supervisor Spencer. Brown made no mention of the fact that wages and other terms and conditions of employment are subject to negotiation in collective bar- gaining. Rather, Brown tied plant closure to unioniza- tion. Therefore, Brown's statement constituted a threat, rather than a prediction "carefully phrased on the basis of objective fact." N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969). I find that the Company, by Brown, violated Section 8(a)(l) of the Act by threaten- ing employees with plant closure if they selected the Union as their bargaining representative. B. The Discharge of Anne Sledd Anne Sledd began working for the Company in May 1980 as a sewing machine operator. In March 1981 she 210 VIRGINIA APPAREL CORP. was working in the blazer department, where her princi- pal and regular job was to set facings to the front of the blazers. The Company had an incentive wage system for its operators. Operators who met the piece rate standard for their regular job received 25 cents per hour above the minimum wage, and more if they exceeded the stand- ard. Operators who failed to meet the standard received the legal minimum hourly wage. Like a number of other employees, Sledd was no worldbeater. She never met the standard, and consequently always received the mini- mum wage. In January 1981, Floor Manager Martin summoned Sledd and operator Drema Eames to his office, and told them that they would be fired unless they made piece rate within 3 weeks. Neither employee made the rate, but the threat was never carried out. (The Company does not contend that Sledd was discharged for failing to make the piece rate.) Martin's approach was consistent with the Company's normal disciplinary policy. Employees were frequently warned and some- times threatened, but the warnings and threats were seldom recorded, and hardly ever (if at all) carried out. Supervisors frequently admonished or warned employees collectively or individually about their wasting time, their excessive talking, or their need to improve produc- tion, but the Company did not follow through on these warnings. There was no structured or formal disciplinary system. No evidence was presented to indicate that any employee (other than Sledd) was ever discharged, sus- pended, or given written warning for wasting time, ex- cessive talking while at work, failing to meet production standards, or making too many mistakes; i.e., getting back an excessive number of repairs. Rather, so far as is indicated by the testimony of the witnesses for both sides in this case, no employee (other than Sledd) was ever discharged, or even suspended or given written warning, for any of these reasons. Rather, the evidence indicates that employee effort and accomplishment were largely left up to the employees themselves, except to the extent that they could be goaded by occasional admonitions and warnings. If employees worked hard and ably, they might earn extra pay, and the Company would also profit from their labors. If they did not, the Company was willing to derive what benefit it could from their work in return for the lowest possible wage. Therefore the Company ran what might be described as a loose shop. Employees frequently talked to each other while at work, sometimes stopping for brief periods of time to engage in such conversation, and they sometimes ad- journed to the restroom during working time. Such con- duct was either condoned by the Company, or resulted in nothing more than verbal admonitions or warnings. Before proceeding to Sledd's discharge, it is necessary to consider in some detail the physical layout of the blazer department, and the area in which Sledd worked. Each operator was seated on a swivel-type chair at her sewing machine. There was a bench on each side of the operator's chair. Incoming work, including work to be redone, was normally brought to the operator by the su- pervisor, inspector, or a service girl, and placed on the left bench. The operator normally placed finished work on the right bench. The operators sat in rows of about eight from front to back and about eight from side to side, and were seated about 8 feet apart from one an- other. Sledd was seated in the third or fourth row from the rear and in the third row from the right wall. Cleo Rigney was seated directly in front of Sledd, and Juanita Sink was seated directly in back of Sledd. Joyce St. Clair was seated immediately to the left of Sledd, and Wanda Dudley was seated immediately to the left of Sink. Sharon Hodges was seated immediately to the left of Dudley. Among this group, Sledd and Dudley were pre- sented as witnesses for the General Counsel, and Rigney, St. Clair, and Hodges were presented as company wit- nesses. The Company also presented Supervisor Brown and service girl Nancy Harrison as witnesses, and Floor Manager Martin was presented as an adverse witness for the General Counsel. Sledd testified that on March 26 she was performing her usual job of sewing facings into the jackets. In late morning, Supervisor Brown gave her two or three jack- ets to redo, because the seams were too wide. Sledd was working with a seam gauge. She testified that she was having difficulty working with the gauge because of the thickness of the material, which consisted of heavy cor- duroy. According to Sledd, she asked Brown for permis- sion to remove the gauge, but Brown said that this was not allowed. Sledd redid the jackets and after lunch re- sumed sewing facings into the jackets. Sledd testified that she saw Brown speaking to inspector Janie Mont- gomery, and that thereafter Montgomery returned all of her work, consisting of some 10 or 12 items, to be redone, again because the seams were too wide. Sledd testified that she resewed the facings. However Sledd ad- mitted that in doing so she did not use the proper proce- dure. Instead of removing the old seam, she simply sewed a new seam over the old seam. Sledd testified that she did this in order to show that there was almost no difference between the swidth of the old seam and that of the new seam. At or about 1:05 or 1:10 p.m. Montgom- ery again returned the jackets to Sledd. According to Sledd, she proceeded to pick out the threads. Sledd testi- fied that she saw Manager Martin talking to Supervisor Brown, and that following their conversation Martin came over to her workplace (between 1:30 and 2 p.m.). Sledd testified inconsistently about what she was doing at this time. Sledd initially testified that she was picking out threads. However, on cross-examination and recross- examination, Sledd testified that she was turned around, talking to Juanita Sink (or Wanda Dudley), and, specifi- cally, that she was showing Sink a jacket. Sledd was pointing out that there was almost no difference between the width of the old seam and that of the new seam. Sledd initially testified that she was turned sideways, but subsequently admitted that she was turned completely around, facing Sink. Sledd testified that it was possible for her to pick out the threads and talk to Sink at the same time. However, she admitted that she was not then working on the jacket which she was showing to Sink. According to Sledd, Martin, who spoke in a loud, harsh voice, asked her what she was doing. She answered that she was repairing odds. According to Sledd, Martin told her that it did not look like she wanted to work, and that she should clock her paper and get out. Sledd testified 211 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that at this time she had two or three jackets remaining to be redone. Sledd further testified that she was not given any warnings by Supervisor Brown on the day of her discharge, that she was not sitting with her feet propped up on a bench, that she was not trying to get fired, that she did not tell anyone that she did not care whether or when she got her work done, or that Cleo Rigney offered to help her or asked why she was taking so long. Wanda Dudley testified that when Martin came over Sledd was turned around, talking to Sink, and showing Sink a jacket, but that Sledd was working while she was talking. Dudley further testified that Sledd did not behave in an unusual manner, that she did not appear to have her feet propped up on a bench, and that she did not hear Sledd say that she would take her good old time doing the repairs, or that she did not care if it took all day. Dudley corroborated Sledd's testimony concern- ing Martin's discharge of Sledd. Manager Martin testified that he observed Sledd for some 5 to 10 minutes, and then went over to Supervisor Brown. According to Martin, he asked Brown what Sledd was supposed to be doing, and commented that he "couldn't see anything she was doing." Brown answered that Sledd was supposed to be doing repairs, and that she (Brown) had told her to get on with doing her repairs. Martin testified that he watched Sledd for a few more minutes, that she was sitting with her feet propped up on a bench, turned away from her machine and talking to the operators behind her, and that the other operators appeared to be trying to work, but that Sledd seemed to be disturbing them. According to Martin, he then and there decided, on his own, to discharge Sledd, and he did so. Martin testified that he discharged Sledd because in his opinion she was wasting time, and, by her deliber- ate action, she was showing contempt for her supervi- sors. Specifically, according to Martin, Sledd was leaned back with her feet propped up on a bench, she did not try to work even after she observed Martin, and her con- duct appeared to be deliberate. Martin did not dispute Sledd's version of her discharge. Martin conceded that he never fired anyone for wasting time or showing con- tempt for supervisors, although employees were warned about wasting time. Martin asserted that he had no prior occasion to discharge an employee for either offense, and that Sledd's conduct was the most "flagrant" he had ever seen. However Martin conceded that "flagrant" of- fenses had previously gone unpunished, the only distinc- tion in treatment being that warnings for such flagrant offenses were recorded in the supervisor's notebook. Superficially at least, the testimony of the Company's witnesses purported to corroborate that of Martin. How- ever, none of the witnesses corroborated the testimony of Martin in its crucial respect. Specifically, none of the witnesses testified that Sledd either stopped work or failed to work for any significant period of time. Rather, the thrust of their testimony, in sum, is that, for varying reasons, they questioned the manner in which Sledd was performing her work. However, these reasons did not form any part of the basis on which Martin allegedly de- cided to discharge Sledd. Supervisor Brown testified that she told Sledd to get on with the repair work because they had to move on to production, and because Sledd seemed to be making a "half-hearted effort." Brown ex- plained that, instead of taking the seam out and resewing it, Sledd "had resewn them and then was sitting propped up picking the other seam out." Brown testified that Sledd was not working at "a normal pace." According to Brown, Martin came over to her and asked what Sledd was supposed to be doing. Brown answered that "she was supposed to be doing her repairs." This was the extent of their conversation prior to Sledd's discharge. Brown testified that Sledd did not complain to her about the gauge. Brown asserted that the operator is responsi- ble for setting the gauge, but she conceded that the oper- ator must do so in accordance with the Company's instructions. In sum, Brown did not testify that Sledd stopped work or failed to do her work. To the extent that Brown questioned the manner in which Sledd per- formed her work, Brown never communicated her obser- vations to Martin and therefore it is evident that they played no role in Sledd's discharge. Moreover, Brown never counseled Sledd that she was doing the repairs in an incorrect manner. Rather, according to Brown's testi- mony, she simply gave the usual type of exhortation (fre- quently given to the employees) to get on with the work. The testimony of Joyce St. Clair is particularly signifi- cant. Among the three operators who were presented as company witnesses, St. Clair, who was seated next to Sledd, was in the best position to observe Sledd. St. Clair testified that she asked Sledd what was wrong with her odds, i.e., the work to be redone, and Sledd an- swered that she had taken the wrong seam allowance. St. Clair further testified that she overheard Sledd tell some- one that she was going to take her time no matter how long it took her. According to St. Clair, she observed Sledd leaned back in her chair, with her feet propped up on the bottom part of her workbench, turned around and talking to Sink, who was apparently working or trying to work. St. Clair testified that Sledd's behavior was un- usual in that she (St. Clair) never saw employees posi- tioned this way, i.e., leaned back with their feet propped up against a bench. However St. Clair testified that at the time she made this observation, and, specifically, at the time Martin came up to Sledd, there were one or two garments remaining on Sledd's left workbench. As indicated, Sledd testified (without contradiction) that she was given some 10 to 12 jackets to be redone (for the second time) at or about 1:05 or 1:10 p.m., that she was discharged some time between 1:30 and 2 p.m., and that at the time of her discharge she had 2 or 3 jackets re- maining to be done. In light of the testimony of Sledd and St. Clair, it is evident that, regardless of Sledd's pos- ture or conversations with other employees, she was get- ting her work done. Therefore, I do not credit Manager Martin's testimony, or inference, to the effect that, over a period of some 20 to 30 minutes, Sledd did not appear to be doing any work. Cleo Rigney testified that all of the operators in her area, including herself, received a substantial number of items to be repaired on the day of Sledd's discharge. However, according to Rigney, Sledd was taking longer than the others. Rigney (presumably turning around) asked Sledd why she was taking so long, and offered to 212 VIRGINIA APPAREL CORP. help. According to Rigney, Sledd answered that she did not know why she was taking so long, rejected the offer of help, and indicated that she did not care if she were taking too long. Rigney testified that Sledd had her feet up on the bench, and her machine was not running. (An operator would not be running her machine while re- moving threads.) Rigney further testified that Sledd was utilizing the wrong procedure in that she sewed one seam on top of another, and also because she was picking out one thread at a time. According to Rigney, the proper procedure, when working with heavy material such as corduroy, was to use clippers to cut the back tack, and then rip out the old seams. Rigney testified that thereafter she was facing forward, i.e., away from Sledd, and therefore did not see Martin come over or see what Sledd was doing at that time. As with the observations of Supervisor Brown, it is evident that Manager Martin neither knew, had reason to believe, nor cared whether Sledd was using an incorrect procedure when he dis- charged her. Sharon Hodges testified that, before Martin came up to Sledd, she saw Sledd turned leftward, lean- ing back in her chair. and talking to Sink. Hodges was unable to observe Sledd's feet. Hodges further testified that she saw Sledd "piddling with her odds" and that she did not appear to be in a hurry to fix them. Service girl Nancy Harrison testified that Sledd was trying to take the odds out, but she was taking too long. Harrison fur- ther testified that she saw Sledd turned leftward, with her feet on the bench, talking to the employees behind her, and that she had been doing this for some time. Har- rison also testified that she had never seen employees work in this posture. and that it was necessary for opera- tors to look at sewing or restitching work in order to do it. Harrison further testified that she saw Supervisor Brown speak to Sledd after the lunch break. Anne Sledd testified that she could not lean back in her swivel chair, because if she did so she would have fallen backward. This would be true if Sledd were facing her sewing machine. However, if Sledd were facing her left bench, she could have sat with her feet on the bottom board of the left bench, leaning back with her chair resting against the right bench. Sledd could not have sewn in this position. However, although the pos- ture was unusual, she could have removed seams while seated in this position. 4 I find, upon consideration of the testimony of the witnesses, that Sledd appeared for a time to be "piddling with her odds," that she initially re- sewed garments without first removing the previous seams, that she subsequently removed seams in a slow manner, one at a time, that she removed the seams while leaned back with her feet propped up against the left bench, and that Manager Martin observed her while she was turned around and talking to operator Sink, during which time she was not working. I also credit the testi- mony of Supervisor Brown that she told Sledd to get on with her repair work, and I find that Sledd did not ex- 4 In making thece finding,. I haxc taken into consideration photo- graphs which were presented In evideiLce by the Company. See. in par- ticular, Resp. Exh 7 pressly complain about the gauge.' However, I find in the circumstances that Sledd did not manifest either an unwillingness to work or a contempt for her supervisors. Sledd was evidently perplexed and disturbed because she was getting returns on work which she felt did not have to be redone. She did not get any help or advice from her supervisors, beyond the usual exhortation to get on with the work. In these circumstances, Sledd tried a new, albeit unorthodox wiay of redoing the work. If Sledd had made no effort at all to redo the sork, then there might have been a factual basis for the Company's asserted reasons for terminating Sledd. However, as indi- cated by the testimony of Joyce St. Clair, the Company's own witness. Sledd was doing the work arid getting it done. I find that the Company discharged Sledd because of her active and leading role in the union organizational campaign. The Company was hostile to unionization to the point of repeatedly threatening its employees with plant closure and loss of jobs if they selected the Union as their bargaining representative." The Company regu- larly received information about union activity, passed such information on to higher management, and acted on the basis of such information, sometimes in an unlawful manner. The Company learned of Sledd's active and leading role in the union campaign. Within hours of re- ceiving such information the Company discharged Sledd. The Company did so for reasons which had no signifi- cant basis in fact. Sledd was doing her work and getting it done, and she did not demonstrate contempt for her supervisors. Even if there were a factual basis for the derelictions attributed to Sledd. her termination was con- trary to employer policy, both as to the end result and the manner in which it was carried out. Although it was evident to at least one employee that Sledd was having difficulty with her work, neither Brown nor Martin made any effort to find out the problem. Although oper- ators frequently stopped work to talk to other employ- ees, and sometimes (as indicated by St. Clair) turned around completely to do so, the Company usually over- looked this practice, or, at most, would give a verbal warning or admonition. The Company did not discharge, suspend, or give written warnings to employees for poor performance, work habits, or attitudes even in "flagrant" cases. In such flagrant cases, the supervisor would simply record the warning in her notebook. Martin did not even bother to consult with Sledd's immediate super- visor before discharging Sledd. Indeed, in their brief conversation Brown did not even indicate to Martin that Sledd was doing anything wrong. Moreover, in contrast to his behavior in January, when he summoned Sledd and other employees to his office and made a threat which he never carried out, Martin publicly and loudly humiliated Sledd by discharging her on the work floor in the presence of other employees. Such action demon- s Sledd did not mention any prohlem v ith the gauge either in her in- vestigatory affidavit or in her tetimon, hefoic the Virginia Fniplon ment Commission in connection with her termination 6 t find without merit the Company's arguienlt (hr. p 11) that the threats and other unlawxful statement' mAde afier Sledd disd liharge are not evidentiary with regard to the discharge The (onipanl did not sud- denly develop its hostility to unionliation after terminating Slcdd 213 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strates a vindictiveness which would be unlikely if the Company were not discriminatorily motivated against Sledd. I find that the reasons asserted by the Company for discharging Sledd, i.e., wasting time and showing contempt for her supervisors, were pretextual, and that the true and only reason for her discharge was her union activity. Therefore, the Company violated Section 8(a)(3) and (1) of the Act by discharging Sledd. CONCL USIONS OF LAW I. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act, the Company has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. By discriminating in regard to the tenure of employ- ment of Anne Sledd, thereby discouraging membership in the Union, the Company has engaged in, and is engag- ing in, unfair labor practices within the meaning of Sec- tion 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Company has committed viola- tions of Section 8(a)(l) and (3) of the Act, I shall recom- mend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Company discriminatorily ter- minated Anne Sledd, it will be recommended that the Company be ordered to offer her immediate and full re- instatement to her former job or, if it no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings and benefits that she may have suffered from the time of her discharge to the date of the Company's offer of reinstatement. I shall further recommend that the Company be ordered to expunge from its records any reference to the unlawful discharge of Anne Sledd, to give written notice of such expunction to Sledd, and to inform her that its unlawful conduct will not be used as a basis for further personnel actions against her. See Sterling Sugars, Inc., 261 NLRB 472 (1982). Backpay shall be computed in accordance with the formula approved in F W1 Woolworth Company, 90 NLRB 289 (1950), with interest computed in the manner and amount prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).7 It will also be recommended that the Company be required to preserve and make available to the Board or its agents, on request, payroll and other records to facilitate the computation of backpay due. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 7 See, generally. Isis Plunbing & Heating Co.. 138 NLRB 716, 717 721 (1962). 10(c) of the Act, I hereby issue the following recom- mended: ORDER s The Respondent, Virginia Apparel Corporation, Rocky Mount, Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Amalgamated Cloth- ing and Textile Workers Union, AFL-CIO-CLC, or any other labor organization, by discriminatorily terminating employees, or in any other manner discriminating against them with regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening employees with plant closure or sale or loss of jobs if they designate or select said Union or any other labor organization as their bargaining repre- sentative. (c) Interrogating employees concerning meetings or other union activities. (d) Creating the impression of surveillance of union meetings or other employee union activity by telling em- ployees about reports it received concerning such activi- ty. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Offer Anne Sledd immediate and full reinstatement to her former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights previously enjoyed, and make her whole for losses she suffered by reason of the dis- crimination against her as set forth in the section of this Decision entitled "The Remedy." (b) Expunge from its files any reference to the dis- charge of Anne Sledd on March 26, 1981, and notify her in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against her. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. (d) Post at its Rocky Mount, Virginia, place of busi- ness copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Re- spondent's authorized representative, shall be posted by 8 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 find- ings. cnclusions, 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. 9 In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 214 VIRGINIA APPAREL CORP. Respondent immediately upon receipt thereof, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of the of this Order, what steps Respondent has taken to comply herewith. 215