Blue Bell-Globe Manufacturing Co.

In the Matter of BLUE BELL-GLOBE MANUFACTURING COMPANY and AMALGAMATED CLOTHING WORKERS OF AMERICA Case No. C-145-5.-Decided May 29, 1940 Overall Manufacturing Industry-Interference, Restraint, and Coercion: anti- union statements ; offer of promotion to union leader for desisting from union activity, coupled with warning of discrimination for refusal to do so ; char- acterization of union as motivated solely by a desire for dues; warnings against union activity delivered under pretext that recipients had violated rule against solicitation during working hours ; speech to employees containing implication that employees in another plant operated by respondent had suffered economic detriment from unionization ; speeches and notices stating that employees did not have to join union to keep job, construed as; charges of surveillance of union meeting dismissed ; finding of Trial Examiner that lay-offs of one em- ployee constituted (not charged in complaint), not sustained on merits-Dis- crimination: discharge of employee because of union membership and activity- Reinstatement Ordered: of employee discharged-Back Pay: awarded. Mr. Charles Y. Latimer, for the Board. Woodward,' Dawson and Hobson, by Mr. Charles I. Dawson, of Louisville, Ky., and Mr. Norman A. Boren, of Greensboro, N. C., for the respondent. Mr. Bernard Borah, of Atlanta, Ga., for the Union. Mr. Bonnell Phillips, of counsel to the Board. DECISION AND ORDER STATEMENT OF TIIE CASE Upon charges .duly filed by Amalgamated Clothing Workers of America, herein called the Union, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the'Fifth Region (Baltimore, Maryland), issued its complaint dated July 18; 1939, against Blue Bell-Globe Manufacturing Company, Greensboro, North Carolina, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of. Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the com- 24 N. L. R. B., No. 3. 126 BLUE BELL-GLOBE MANUFACTURING COMPANY 127 plaint, accompanied by notice of hearing, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance (1) that the respondent on or about February 23, 1939, discharged V. T. Kivett,' an employee, for the reason-that he had joined the Union and had engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protec- tion; and (2) that the respondent by the above act, by offering promotion to V. T. Kivett if he would withdraw from activity in connection with the union campaign, by advising and warning em- ployees not to become members of or to remain active in the Union, by keeping a union meeting and meeting place under surveillance, and by various other acts interfered with, restrained, and coerced em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. On July 26, 1939, the respondent filed a'special appearance moving that the complaint be dismissed for want of jurisdiction on the ground that it was not engaged in commerce within the meaning of the Act. On the same date the respondent filed an answer to the complaint, preserving its motion to dismiss for lack of jurisdiction, and denying that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held at Greensboro, North Caro- lina, on September 11 and 12, 1939, before P. H. McNally, the Trial Examiner duly designated by the Board. The Board, the Union, and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the commencement of the hearing, the respondent renewed its motion to dismiss the complaint for want of jurisdiction. The Trial Examiner reserved ruling on this motion. During the course of the hearing rulings were made by the Trial Examiner on other motions and objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby, affirmed. On September 14, 1939, subsequent to the hearing, the respondent filed two motions, one for dismissal of the complaint on the ground that the evidence produced at the hearing failed to show that the respondent had engaged in any unfair labor practices, the other to strike from the record testimony of Oneta Dean concerning three lay- offs she suffered while in the respondent's employ, on the grounds that such testimony was immaterial; and that the Board, not having 1 Incorrectly designated: in the complaint as V. T. Kivette. The complaint was amended at the hearing to show correct spelling. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged that such lay-offs constituted unfair labor practices, is pre- cluded from making any finding of fact or order against the respond- ent in respect to the lay-offs. Rulings denying these motions and the motion to dismiss the com- plaint for want of jurisdiction were thereafter made by the Trial Examiner in his Intermediate Report, filed December 29, 1939, copies of which were duly served upon the parties. In his Intermediate Report the Trial Examiner found that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and, affirmatively, offer full reinstatement with back pay to V. T. Kivett, and make whole Oneta Dean for any loss of pay she suffered by rea- son of two discriminatory lay-offs. The Trial Examiner further found that the evidence adduced was insufficient to support the alle- gation of the complaint that the respondent had kept a union meet- ing and meeting place under surveillance, and accordingly recom- mended that the allegations of the complant in this respect be dismissed. Thereafter the respondent filed exceptions to the Intermediate Re- port. For the reasons set forth below we sustain the. exceptions to the finding of the Trial Examiner that the respondent twice laid off Oneta Dean in violation of the Act. The Board has considered all other exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. At the hearing the Trial Examiner advised the parties that they had the right to apply for oral argument before the Board and to file briefs. Thereafter the respondent filed a brief which the Board has considered. None of the parties applied for oral argument. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Blue Bell-Globe Manufacturing Company, a North Carolina cor- poration with its principal offices in Greensboro, North Carolina, owns and operates five plants, one in Greensboro, others in Commerce, Georgia; Middlesboro, Kentucky; Columbia City, Indiana; and Abingdon, Illinois. The respondent maintains sales offices in Chi- cago, Illinois, and New York City. At the Greensboro plant, with which this proceeding is concerned, the respondent engages in the manufacture of overalls and jackets. The principal raw materials used by the respondent in its manufacturing operations at this plant BLUE BELL-GLOBE MANUFACTURING COMPANY 129 are cotton cloth and hardware, approximately 10 per cent of which are secured by the Company from points outside the State of North Carolina. The annual gross revenue of the Greensboro plant approx- imates $3,000,000, of which over 50 per cent is derived from sales to points outside of North Carolina. The respondent employs approxi- mately 1,200 employees at its Greensboro plant. II. THE ORGANIZATION INVOLVED Amalgamated Clothing Workers of America is a labor organi- zation affiliated with the Congress of Industrial Organizations. It admits to membership employees in the men's suit and work clothing industries. III. THE UNFAIR LABOR PRACTICES A. Background The first organizational activity at the respondent's Greensboro plant was begun by Virgil T. Kivett, an employee in the respondent's cutting-room department, in the latter part of June 1937. By June 25 Kivett had solicited and obtained applications for membership in the Union from all but 3 of the approximately 28 employees in his department, and had distributed union applications blanks in other departments throughout the plant. Shortly thereafter, union organizers appeared in Greensboro and continued, during the sum- mer of 1937, the membership drive begun by Kivett. In the fall of that year, the respondent's plant was reduced to a part-time schedule which remained in effect until 1938. During this slack period the Union withdrew its representatives, and Kivett became, irrthe absence of formal establishment of a local branch of the Union, president of the union movement within the plant.2 In this capacity, accord- ing to the testimony of the Union's regional director, Kivett was primarily responsible for "holding things together" until the Union reopened its drive in the summer of 1938, at which time union head- quarters were established near the plant. Vigorous organizational endeavors were not, however, apparently begun until after January 20, 1939. On that date the employees of the respondent's Middles- boro, Kentucky, plant designated the Union as their representative for collective bargaining purposes by a majority of•those voting in a consent election. Following this victory a number of union repre- sentatives were sent from Middlesboro to Greensboro, and the Union began on or about February 10, 1939, an intensive organizational 9 The Union's regional director testified that "he (Kivett) was president of the organization in the plant." Since no charter had been issued, "we simply formed among our members and elected a temporary president to preside at the meeting and to help conduct the organization work." 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign in prepartion for an election among Greensboro employees. This campaign, as hereinafter detailed, incurred the immediate and sustained opposition of the respondent. B. Interference, .restraint, and coercion The respondent became aware of the Union's organizational activi- ties and of Kivett's leadership therein almost at the outset of the Union's 1937 drive. Kivett testified that his foreman, Overman, approached him in the latter part of July 1937, with the statement that he wished to speak to Kivett about the Union. After a pre- liminary discussion of its merits, Overman informed Kivett that "the company [respondent] is not going to recognize any union . . . and I don't want to see you get mixed up in this thing." Kivett was further warned that "these people will come in here, more or less, and stir up trouble and get your money and then they are gone. Then the company will get rid of all of you who fool with that mess." Overman, according to Kivett's further testimony, characterized the union movement as "Communistic," and as having had its origin in Russia. In conclusion, Kivett was told, "You have been a good worker, I think a lot of you, I would hate to see you boys lose out for anything like that." . Kivett testified that Overman again approached him about Sep- tember 1937, with the statement that "It seems like you are dissatis- fied with the work here at the plant." Kivett denied being "particu- larly dissatisfied," whereupon Overman said, "Well, it seems that something is wrong, is there another job you would like to have, any other job in the plant; I don't want to see people dissatisfied, I want people satisfied." During the conversation Kivett further testified that Overman stated to him that the respondent "does not have to fire you for being connected with the Union, they can find a dozen different ways to get rid of you, and, if I were you, I would get out of this thing." Kisel Sharpe, a union member employed by the respondent during 1937, testified that Overman promised him a promotion, on request, from assembler to cutter 3 if he would "work for the Company, not for the outside stuff," and further advised him that "if you don't, you know we can make it hard for you." Overman denied all the foregoing statements attributed to him by Kivett and Sharpe. The Trial Examiner, who observed the de- meanor,of the witnesses at the hearing, refused to credit Overman's . ' Cutters operate electrically driven vertical knives used to cut overall parts from 1.00 thicknesses of denim cloth spread upon large tables in the respondent 's cutting-room department. Assemblers collect; sort, and tie into bundles various individual parts taken from the cutting tables. - BLUE BELL-GLOBE MANUFACTURING COMPANY 131 denials. On the basis of the Trial Examiner's finding, and in con- sideration of certain other testimony by Overman, which we herein find to have been in some respects self-contradictory,' we find that Overman made, in substance, the statements set forth above. We are of the opinion and find that Overman's conversation with Kivett in September 1937, and his statements to Sharpe, can only be inter- preted as offers to them of promotions if they desisted.from active participation in the Union's organizational endeavors, coupled with warnings of discrimination in respect to their tenures of employment if they refused to do so. The respondent's plant manager,' Weant, testified that he had informed all foremen that the respondent would not discriminate between union and non-union members, and had instructed them "not to interest themselves in finding out who were members and who were not." The record, however, does not disclose the date upon which it is claimed such instructions were issued. Even as- suming that Overman had received Weant's instructions prior to making the patently coercive statements above detailed, we find that the actions of Overman, a supervisory 'official with authority to hire and discharge, are attributable to the respondent,6 especially in view of the findings below that Overman continued his anti- union campaign at a later date, and that Weant, far from making effective his alleged instructions, himself interfered with, restrained, and coerced the respondent's employees in the exercise of their rights under the Act. In the summer of 1938 Overman again threatened discrimination against an employee for union membership and activity. Charles May, .a cutter under Overman's supervision, testified that Overman engaged him in a discussion, of unionism, and stated in conclusion : "Just suppose this Union doesn't go"through, the Company [respond- ent] doesn't have to fire you for belonging to it, they can have differ- ent things they can fire you for.' Following this talk, May sought the advice of the Union's regional director, asking in effect whether it would not be expedient, 'in view of Overman's remarks, to relin- quish his union affiliation. 'Both May and the union official testified to this conference. We find that Overman made the statements sub"staiiiially as. set forth above. See Section III, D, infra. ° That Overman' was vested in some degree with authority to transfer and promote employees in his department is apparent from the testimony of the respondent's plant manager, Weant, who testified that he - did not "determine any policies ' in the plant on promotions," that he "certainly did not talk with every employee that wants to be changed to another job ," but that "it is entirely up to the foreman and the superintendent to look after that." ° Swift & Co. V. National Labor Relations Board, 106 F. (2d) 87 (C. C. A. 10). 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As above stated, the union campaign had its birth and received its strongest initial support among employees of the cutting depart- ment under Overman's supervision. Thereafter the movement gained adherents in other departments of the plant, and on or about Feb- ruary 10, 1939, the Union entered "full force" into a drive to win the membership of a majority of the respondent's employees in the entire plant. For this purpose four members of the Union's Middles- boro, Kentucky, branch were brought to Greensboro as witnesses of the union victory at the Kentucky plant, and on February 15, 1939, a draft of a proposed contract submitted by the Union to the respondent's Middlesboro officials was read to a gathering of the Greensboro employees. . On the following day, February 16, 1939, Kivett was summoned to the office of Weant, plant manager, who stated, in substance, that it had been reported to him that Kivett had been doing organiza- tional work during working hours and had threatened various em- ployees with physical violence if they refused to join the Union. Kivett denied the charge and asked Weant to produce witnesses of his alleged actions. This Weant refused to do, -but promised Kivett that he would be able to produce witnesses "the next time it happens". and that Kivett would then be discharged. Kivett fur- ther testified that Weant, during this discussion, stated that "as long as Blue Bell [the respondent] stays in business, we won't have to send for any outsiders to run it for us"; and that "those_'people will start trouble and they will damage property and stuff like that, and strikes . . . that is how it will happen, there will be damage to property by hoodlums and strikers." In conclusion, according to Kivett, Weant promised that "as long as you stay in Blue Bell we will pay you the best wages . . . and you don't need to have any outsiders come in here." Weant denied this testimony, specifically denying that he had charged that "those people will start trouble" or that he had referred to property damage by hoodlums and to the possibility of strikes. Yet Weant, in the course of his testimony, admitted in answer to a question by counsel for the respondent that he was "against the C. I. O. organizing our plant .... because I have known the trouble it has caused by organizing. Naturally we read the papers, we heard of sit-down strikes and we heard the stories in Philadelphia when the plants were destroyed." A comparison between this testi- mony and the statements attributed to Weant by Kivett reveals a striking similarity. The Trial Examiner credited Kivett's testimony concerning his interview with Weant, and we find that Weant in substance made the statements recited above. It is moreover appar- ent that Weant was not, as he claimed, solely concerned in this inter- BLUE BELL-GLOBE MANUFACTURING COMP ANY . 133 view with Kivett's alleged conduct within the plant, but was in actu- ality seeking to discourage any organizational activity by Kivett on behalf of the Union at a time when the. Union's campaign had reached its height. This conclusion is compelled from an examination of Weant's testimony concerning the alleged complaints against Kivett, which, he stated, had been made to him by three employees, Allen, Miles, and Freeman, about 2 weeks before his conference with Kivett. Allen, however, testified that he had made complaint to Weant con- cerning Kivett's actions in November 1938 ; Freeman testified to mak- ing a similar complaint in January 1939; and Miles testified that he had not reported an alleged threat by Kivett made in 1937 until 2 months before the hearing. We are satisfied and we find that Weant's reprimand to Kivett on February 16, 1939, delivered a few days after the Union had begun its reinforced membership drive, was not in fact solely motivated by complaints received from Free- man and Allen 1 month. and 3 months, respectively, before the event; and could not, of course, have been occasioned by Miles' report in July 1939. The'inference drawn from this finding, that Weant was thereby interfering with and discouraging Kivett's union activity, is strengthened by the testimony of other of the respondent's employees who received warnings similar in tone from other of the respondent's supervisory officials during the same period. On or about February 22, 1939, Jennie Lefler, a union member, was summoned to the office of R. W. Shaner, who, as plant superintend- ent, was immediately subordinate to Weant. The interview which ensued was based, according to Shaner, on a complaint by Lefler's foreman, Coble, who had told him that she "had been running around the building and talking during working hours" in defiance of his repeated instructions; Lefler testified that she denied this charge to Shaner who thereupon said, "Well, I am glad that you are not mixed up in this thing inside the plant, you know we are not going to have it, we are going to get rid of these people." Shaner denied this testimony. We concur, however, in the Trial Examiner's finding re- garding this testimony : "If Lefler, identified as an active union sup- porter, was guilty of such flagrant insubordination to her foreman, there is no stated explanation in the record why Coble did not dis- cipline her, either by lay-off or discharge, which he had the power to do, instead of sending her to Shaner. The denial by Shaner of the above-quoted testimony of Lefler is not impressive under the cir- cumstances." We find that Shaner made the statement attributed to him by Lefler, thereby manifesting his opposition to the Union, and threatening the discharge of employees who gave it assistance. That the' acts and statements of Weant and Shaker were deliberate interferences with their employees' right to self-organization is con- 283035-42-vol. 24--10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD firmed by the undenied testimony of Anna Self, an employee and. union member. On or about February 21, 1939, Self was ordered by her foreman to report to Weant's office, and was given an allowed time sheet so that she would not be penalized for the time lost. Weant was absent when Self presented herself, but the respondent's vice president and general manager, Walls, then in Weant's office, stated, in response to a query by Self as to the reason for being sum- moned, that "he understood that I (Self) was one of the number be- ing misled by outsiders"; that he "thought it his duty to call some of his people in to talk to them . . . and that he hated to see them being misled by outsiders." Self admitted to Walls that she was a union member, and Walls, in effect, warned her that the union would mulct the employees of their dues and then disappear.7 In conclusion Walls stated that Self was an intelligent woman and could think things out for herself, but "not to worry about being called to the office." This testimony, which we find to be true, viewed in conjunction with the actions of Weant and Shaner, reveals a studied attempt by the respondent's hierarchy of supervisory officials to impede and discour- age union organization and membership. Coincident with the above detailed individual conferences were speeches by Weant to "repre- sentative groups of our employees in every unit in the plant." Al- though Weant testified, that such speeches were begun by hime in January 1939, the first evidence of them in the record is found in the testimony of an employee in the cutting department, who stated that Weant, accompanied by Shaner, addressed some 20 employees in his department during working hours on or about February 20, 1939. On or about March 1, 1939, Weant spoke to another group of em- ployees, including in their number Charles Routh. Weant prefaced his remarks, according to the testimony of Routh, with the asser- tion that "there had been talking over the plant that if you didn't join the union, you would be discharged, and I want to say that you will not be discharged if you don't sign a card." Weant informed the employees, according to Routh, that "he was sure the Company could do more for us than could any organization on the outside." Weant then made reference to the Union's victory in the respondent's Mid- dlesboro,K'entucky, plant, stating that "they (the Middlesboro em- ployees) were Working as usual, except the last few weeks on short time, since the election." We find.that Weant, while addressing a group of the respondent's employees on or about March 1, 1940, made in substance the statements quoted above. We have no doubt' that 4 See Matter of Yale C Towne Manufacturing Company and Amalgamated Association of Iron,. Steel and Tin Workers of North America, Lodge 1674, 17 N. L. R. B. 666. BLUE BELL-GLOBE MANUFACTURING COMPANY 135 these statements were designed to discourage the respondent's Greens- boro employees from joining the Union. Besides making manifest the. respondent's antagonism to the Union, we think it obvious that they_ contained also an implicit warning against self-organization. The statement by Weant, regardless of its truth, that work in the Mid- dlesboro plant was proceeding "as usual, except the last few weeks on short time, since the election," could only have been designed to im- press upon the Greensboro employees not only that the respondent's Middlesboro employees had received no benefits from self-organiza- tion, but that they had in fact suffered economic detriment. Following a number of talks by Weant to various groups of the respondent's employees, the respondent finally, on June 22,1939, caused notices to be posted throughout the plant codifying, according to Weant, the substance of his previous speeches. Although the testi- mony of Routh has shown that Weant, in one of these speeches, had gone beyond the limits of the notices in a discouragement of union activity, we will treat the other speeches by Weant and the subse- quently posted notices as having had substantially the same content. The notice read as follows : Rumors have been circulated among our employees to the effect that failure on your part to become a member of the union would mean loss of employment in-this company. Such is definitely not the case and the company again wishes clearly to state its position on this matter and inform you of your rights. There will not be any discrimination between those who are not members of a union and those who are. Your position in this company is secure so long as you obey plant rules and regulations. Outside organizations will not determine whether you are or are not to be employed in this plant. This company will not permit loss of employment to any person who is not a member of an outside organization. Of the respondent's officials, Weant alone testified concerning the alleged rumors referred to in the opening sentence 'of the notice. On cross-examination Weant estimated that 20 or 30 employees had reported the aforesaid rumors to him, but. he could recall the names of but two, Allen and Freeman. As before stated, Allen testified. that he had reported in November 1938 certain statements made to him by Kivett. These included, according to Allen, a warning that after the union became established in the plant non-members "would have to pay a big sum of money to join or they would have no job." Freeman, identified by Weant at one point in the hearing as an assist- ant to the foreman in his,department with powers- comparable to a floorman, testified that Kivett during the latter part of January twice solicited his membership under threat of being "kicked out.", In 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD view of the negligible testimony adduced in proof that the aforesaid rumors had been circulated, we find that the speeches of Weant and the subsequently posted notices "informing" the employees "of their rights" were gratuitous in nature, and coming, as they did, at a time when the Union was first seeking to establish itself as an exclusive bargaining agent, were coercive in intention and effect. We have had occasion to consider a notice almost identical in purport to the one here in issue in the Matter of Roberti Brothers, Inc. and Furni- ture Workers Union, Local 1561.8 What we there said has equal cogency here: Consequently the gratuitous advice to employees not to "let anybody tell you that your job here depends upon membership in any union" can only be explained as a notice to employees that under no circumstances would the respondent enter into a closed-shop agreement with the Union, the only device whereby the Union might effect the compulsion of employees to join the Union. The respondent was clearly issuing an ultimatum with respect to a term or condition of employment properly the sub- ject of collective bargaining before. any request for a closed shop had been made. Were the Act to sanction such notice by the employer, he could with equal impunity further forestall union organization by announcing to his employees that under no circumstances would he recognize seniority among his employees . . . that under no circumstances would he consider a change in the hours of employ- ment, that under no circumstances would he consider.any change in any other term or condition of employment. In effect, at the outset of union organization he,could discourage his employees from becoming members by warning them that any possible ad- vantage to be derived from such membership and from collective bargaining was beyond their reach. We cannot permit the pur- poses of the Act to be so flouted. We find that the speeches of Weant and the notices posted by the respondent had the purpose of anticipating and denying to employees a possible advantage to be derived from collective bargaining nego- tiations. It cannot, of course, be denied that they were motivated by a hope that the respondent's employees would reject the Union, 8 8 N. L. R. B. 926 . The notice in that case read : To the Employees : There has been circulated information to the effect that you must join the Union in order to keep your job. This is a false statement. It is not necessary to have a union card to work here. It is the policy of this firm not to encourage . or discourage membership in Labor Unions. This is entirely for you to decide. However, do not let anybody tell you that your job depends upon membership in any Union. . .. . BLUE BELL-GLOBE MANUFACTURING COMPANY 137 and could only have been understood by the employees as a manifesta- tion of the respondent's desire that they refrain from organization.9 We find that the respondent by posting the said notices, and by the aforesaid activities of Weant, Walls, Shaner, and Overman, has interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization, to form, join, and assist labor organizations, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. C. Other alleged acts of interference, restraint, and coercion The complaint alleged. that the respondent, through Superintend- ent Weant, kept a union meeting and meeting place under surveil- lance, thereby interfering with, restraining, and coercing its -employees in the exercise. of the rights guaranteed in Section 7 of the Act. The Trial Examiner found that Weant's presence near a union meeting was unrelated to the meeting and accidently coincided with it, and recommended that the complaint in this respect be dismissed. No exception was filed to this finding and recommenda- tion Upon an examination of the record we find that it does not support this allegation, and, accordingly, the allegation will be dismissed. The record shows that Oneta Dean, an active union. member, suf- fered three lay-offs during the spring and summer of 1939. Dean's foreman, Hemphill, ordered the first lay-off on March 7, 1939, for a period of 3 days. Hemphill testified that this lay-off was ordered because Dean had failed to produce the required number of work units ;10 that he had on previous occasions frequently spoken to Dean concerning her failure to achieve an average production standard; and that she had often made the excuse of illness. Dean denied that she had been laid off for slow work. The respondent, however, pro- duced records, which were not disputed, that established that Dean had consistently fallen between 17 and 20 per cent below the produc- tion norm during the weeks immediately preceding her lay-off. The Trial Examiner in his Intermediate Report considered the testimony concerning this lay-off and found that the evidence failed to estab- lish that the lay-off was discriminatory. Cf. National Labor Relations Board v. Griswold Mfg . Co., 106 F. ( 2d) 713 (C. C. A. 3) : "It is because of [Congress'] recognition that the employee is sensitive and responsive to even the most subtle expression on the part of his employer , whose good will is so necessary, that limitations have been placed upon the activities of the employer in carrying out the principles of collective bargaining." 10 The respondent operates under a system of production commonly known as "the Bedeaux .system," which requires an average hourly production of 60 "Bs" or work units. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 12, 1939, Hemphill again, laid off Dean 'for a two-week period. A nurse, maintained by the respondent, testified that Dean; had made daily visits to the first-aid room in the respondent's plant during the period preceding this lay-off, complaining of headaches and illness. When Dean failed to respond to her ministrations, the nurse finally recommended to Hemphill that Dean be laid off so that "she could be given a chance to get herself in shape." On the strength of this recommendation, Hemphill testified, Dean was laid off for two weeks. While the duration of this lay-off may have been somewhat long in view of the fact that Dean complained only of suffering from headache, we do not consider Hemphill's action in this regard as so arbitrary that an inference may be drawn that the lay-off was influenced by Dean's union activities, although there is evidence in the record to show that Dean had been previously warned by Weant, in February 1939, against continuing such activities. In the light of all the testimony, we, are unable to concur in the Trial Examiner's finding that the lay-off on June 12, 1939, was made in violation of the Act. Dean was laid off for a third time by Hemphill.on July 17, 1939, again for a two-week period. This action was taken without any prior recommendation from the nurse, and under circumstances which cast strong doubt on the respondent's motives. Nevertheless; Dean's previous health record, combined with the fact that Dean had apparently, although the record is not clear, been excused from work on the previous working day because of ill health, give support to, HemphilPs. claim that the lay-off was again occasioned by Dean's illness: Following this lay-off Dean returned to work, and was at the, time of the hearing in the respondent's employ. We do not find that Dean's lay-off on July..17, 1939, was ordered in violation of the Act. D. The discriminatory discharge of Virgil T. Kivett Virgil T. Kivett, the orginator and leader of the union movement in the plant had been employed by the respondent for a period of ap- proximately 13 years, when, on or about February 23, 1939,.he was dis- charged by his foreman, Overman. Kivett's • union activity was well known to the respondent. As found in Section III, B, above, Kivett had on at least two occasions been warned against such activity by Overman, and one week before his discharge had been reprimanded by Weant in the interview therein described. It is significant that Overman's warning had occurred shortly after the Union had received its initial impetus from Kivett, and that Weant had delivered his reprimand and warning to Kivett almost immediately following the reinforced and greatly magnified union drive in 1939. BLUE BELL-GLOBE MANUFACTURING COMPANY 139 On the day of his discharge Kivett ' and Howard Coble, a fellow employee, ' were working at one of 'the tables in the respondent's cutting-room department. Hunt, assistant foreman in that depart- ment, reprimanded Coble for having "signed ahead" for work on another table before he had completed his task at the table where he and Kivett were working. The reprimand was delivered in the presence of Kivett who was standing directly across the table from Coble. Coble denied having violated the respondent's rule against "signing ahead," whereupon Hunt, according to the testimony of Kivett, said, while facing and looking directly at Kivett, "If you idiots had sense enough to sign up for this work, we would get better production." The use of the word "idiots" caused Kivett to take exception to Hunt's remark, particularly because Kivett's first born child had been afflicted with an injury at birth which had resulted in idiocy. When Kivett objected to being called an idiot, Hunt ordered him to "shut up, I am not talking to you, I am talking to Coble." Kivett replied, "If you want to talk to Coble call him an idiot, and not idiots." An argument then ensued between Hunt and Kivett and as to whether the former used the term "idiots." Kivett testified on direct examination that he had said to Hunt during the course of the argument that if Hunt denied using the word "idiots" he was a "damn liar." Hunt replied that he had not used the term, and that if Kivett said that he had, Kivett was a "damn liar." Whereupon Kivett, according to his own testimony, replied, as Hunt was walking away, that "Ifyou (Hunt) deny it you are a goddam liar." It is sighificaxlt that vneither' Coble nor Hunt, testified that Kivett had made the last statement. We find, that Kivett in his testimony gave a straight-forward and accurate narration of the facts surrounding this incident. Coble testified that Hunt-had used the term idiot, but was unable to say whether in the plural or singular. Hunt denied using the word in any form, but in view of the foregoing testimony we find that Hunt in fact used the term." In all other respects the testimony of Kivett, Coble, and Hunt concerning this incident is substantially similar. - About 30 minutes later, according to Kivett, Overman summoned him and asked what had happened. Kivett testified that he then told Overman "word for word what had happened." At the end of Kivett's narration Overman said, "All right, you are finished, punch out and get out." n A finding , to the contrary would leave unexplained the occasion for the controversy. We are unable to accept the suggestion advanced by counsel for the respondent during cross-examination that Kivett was attempting a form of self-immolation to get (himself) fired or. suspended , so that ( lie) , could claim that as a Union man (he ) had. been dis- criminated against." 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Overman testified that he had first learned of the incident from Hunt, who had approached him after the argument with Kivett with a request that he be excused from work for the remainder of the day. When asked the reason for his request, Hunt attempted to describe what had happened. That Overman had no clear picture of what had occurred is apparent from the fact that he first sum- moned Coble to him. Only upon being told by Hunt that "me and Coble are straight, it is between me and Kivett," did Overman sum- mon Kivett to him. As Kivett approached him, Overman testified, "he (Kivett) seemed to be excited. more than I had ever seen him before . . . He said `he (Hunt) has told you a, bunch of damn lies.' I said, `Kivett, hush up,' and he kept coming to me." Overman further testified that Kivett continued to curse for a period of two or three minutes and after' being told 'again to "calm down" was finally asked "Kivett aren't you going to hush?" When Kivett failed to comply, Overman testified, he then discharged Kivett. We are unable to credit Overman's version of his conversation with Kivett. Overman at the hearing denied that he had asked Kivett to relate what had occurred between him and Hunt, but on cross-examination admitted that he had previously testified, in a North Carolina unemployment compensation hearing, that he had summoned Kivett and asked him to tell what had happened. Moreover, in view of the fact that Overman did not have a clear understanding of the dispute between Kivett and Hunt, it is reasonable to infer that Over- man did, in fact, request that Kivett 'relate what had occurred. Overman at first testified that he had discharged Kivett because he had failed to comply with the order to "hush," but later added that Kivett's disrespect and use of profanity to Hunt was a factor in the discharge. Kivett's severance slip, however, made no mention of insubordination, disrespect, or the like, but alleged that the reason for his discharge was "disobedience." In view of Overman's contradictory testimony, and in the light of all the circumstances, we find that Kivett was discharged after having told Overman, on request, the substance of the dispute between him and Hunt. It is significant and must be understood that Hunt had not appealed to Overman for disciplinary action, and had not, reported the incident to Overman until questioned as to the reason for his request for time off. Hunt, further testified that he was not angry with Kivett after the dispute and that he was in fact a hunting and fishing companion and close friend of Kivett's, with full knowl- edge of the fact that Kivett had an idiot child, a knowledge which Overman shared. In view of Kivett's long and admittedly satisfactory service with the respondent; in view of the insignificance of the altercation which BLUE BELL-GLOBE MANUFACTURING COMPANY 141 is alleged to have been the basic cause of the discharge; and es- pecially in view of the fact that the respondent's officials were pre- occupied. at the time of Kivett's discharge with the resurgent union movement, as found above ; we find, as did the Trial Examiner, that the reasons alleged by Overman were not the actual factors in Kivett's discharge, but served rather as pretexts for it. As found above, Overman had twice warned Kivett of possible discrimination against him if he persisted in his union membership and activity. We find that Overman discharged Kivett because of such membership and activity. We find that the respondent, by discharging Virgil T. Kivett on February 23, 1939, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the.Union and has thereby .interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. At the time of his discharge on February 23, 1939, Kivett was earning a base rate of $2.80 a day. Kivett has been unemployed since his discharge, and desires reinstatement. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, B and D above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor- disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall, therefore, order it to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act and to restore, as nearly as possible, the situa- tion that existed prior to the commission of the unfair labor. practices. We have found that Virgil T. Kivett was discriminatorily dis- charged. We shall, accordingly, order the respondent to offer him re- instatement to his former or substantially equivalent position, with- out prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay he has suffered by reason of his discharge, by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his discharge to the date of the offer of reinstatement, less his net earnings 12 during said period. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Virgil T. Kivett, thereby discouraging membership in the Union, respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (1) of`the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Blue Bell-Globe Manufacturing Company, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Amalgamated Clothing Workers of America, affiliated with the Congress of Industrial Organizations, or any other labor' organization of its employees, by discrimination in regard to hire or tenure of employment or any term or condition of employment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to . 12 By "net earnings" Is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else-' where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotkerhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings, but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other govern- ment or governments which supplied the funds for said work-relief projects. Republic Steel Corporation, et al. v. National Labor Relations Board, 107 F. (2d) 472 (C. C. A. 3). BLUE BELL-GLOBE MANUFACTURING COMPANY 143 form, join, or assist labor' organizations, to bargain collectively through representatives of their own choosing, and to engage in .concerted activities for the purposes of collective bargaining and other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Virgil T. Kivett immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Make whole Virgil T. Kivett for any loss of pay he has suf- fered by reason of the respondent's discrimination, by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of offer of reinstatement, less his net earnings during said period;. provided that the respondent shall deduct from the back pay due him a sum equal to that received by him for work done in Federal, State, county, munici- pa^ or other work-relief project during the period for which back pay is due him under this Order, and pay any such amount deducted to the appropriate fiscal agency of the Federal, State,, county, municipal, or other governments for such work-relief project; (c) Post immediately in conspicuous places at its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent, will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that-the respondent's employees are free to become or to remain members of Amalgamated Clothing Workers of America, and the respondent will not discriminate against any employee, because of membership or activity in that organization; (d) Notify the Regional, Director for the Fifth Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent engaged in an unfair labor practice, within the meaning of Section 8 (1) of the Act, by keeping a union meeting and meeting place under surveillance.