Elk Brand Mfg. Co.

National Labor Relations Board - Board Decisions

Jan 7, 1981

253 N.L.R.B. 1038 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARI)
Elk Brand Manufacturing Company and Missouri-
Mississippi River Valley District Council, Inter-
national Ladies' Garment Workers Union,
AFL-CIO. Case 9-CA-14407
January 7, 1981
DECISION AND ORDER
B MMBIERS JNKINS. PNIT.I.O, ANI)
TRUIFSI)AI
On September 18, 1980, Administrative Law
Judge Michael O. Miller issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed limited exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.'
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 and
hereby orders that the Respondent, Elk Brand
Manufacturing Company, Cadiz, Kentucky, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
except that the attached notice shall be substituted
for that of the Administrative Law Judge.
Respondent 'las filed limited exceptions to certain aspects of the Ad-
ministratle I.aw Judge's recommended Order Responldent irst contends
that the cease-anld-desist portion f the Order should he restrictel t its
Cadi, Kentucky, facility. where its villatirons f the Act occurred We
agree and. in accordance with oiar usual pratlice. w ill s limit he Order
However, we find no mierit in Respondenit' seconld exceptiilL ItihLt par
l(d) of the Order should be modified to delete lht phrase "all other
union" When an employer has discharged a eiplolyee in violatlien iof
Sec. 81a)(3) fr actisilies ril behalf of a parlicular utLioll. requiring that
employer to cease ad desist frrom discrininallto ry discharges of adheretnts
only of that uniot would be holl Inladlequlate tol secure emnploryee
rights.
Filially, Respondent notes in its third excptionl that tvypographical
error appears in the notice to elployees W'e will ssue L rlew Il t o Ii
correct the error
APPENDIX
NOTICE To EMPI.OYF:i.S
POSTED BY ORDER OF 1HE
NATIONAL LABOR REL ATlIONS BOARD
An Agency of the United States Government
cause of their union activities or in order to
discourage them from supporting or joining
Missouri-Mississippi River Valley District
Council, International Ladies' Garment Work-
ers Union, AFL-CIO, or any other union.
WE WILL NOT tell employees that other em-
ployees have been discharged because of their
union activities.
WE WILL NOT discharge employees because
of their union activities, membership, or sup-
port.
WE WILL NOT in any like or related manner
interfer with, restrain, or coerce our employ-
ees in the exercise of their rights to self-organi-
zation, to form, join, or assist Missouri-Missis-
sippi River Valley District Council, Interna-
tional Ladies' Garment Workers Union, AFL-
CIO, or any other labor organization, to bar-
gain collectively through representatives of
their own choosing, and to engage in other
concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activi-
ties.
ElK BRAND MANUFACTURING COM-
PANY
DECISION
S A I MFN I 01-F H CASE
MICHAI O. M I IHR, Administrative Law Judge: This
case was heard in Cadiz, Kentucky, on April 29 through
May 1, 1980, based on an unfair labor practice charge
filed by Missouri-Mississippi River Valley District Coun-
cil, International Ladies' Garment Workers Union,
AFL-CIO, herein called the Union, on October 5, 1979,
as amended on October 15, 1979, and a complaint and
notice of hearing issued on November 30, 1979, by the
Regional Director for Region 9 of the National Labor
Relations Board, herein called the Board, on behalf of
the Board. The complaint alleges, and the answer denies,
that Elk Brand Manufacturing Company, herein called
Respondent, violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended, herein called
the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and to cross-
examine witnesses, and to argue orally. Briefs, which
have been carefully considered, were filed by all parties.
Upon the entire record, including my careful observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
WE WIL. NOT threaten our employees with
plant closing, loss of jobs, or discharge be-
253 NLRB No. 132
1038
F.lK BRAND MANUFACTURIN£G COMPANY
FINDINGS OF FACT
I. I HI I MPI OYER'S RUSINIFSS ANI) THIE UNION'S
ItABOR ORGANIZATION STATUS-PRII IMINARY
CONCLUSIONS OF L.AW
Respondent is a Kentucky corporation engaged in the
manufacture of men's and ladies' jeans at its plant in
Cadiz, Kentucky. Jurisdiction is not in issue. The com-
plaint alleges and Respondent admits jurisdictional facts
sufficient to establish that Respondent satisfies the
Board's standards for the assertion of jurisdiction over
employers engaged in nonretail enterprises. Accordingly,
I find and conclude that Respondent is, and has been at
all times material herein, an employer engaged in com-
merce, within the meaning of Section 2(2), (6), and (7) of
the Act.
The complaint alleges, Respondent admits, and I find
and conclude that the Union is, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR ABOR PRACTICES
A. Events Preceding the Current Union .4ctivity
Union activity among the 200 or so employees of Re-
spondent's Cadiz plant began around the latter part of
August 1979.1 Even before its advent, however, Re-
spondent had addressed the prospect that it might occur.
As part of a communications training program, its super-
visors had been given some instructions in how to talk to
the employees about such "touchy" subjects. As early as
March, they had been given a list of actions, entitled
"What the supervisors cannot do," 15 in number, which
basically described such unfair labor practices as surveil-
lance, interrogation, threats, and discriminations
About the same time as that list was given to the su-
pervisors, Respondent published its employee manual.
This manual, dated February 1979, had been in prepara-
tion for some time. Included in it was the following
statement on unions:
INFORMATION ON UNIONS
Elk Brand is union free and, as such, employees
deal directly with management with the full right to
think and speak for themselves. It is not necessary
nor will it ever be necessary for you or anyone else
to belong to a union in order to be treated fairly at
our company. We are convinced that our employ-
ees prefer to deal directly with us rather than
through a union. Our employees have made prog-
ress for many years because we have been able to
work together and work in harmony. Our philos-
ophy is to do everything possible to continue and
improve this excellent working relationship. It is
quite possible that you may be approached by union
representatives in an effort to encourage you to join
i All dates herein are in 1979 unless otherwise specified.
2 This list did not describe what might happen to the Company or to
the supervisor if the inpermissihle statements were uttered The lilt, Resp
Exh 3. appears to be taken from some larger distribution. The record
does not show the context from which it was taken
them. We ask that you take the time to look at the
motives of the person interested in promoting a
union and make every effort to obtain the whole
truth. Therefore, if and when you are so ap-
proached, we would appreciate your seeking advice
and information from your supervisor on any ques-
tions you may have on this subject.
Also included in the manual were two classes of plant
rules, those which "subject [the employee] to the disci-
plinary action up to and including dismissal," and those
which "may result in being sent out for consideration for
possible discharge on the first offense." Included among
the former were such things as horseplay, excessive tar-
diness or absenteeism, wasting materials or time, gam-
bling, violating safety rules, "threatening, intimnidtirng, co-
ercing or interfering Kwith fllow employees on company
property,," (rule 12), failure to follow instructions. damage
to company property, deliberate restriction or overstat-
ing of output, working under the influence of drugs or
alcohol or possession of same, or sleeping on the job.
Listed first and second among the 12 violations which
could result in discharge for the first offense were rules
24A and B:
A. Solicitation for membership, collection of dues
or fees, or for the purpose of sale of tickets or other
items or other like activity during the employees'
working time or which interferes with other em-
ployees during their worktime.
B. Unauthorized posting of any material on bulle-
tin boards or any other place in the plant without
prior approval of the manager; and distribution of
literature of any kind in work areas at any time.
Other offenses subject to the maximum penalty included
the sale of heroin and other drugs to company employ-
ees or the use of hard drugs on company property, theft
and other violations involving dishonesty. possession of
firearms, explosives, and other weapons, fighting and
threatening, striking, or using profane or abusive lan-
guage to a supervisor.
The no-solicitation and no-distribution rules, while not
previously published in this form to the employees, had
been included in the supervisors' manual distributed at
least 6 months prior to February 1979, to which employ-
ees had been given access.
The employee manual also provided that: "It is the
policy of the company that discharge is considered only
as a last resort."
B. The Union Activity and Elk Brand's Response
1. Alleged 8(a)(l) violations
The union activity, it appears, began with visits by
union representatives to employees' homes. One of those
visited, who signed an authorization card and subse-
quently accompanied the union organizer on at least
some of his visitations, was Sophia Lander, the alleged
discriminatee herein.
The first union meeting was held at a union hall in
Hopkinsville, Kentucky, some 15 or 20 miles from the
1039
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cadiz plant, and about 1-1/2 miles from Respondent's
Hopkinsville plant and offices. The meeting, which
began at 7 p.m., was attended by employees from both
plants. During the course of this meeting, four employees
observed Respondent's president, Andrew Marianelli,
drive by the union hall along the four-lane road on
which the union hall, separated from the road by a small
parking lot, stood. These employees described Marianel-
li's automobile as driving by in time with the flow of
traffic or slower between two and five times and be-
tween 5 and 15 minutes apart. Three of the employees
positively identified Marianelli and his car.
Marianelli specifically denied engaging in surveillance
of his employees' union activities. However, he could
not say with any degree of certainty that he did not
drive by the union hall on the evening of September 6.
He was in the Hopkinsville area on that day and the
union hall was along the route which he frequently took
from the offices at Hopkinsville to the motel in which he
stayed when in that area. He testified that it was his eve-
ning practice to go from the motel to a supermarket to
pick up the ingredients for his rather spartan dinner and
then to drive around in the evening listening to tapes of
music or business information. He denied knowledge of
the union meeting scheduled for September 6 and there
was no evidence on this record that that meeting was, at
least at that point in time, a matter of common
knowledge.Based on the foregoing I must conclude that,
while the employees' observations of Marianelli render
his conduct on that night suspect, that suspicion does not
rise to a level which would sustain the General Counsel's
burden of proving surveillance of the employees' union
activities, as alleged in the complaint. See Dove Coal
Company, 150 NLRB 1142 (1965). Cf. W. H. Scott d/b/a
Scott's Wood Products, 242 NLRB 1193 (1979), and Emily
Tweel Jacobs, Russell Jacobs and Emil Tweel d/b/a L.
Tweel Importing Co., 219 NLRB 666 (1976), wherein
findings of unlawful surveillance were reached on evi-
dence establishing that, unlike here, the employers inten-
tionally went out of their way to observe the employees'
union activities.
On September 15, Respondent held a meeting of its su-
pervisors, conducted by its labor relations counsel, in
regard to the union campaign. All of the supervisors
were given a sheet detailing five steps for "explaining
facts about the union" and a prepared statement to dis-
cuss with the employees concerning the signing of union
authorization cards. The steps included relaying to the
employees, at their work stations, information which the
supervisors felt they should know about the Union,
asking the employees if there were any questions, re-
sponding "openly" to questions, securing and providing
additional information if requested, and soliciting the em-
ployees' support against the Union. The discussion sheet,
given to the supervisors as the basis for these conversa-
tions, read as follows:
Signing a union card is your personal business, but
you should be careful to get all the facts before you
sign. The union may try to show these cards to the
company to get in without an election, or a signer
may have to testify on the witness stand in a labor
board hearing as to whether or not he or she signed
a card. Read the bulletin board to get more infor-
mation on this.
On the bulletin board were notices concerning the sign-
ing of union authorization cards. Those notices, accord-
ing to the uncontradicted testimony of Diana Lane, a
witness proffered by Respondent, directed employees
who were harassed or bothered to contact management. :'
The supervisors were instructed to speak with each of
their employees, at their work stations, during working
time and, at least for those supervisors who testified
herein, those instructions were complied with. At issue,
however, is whether those supervisors adhered strictly to
the language of Respondent's discussion sheet or failed
to do so in ways contravening the requirements of the
Act.
a. Conduct attributed to Charles Ezell
On September 15, maintenance Foreman Charles Ezell
spoke with employee Diana Still, while repairing her ma-
chine. Still told Ezell that she had heard he was going to
go to Georgia. Ezell replied, without further elaboration,
"Before long, we'd all have to go somewhere else to get
other jobs." Similarly, Ezell told her that he was inter-
ested in buying a particular car, "except the way the
girls were carrying on that the factory would close
down and then he would be stuck with a $3,900 car and
he would have no way to pay for it."4
In the context of the then-current union activity and
Respondent's knowledge thereof, as evidenced by its
instructions to the supervisors on that same day, I find
that Ezell's statements to Still were but thinly veiled
threats of plant closure in the event that the Union
became the employees' collective-bargaining representa-
tive. I conclude that by these statements Respondent has
violated Section 8(a)(l) of the Act.
About September 18 or 19, while repairing her ma-
chine, Ezell told employee Susan Newby, "I hear we
have some organizing going on." When she disclaimed
knowledge, he proceeded to tell her that "unions did not
do anything but make a bunch of promises they couldn't
keep. All they wanted was your money and that unions
were fine for people like steelworkers or carpenters or
people in that order of business . . . if the union did
:' The General Counsel did not allege that the language of that notice,
to the extent that it encouraged employees to report the identity of card
solicitors, violated Sec. 8a)(1) of the Act See. however, W FI fall
Printing Company, 250 NLRB 803 (19X80), and cases cited therein, where-
in the Board held that similar language had "the potential dual affect of
encouraging employees to report to Respondent the identity of union
card solicitors who in any way approach employees in a manner subjec-
tively offensive to the solicited employees, and of correspondingly dis-
couraging card solicitors in their protected organizational activities" in
violation of Sec. 8(a)(1) of the Act
' Ezell admitted speaking to Still at her machine, but denied threaten-
ilig her or anyone else with plant closure He alleged that she asked him
what he thought would happen if the Company went union and he re-
plied only that he did not know. Still impressed me as a credible witness
with a very firm memory of the events in question. I was not similarly
impressed with the testimony of Ezell or with his explanation of why he
could not have threatened an employee with plant closure. i.e., that he
had no way of knowing what would happen if a union came in Accord-
gily, I find that the statements occurred as related by Diana Still.
1040
ELK BRAND MANUFACTURING COMPANY
come into Elk Brand that there would he . . . a lot of
very sorry people and Elk Brand would be no more if
the union came in." She acknowledged, on cross-exami-
nation, that Ezell told her that the garment industry was
very competitive and not capable of dealing with a
union, and that, if the Union came in, a garment industry
employer such as Elk Brand could not afford to pay
union scale.5
The general Counsel alleged that the foregoing state-
ments constituted unlawful threats that the selection of a
collective-bargaining representative would be futile and
would result in plant closure in violation of Section
8(a)(l) of the Act. Respondent, however, contended that
even if, as here, Newby's testimony were credited,
Ezell's statements fell "under the protected speech cate-
gory of Section 8(c) of the Act" as a prediction. That
issue is determined for us by the language of the Su-
preme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575, 617, 618 (1969), which holds:
Thus, §8(c) (29 U.S.C. §158 (c)) merely implements
the First Amendment by requiring that . . . the ex-
pression of "any views, argument, or opinion" shall
not be "evidence of an unfair labor practice," so
long as such expression contains "no threat of
reprisal or force or promise of benefit" in violation
of §8(a)(l) .
Any assessment of the precise scope of employer
expression, of course, must be made in the context
of its labor relations setting. Thus, an employer's
rights cannot outweight the equal rights of the em-
ployees to associate freely, as those rights are em-
bodied in §7 and protected by §8(a)(I) and the pro-
viso to §8(c). And any balancing of those rights
must take into account the economic dependence of
the employees on their employers, and the neces-
sary tendency of the former, because of that rela-
tionship, to pick up intended implications of the
latter that might be more readily dismissed by a
more disinterested ear.
The Court goes on to state, in oft-quoted language, that
an employer:
. . . may even make a prediction as to the precise
effect he believes unionization will have on his com-
pany. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably
probable consequences beyond his control or to
convey a management decision already arrived at to
close the plant in case of unionization . . .. If there
is any implication that an employer may or may not
take action solely on his own initiative for reasons
unrelated to economic necessities and known only
s Ezell testified that Newby asked him whether the plant would close
and that he replied, only, that he did not know. He admitted possibly tell-
ing employees that the Company could not afford to deal with the Union
and explaining that the profit margin In that industry is not large Noting
the extent to which Ezell admitted aspects of the conversation and the
consistency between what Still credibly described and Newhy's testimo-
ny, and considering their comparative testimonial demeanors, I credit
Newby
to him, the statement is no longer a reasonable pre-
diction based on available facts but a threat of re-
taliation based on misrepresentation and coercion,
and as such without the protection of the First
Amendment. We therefore agree . . . that
"[c]onveyance of an employer's belief, even though
sincere, that unionization will or may result in the
closing of the plant is not a statement of fact unless,
which is most improbable, the eventuality of closing
is capable of proof."
In this case, there was no "prediction . . . carefully
phrased on the basis of objective fact." Respondent
could not have known, at the time Ezell made these
statements, whether the Union, if it were successful in its
organizing attempts, would seek wage increases which
would threaten its economic viability. "In any event
advent of the Union would have meant only that [Re-
spondent] had to bargain over wage demands, not that
[it] had to grant them .... " Highlift Equipment Co., A
Division of the Highway Equipment Company, 224 NLRB
918 (1976); Wausau Steel Corporation, 160 NLRB 635,
640 (1966), enfd. in this regard 377 F.2d 369 (7th Cir.
1967).
Accordingly, I find that, by Ezell's statements to
Newby, Respondent unlawfully threatened plant closure
if the Union came in in violation of Section 8(a)(1) of the
Act. 6
On September 27, Ezell again spoke to Still at her ma-
chine. They discussed Lander's discharge, infra, and
Ezell told Still that he could not believe the "union
mess." He questioned why the employees could not be
satisfied with the jobs they had and suggested that she
would be surprised to know which women were in-
volved with the Union. He described how the employees
were "getting together, whispering and having secret
meetings at night." When she asked how he knew of
this, he replied "that he wasn't stupid and he had his
ways of knowing."7
The General Counsel contended that this statement
constituted the unlawful creation of the impression of
surveillance. I agree. In South Shore Hospital, 229 NLRB
363 (1977), the Board pointed out that the gravamen of
this violation is the leading of employees to believe that
their union activities have been placed under surveil-
lance. Ezell's statement, that "he had his ways of know-
ing," points precisely in this direction. Respondent con-
tended that, even if, as here, Still's testimony is credited,
Ezell's statements were not violative because the union
activity within the plant was a matter of common knowl-
edge, his statement was a matter of personal opinion, and
Still's response shows that she was not afraid of Ezell.
As to the first point, the record contains no evidence to
I I do not find that Ezell's statement additionally violated the Act as
an expressiion that selection of the Union as their collective-bargaining
representative would be a futile gesture The cases st) holding generally
insolce statements t the effect that, if certified. Respondent would either
refuse to bargain with the union or would bargain in had faith See, for
example. merican Medical Insurunme Compunv. Inc., 224 NLRB 1321.
1328 2 (197t6). and Red Barnt Sytrm., Inc.. 224 NLRH 1580. 1587 (1976)
7 Ehzell denied mlaking these statements toi Still For the reasons previ-
ously stated, I credit Still
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establish that the union activity, particularly the names
of those attending "secret" union meetings, was a matter
of common knowledge. It is also clear that Ezell's state-
ment was not a matter of opinion objectively stated. Fi-
nally, whether Still was or was not fearful of Ezell is ir-
relevant. "It has long been recognized that the test of in-
terference, restraint, and coercion under Section 8(a)(1)
of the Act does not turn . . . on whether the coercion
succeeded or failed . .. . Rather, the test is whether the
supervisor's conduct reasonably tended to interfere with
the free exercise of the employee's rights under the Act."
Florida Steel Corporation, 224 NLRB 45 (1976). Ezell's
statement clearly had such a tendency.
b. Conduct attributed to Christine Harris
On September 15, after participating in the supervisory
meeting, Quality Control supervisor Christine Harris
spoke to each of the 12 employees working under her su-
pervision, including Pansy Campbell. She called Camp-
bell away from her work station and either read the
company statement regarding the signing of union au-
thorization cards to Campbell or had Campbell read it
herself. Then, according to Campbell, Harris asked her if
she "had been approached by anyone," if she "had any
questions about signing a card" and about what card
signing meant, and told Campbell "to come to her if" she
was "approached by anyone . . about the union."
Harris also stated, Campbell testified, that she hoped the
Union would not cause a slowdown of the work or lay-
offs. Harris denied asking anyone whether they had been
approached by the Union.
Campbell further testified that Harris again spoke to
her about the Union on October 3 while she was work-
ing. At that time, Harris allegedly asked her whether she
knew that the Union was a serious thing to get into, and,
telling Campbell that a lot of people had been ap-
proached by the Union, asked Campbell once again
whether she had been so approached. She allegedly
asked Campbell if she knew what it meant to sign a
union card and Campbell replied, "No, I hadn't signed a
union card." Harris denied speaking to Campbell about
the Union at any time after September 15, and specifical-
ly denied the statements and questions attributed to her
by Campbell.
Neither of these witnesses were entirely convincing.
Campbell, it appears, was confused about which docu-
ment Harris gave her to read on September 15. She de-
scribed, in apparent error, language from the Company's
statement of position on unionization as found in the em-
ployee manual rather than the shorter statement on the
signing of union cards which had been given to the su-
pervisors on that day for that specific purpose. On cross-
examination, she denied that Harris gave her the infor-
mation which was contained on the supervisors' authori-
zation card information sheet. Considering the timing of
these discussions, and the testimony of other witnesses, it
appears that Campbell failed to accurately recall the sub-
stance of this conversation. Based on the foregoing, and
my impressions of them as witnesses, I must conclude
that Campbell's recollection was less accurate than that
of Harris.8
Accordingly, I find that the General Counsel has
failed to sustain his burden of proving that Campbell was
unlawfully interrogated by Harris, as alleged in the com-
plaint, and shall recommend that those allegations be dis-
missed.
On October 10, approximately 26 employees came to
work wearing ILGWU buttons. Campbell was observed
doing so by Harris, as were other employees. On that
same day, Harris spoke to Campbell about her produc-
tion. As a quality checker, Campbell was supposed to
check the proper completion of five operations that go
into the manufacture of Respondent's jeans by inspecting
each of those operations on 13 pairs of jeans out of about
100 bundles a day (a bundle consisting of 50 or more
pairs of jeans). In practice, however, Campbell had
never attained this level of performance; she estimated
that she was able to inspect only two operations, on the
average, in her representative sample from each of the
bundles. Prior to October 10, Campbell had moved back
and forth along the production line to do her inspection;
on October 10, according to Harris' uncontradicted and
corroborated testimony, Campbell's operation was
changed to permit all of the bundles to come by her
work station after all five operations had been complet-
ed, and Campbell was told to inspect each of the oper-
ations. On the following day, October II, Plant Manager
Tom Kellim asked Campbell to write down the amount
of bundles she had done for each operation. He had
never previously made this request of her. Campbell
complied until October 15. At that time, in order to pre-
vent the inspection procedures from holding up other
work, Campbell was told to go back to the way she had
previously been doing her inspection work. At no time
was she disciplined for failing to achieve the acknowl-
edged inspection goal.
The General Counsel contended that the change in
Campbell's work, to increase the number of inspections
she was making, was a discriminatory response to her
wearing of the union button. Respondent denied such
motivation, and I find that the evidence fails to sustain
the General Counsel's contention. In so concluding, I
note that there was no reference to the union button by
any of her supervisors. I further note both Campbell's
apparent confusion as to just what was expected of her
as an inspector and her acknowledgement that what had
been asked of her on October 10 was no more than what
she had been expected and told to do all along. More-
over, Respondent attempted, by moving her work sta-
s In so concluding, I have not relied on the communication training
program in which Respondent's supervisors participated as establishing
allny sor of meaningful probability that Harris or any of the other super-
visors would refrain from coercive threats or interrogations. The pro-
gram, in the main. swas not geared in that direction: the list of subjects
about which superisors were not supposed to talk was distributed sever-
a; months prior to the union campaign and was not, it appears, reiterated
or reinforced at the onset of the campaign Moreover, the supervisors
were aware of Respondent's opposition to unionization and were specifi-
call directed to go out and give that message to all or the employees. In
thse circumstances, it can not be said that Respondent's supervisory
training program made the utterance of unlauvful remarks by individual
supervisors any less probable
1042
ElK BRAND MANUFACTURING COMPANY
tion, to make it possible for her to comply with its re-
quest. Accordingly, since the record does not establish
the necessary nexus between the work order given
Campbell and her union activity, I shall recommend that
this allegation be dismissed.
c. Conduct attributed to Louis Herndon
Kathleen Snyder and Bonnie Butts were working in
department 3 under the supervision of Louise Herndon.
Following the supervisors' meeting of September 15,
Herndon spoke to all of the employees in her depart-
ment, including Snyder and Butts.
Snyder's conversation with Herndon occurred at her
machine, during working time, about September 18.
Herndon told her, Snyder testified, that "there was talk
about a union going around and she didn't know wheth-
er or not I had been approached . . . that unions were
not trustworthy, they were only out to get your money."
Herndon told Snyder about another plant in the geo-
graphical area where the Union had been voted in and
subsequently voted out because it failed to accomplish
anything, and told her that the Union could promise
them anything but Elk Brand could only do so much.
When Snyder asked Herndon where the Company stood
on the question of the Union, Herndon allegedly told her
that they were against it and "that if the Union came in,
they would do either one of two things. Either close the
doors and walk away from it [or] they would fire us all
and hire new employees." Snyder denied, or could not
recall, that Herndon told her the things that were con-
tained on Respondent's authorization card discussion
sheet.
Herndon spoke with Butts at her work station, during
worktime, on September 20. Butts recalled Herndon's
telling her that she knew that Butts had heard rumors
about a union trying to come in and saying that, if one
came in "and we went on strike, that by law, they could
fill our machines and replace us and we would be out of
a job, and . . . if the Union came in, there would be a
lot of changes and they would be changes that we
wouldn't like." Butts acknowledged that Herndon's state-
ment to her about the effect of the strike was in response
to a question she had asked.
Herndon testified that she followed the Employer's
discussion sheet in talking to both Snyder and Butts.
Snyder, she said, asked her what would happen if the
Union were voted in, to which Herndon replied that her
support for the Company or the Union would have no
effect on her job as far as the Company was concerned.
She specifically denied threatening that the Company
would close, discharge, and replace the employees. Simi-
larly, she testified that, in response to Butts' question
about the effect of a strike, she replied that the law per-
mitted an employer to hire new employees to fill vacant
machines and that the striking employees would not nec-
essarily get their jobs back. She denied threatening unfa-
vorable changes in working conditions when talking
with Butts.
On balance, I find that the testimony of Snyder and
Butts is more credible than that of Herndon. In so con-
cluding, I note that the testimony of each, independently
given, tends to corroborate that of the other. They both
described statements by Herndon predicting adverse con-
sequences stemming from unionization, contrary to the
instructions which Herndon claimed to have followed re-
garding discussions with employees. Moreover, I note
that on cross-examination Herndon specifically denied
making certain statements to the employees, testimony
which contradicted statements made in her pretrial affi-
davit. That same affidavit, which purported to describe
the essence of her conversations with the employees in
her department in mid-September, also varied in other
respects from her testimony. For these reasons, and, ad-
ditionally, upon consideration of the comparative de-
meanors of these witnesses, I credit Snyder and Butts.
Based on the foregoing, I find that Herndon's state-
ment to Synder, to the effect that the Employer would
either close the plant or discharge and replace all em-
ployees if the Union came in, and her statements to
Butts, to the effect that the employees would lose their
jobs if the Uni8n came in and the employees went on
strike and that there would be changes the employees
would not like, constituted impermissible threats in viola-
tion of Section 8(a)(l) of the Act. Clearly, these were
not statements of opinion or prediction based on objec-
tive fact such as would be protected by Section 8(c) of
the Act. Gissel, supra.
Respondent argued that Herndon's statements, coming
in response to questions by the employees, were the
result of "baiting of the supervisors with the anticipation
of a strong antiunion response." Assuming, arguendo,
that such baiting would be a defense against an otherwise
meritorious allegation of a coercive threat s as argued by
Respondent, the questions asked by Snyder and Butts do
not rise to such a level. Indeed, the employees' questions,
including those of Snyder and Butts, were solicited by
the supervisors on the direction of Respondent. It is
"bootstrapping," at best, for Respondent to urge its em-
ployees to question their supervisors about the union
campaign, and then to argue that the supervisors' coer-
cive responses may not be found violative because the
employees accepted Respondent's invitation to ask ques-
tions.
Accordingly, I find that, by the threats uttered by
Louise Herndon to both Snyder and Butts, Respondent
has violated Section 8(a)(1) of the Act.
d. Conduct attributed to Marilyn Tramel
Like the other supervisors, Marilyn Tramel, supervisor
of department 5, spoke with her employees about the
union campaign in the days following September 15. She
spoke with Diana Still on September 19, while Still was
working, and told Still that she and other supervisors
had seen the employees gathering in groups and holding
discussions and that she had a good idea of what they
were discussing. Saying that she had asked Plant Man-
ager Kellim if she could give her opinions to the em-
ployees in regard to the Union and been told that it was
okay, Tramel proceeded to tell Still that, "in her opinion,
unions were crooks and gangsters and all they were out
' Se (ol,llr t .tanucturrlrCng (o. Inc v .N I. R B.. 385 F 2d 998 (2d
Clr 1967), r ring In parl 162 NI R 6h8(1
I(43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for was your union dues." Still disputed this and asked
whether the employees would be fired if they signed
union cards. Tramel replied, stating "that if the Union
was to come into our plant that they felt like all of our
jobs would be jeopardized." Still asked whether the
Company would lose money closing the plant down.
Tramel answered, saying that Respondent contracted to
make its jeans at a certain price; if they had to pay more
money for insurance, wages, and other benefits, they
could not make pants at that price, and they would prob-
ably have to close the plant down. In response to Still's
final question, Tramel said that Kellim was aware of her
opinions.
Tarenda Sholar had heard that the supervisors were
talking to the employees about the Union and asked
Tramel, her supervisor, whether Tramel was going to
talk to her about it. Tramel told her that she did not
think that the Union was necessary or could help the em-
ployees, stating that it could make promises of increased
benefits but it could not guarantee to carry those prom-
ises out. She told Sholar that employees were signing
cards and Sholar asked her whether she thought that
Sholar had signed a card. Tramel replied that she knew
Sholar had. When asked how she knew, Tramel replied
that the company "knows everyone who had signed the
card and is for the Union." Sholar denied signing a card
at that time. At the conclusion of their conversation,
Tramel referred Sholar to the notice on the bulletin
board regarding the signing of authorization cards and
told her, as she had told Diana Still, "that the union
people were nothing but murderers, gangsters, and
thieves."
On September 20 Tramel approached Sophia Lander
and, as Lander continued to work, asked Lander wheth-
er she had heard about the Union. Lander said, "Yes."
Tramel, voicing what Lander characterized as opinion,
said that "the Union is made up of crooks and commu-
nists . . . [and] that she [Tramel] liked her job and if a
union came in, she [Tramel] would lose her job." In con-
clusion, Tramel told Lander that they did not agree on
the union matter but that that was "okay because
[Lander] was a smart girl and would do the right thing."
Tramel admitted talking with each of these employees,
but denied making the statements they attributed to her.
Still, Sholar, and Lander all impressed me as witnesses
attempting to recall and describe the incidents which oc-
curred both accurately and fully. Moreover, although
they testified independently of each other, and as to sep-
arate incidents, the similarities in what they reported
tended to corroborate their testimonies. I was not as fa-
vorably impressed with Tramel's testimony.
Crediting Still, Sholar, and Lander, I find that certain
of Tramel's statements constituted unlawful threats and
creation of the impression of surveillance in violation of
Section 8(a)(l) of the Act. As previously discussed in
regard to the statements by Ezell and Herndon, Tramel's
references to the possibility of plant closing, not being
based on objective fact, fall outside the ambit of Section
8(c), the free speech provision of the Act. Gissel supra. o
'o Her statement to Lander, to the effect that if the Union were to
prevail she, Tramel, would lose her job, I would not find to be coercive
It did not carry any clear implication that the Employer as so adamant
Tramel's statement to Sholar, to the effect that the Com-
pany knew all of the employees who had signed union
cards or who were for the union, clearly conveyed the
message that Respondent was engaging in surveillance of
their union activities. There was no evidence that, as of
the date of this conversation, the employees were openly
engaging in union activities or were publicly proclaiming
their support. Company knowledge of that activity and
support, if it existed, could only have come from surveil-
lance or from the reporting of such activity by fellow
employees, which, it must be recalled, Respondent solic-
ited through its bulletin board notices and its policy
statement regarding unions. " To inform an employee
that an employer will know whether that employee has
engaged in union activity must inherently discourage the
employee from so engaging.
Accordingly, I find that by threatening employees
with plant closure and loss of jobs and by creating the
impression that their union activities were being watched
by or reported to the Employer, Tramel's statements vio-
lated Section 8(a)( ) of the Act.
2. The discharge of Sophia Lander
Sophia Lander had worked for Respondent, as a ticket
tacker in Tramel's department, for 2-1/2 years. She was
a good employee, producing at 130 to 150 per cent of
the standard for her job; she had not been disciplined for
any work deficiencies since the completion of her proba-
tionary period. Her job required that she leave her work
station between 15 and 30 times a day to pick up materi-
als at various points in the department and it was her
practice, when doing so, to greet her fellow employees
in a friendly manner. It appears that she was a popular
employee. As previously noted, she signed a union card
on August 30 and assisted the Union's organizer in
making some house calls. She credibly denied engaging
in any union activity during working time and her denial
was supported by the testimony of other employees
(except for that of Diana Lane, discussed infra). She was
among the employees whose work was filmed by the
Company in 1979 for the preparation of a training film.
Shortly after lunch on September 26, Tramel told
Lander to get her purse and come to the office. She
asked what was wrong, suspecting that there might be
illness in her family. Tramel told her that Plant Manager
Kellim wanted to talk to her. 12 Once in the office,
Kellim told Lander that she "was being sent home for
possible termination for violation of [company] rule[s]
because of . . . union activity and for passing out union
cards up and down the line and for harassing an employ-
ee." He gave her no further details. She asked Kellim
who had been harassed, and he refused to tell her. She
about keeping the Union away that it would close the plant or discharge
supervisors who failed to effectively combat it
' Diana Lane testified that Tramel spoke to her about the signing iof
union cards and asked "if anybody had said anything: for me to find out
what they were talking about because I had just recently been there"
Tramel then referred Lane to the notice on the bulletin board regarding
card signing.
2 According to Tramel. whose testimony as corroborated by that of
Linda Marquess. Lander asked Tramel whether she was going to be
fired l.ander denied asking that question
1044
ELK BRAND MANUFACTURING COMPANY
was told to report back on September 27 for his determi-
nation.
After Lander left the plant, Diana Still asked Tramel
what had happened. Tramel told her that Lander had
been sent home for possible termination because of rule
violations; that Lander had been engaging in union activ-
ities. Tramel said that she hated to see the union mess
come in and professed affection for Lander.'3
On September 27, Kellim called Lander and postponed
the scheduled meeting. In the course of this conversa-
tion, according to Lander, he told her the charges were
very serious, which was why it was taking so long for a
decision to be made. She told him that someone was
lying about her and she wanted to straighten it out. He
told her that she would have her opportunity for rebut-
tal, and he would then determine who was lying and
who was telling the truth. Kellim told her that she was
falling into the hands of the wrong people; she denied it.
In a second conversation, moments later, he told her not
to come in to pick up her check until Friday, and repeat-
ed that these were serious charges. He asked her if she
wanted to quit and she refused.
Lander returned to the plant at 4 p.m. on October 1.
In the office, Kellim told her that he had found the facts
to be true and that he was going to terminate her as of
that day. She was given a document, entitled "Record of
Conference with Employee," which, according to
Kellim, had been filled out progressively from September
27 to that time. It stated that the conference was called
because of violations of rules 12 and 24a. For facts it
stated:
Sophia Lander was observed by supervisor talk-
ing to other employees during her worktime and
the worktime of others on matters not related to her
work. An employee told her supervisor that Sophia
Lander had asked her (the employee) whether she
had signed a union card and when receiving a nega-
tive response had threatened the employee that if
she did not sign a union card she would lose her
job. This discussion occurred during Sophia
Lander's working hours and the working hours of
the employee. This information was reviewed with
the employee on 9/28/79 by phone.
Leading to this chain of events, according to Respond-
ent's witnesses, was the following: "On September 26,
Diana Lane had come to Tramel and, according to
Tramel, stated that she had been threatened, that Lander
had told her 'if I don't sign a union card that I won't
have a job."' 4
la Tramel claimed that, when Still asked what had happened to
Lander, she replied only that she could not talk about it then Nofing that
the statement. as related by Still, is consistent with what had just tran-
spired in Kellim's office, and further noting my impression of Still as a
thoroughly credible witness, I credit Still's testimony.
14 According to Lane. on the afternoon of September 25, while Lane's
machine was shutdown for repairs, Lander had called her over and
talked to her while Lander's machine continued to run. Lander asked her
if she had been approached or had heard about a union; Lane replied in
the negative. Lander then asked her if she had signed a union card. When
Lane again replied, "No," Lander allegedly said, "Did you know you
could lose your job if you don't sign one"' Lane replied, "I can't lose my
job. I've got better plans . to move back to Montana " Lane testified
Tramel immediately went to Kellim, who asked her
whether Lane would sign a statement about the incident.
Pursuant to his request. Lane was brought into Kellim's
office. The statement which she gave was essentially
consistent with her version of the alleged September 25
incident, as described in footnote 14, above. In it, how-
ever, she said that Lander asked her if she was going to
sign a union card and, when she said no, "kept asking
[her] why."'5 After taking Lane's statement, Kellim
called Lander into the office. According to his testimo-
ny, he told her that she had violated rules 12 and 24a
and that he had to send her out for possible termination.
When he asked if she had any questions, she merely
shrugged her shoulders. He denied that Lander was
scheduled to return for his final determination on Sep-
tember 27, stating that it was to be the 28th, but admitted
that he called her to postpone that meeting because he
needed more time "to gather all the facts." He denied
the substance of Lander's testimony regarding the Sep-
tember 27 telephone conversation, particularly her state-
ment that he said she was falling into the wrong people's
hands and that he asked her whether she wanted to quit.
According to Kellim, when Lander returned on Octo-
ber 1, he told her that he had found it to be true "that
she had violated rules 12 and 24a and [he] had no re-
course but to terminate her." He then allowed her to
read the record of the conference.
At no time did Kellim specifically confront Lander
with Lane's accusation. Neither did he, or anyone else
on behalf of management, question any of the other em-
ployees or supervisors who were present when the al-
leged conversation took place.
In a letter of October 11, responding to Lander's claim
for unemployment compensation, Kellim stated that
Lander was discharged for violation of rule 12 (threaten-
ing or harassing employees). No reference was made to
rule 24a (the no-solicitation rule). Similarly, no reference
was made to lost production or insubordination. Howev-
er, at the hearing herein, Kellim testified that the loss of
production and Lander's alleged insubordination 6 were
that she was not fazed by his conversation She mentioned it to none of
the employees or supervisors who were working near her at that time
According to Lane, on the fllowing morning she told Tramel "that
Sophia had talked to me and she said that I could lose my job if I didn't
sign one."
'1 On October 1 I. Respondenlt Itk a second signed statement from
Lane which repeated her alleged conversation with Lander on September
25 Contained within that second statement was the following additional
statement: "The Company requested this statement only after I had al-
ready reported to management a union threat and asked for their help in
protecting myself." Lane, however, admitted that she had never felt that
she needed protection andti had never asked for Respondent's protection
Respondent's explanation, that the reference to protection stems from a
different incident, one in which someone allegedly attempted to injure
Lane with an automobile, is totally incredible. The October 11 statement
makes no reference to any such alleged incident, which was an assault
unconnected with any union activity, not a "threat," even assuming that
it occurred.
I This is an apparent reference to Tramel's testimony to the effect
that during September she had observed Lander talking to employees
more frequently than previously and had twice admonished her about
this without success. Lander denied being so admonished and claimed
that Tramel only asked her how she could maintain her production and
have enough time left for going to the washroom. Tramel, in the state-
Continused
1045
DECISIONS OF NATIONA L.ABOR RF.LAIIONS BO()ARD
also motivating factors. He claimed, at that point, that
the violations of rules 12 and 24a were the bases for the
discharge, both arising from Lander's alleged statement
to Lane, and that the lost production and insubordination
to which he referred were "contributing factors." When
asked why he made no reference to the alleged violation
of the no-solicitation rule when replying to the unem-
ployment compensation claim, he explained that, had it
not been for the threat, he doubted whether Lander
would had been discharged.
Considering all of the foregoing, I credit the testimony
of Lander as against that of Lane. Lander carefully
avoided engaging in union activity during worktime; that
fact is established by Lander's testimony and by the testi-
mony of other employees. Lane, moreover, was openly
opposed to the Union; it would have been improbable
that Lander would have so approached Lane when she
refrained from approaching those whose union attitudes
were either neutral or more positive. I note, too, that
Lane did not mention the alleged threat to any of the
employees or supervisors who were working around her
at the time she claimed that it occurred; neither did she
mention it to her supervisor, Tramel, until well into the
morning hours of the following day. This is not the con-
duct one would expect of an employee threatened by an-
other employee. Additionally, I note Lane's willingness
to sign statements on behalf of management portraying
herself as one who felt so threatened that she had to
come to management and seek its protection. Even Lane
admitted that she perceived no such threat and sought no
protection. This compliance with management's over-
blown description of the alleged event casts doubt on the
veracity of her testimony as a whole. Further doubt is
raised when it is noted that Lane was a marginal em-
ployee, recently hired and already reprimanded for a
high rate of tardiness or absenteeism. Yet, subsequent to
Lander's discharge, Lane's job position in the plant im-
proved and she became a close friend of Tramel's, even
living in Tramel's home. Finally darkening the shadow
of doubt is Lane's admission that, several days prior to
the alleged incident of September 25, Tramel had asked
her whether anybody had said anything to her about
union cards and suggested that she find out what they
were talking about. Under all of these circumstances, I
conclude that Lander's credible denials must be pre-
ferred over the highly suspect version of events de-
scribed by Lane.
Similarly, I find that I can not credit the testimony of
Tramel or of Kellim to the extent that it conflicts with
that given by Lander. Aside from the aspects of their de-
meanor which I have carefully considered, I note that
ment which she gave to Kellim concerning Lander, related that she had
repeatedly asked Lander not to leave her work area but that Lander had
continued to do so That same statement contained the following "I be-
lieve Sophia was guilty of talking with other employees during working
hours concernlng joining the union." Aside from her alleged observation
of Lander away from her work station talking to employees, ramel had
no basis on which to reach this conclusion. In light of the fact that
Lander's job required her to move about the department, I find it m-
probable that Tramel would have told her not to leave her work station
Even by her own testimony, the report to Kellim, that she had "repeat-
edly" told ander nol to leave her station, was an exaggeration. I credit
Lander's denial that she was reprimanded for any such infraction
their alleged willingness to accept and rely on the inci-
dent as reported to them by Lane, without confronting
Lander to get her version, and without questioning other
employees and supervisors (particularly Ezell) who were
in the vicinity of the alleged incident, renders their testi-
mony less than fully credible (and evidences their unlaw-
ful motivation, as discussed infju).
Similarly impairing the acceptability of Tramel's testi-
mony is the fact that her written statement to Respond-
ent, dated September 28, reported that she believed
Iander to be guilty of soliciting employees to join the
Union during working hours. Tramel had no evidence to
support this statement; her observations of Lander within
the department were not such as would justify such a
conclusion and her one conversation with an employee,
Bonnie Williams, wherein Tramel claimed that she was
told that Lander had solicited Williams, did not evidence
union activity in the plant. Moreover, Williams credibly
denied telling Tramel that Lander asked her to sign a
card or that she had signed a card on Lander's request.
Tramel's statement thus evidences a desire on her part to
find Lander guilty of a rule violation which could war-
rant Lander's discharge.
I conclude, from all of the foregoing, that Sophia
lander was discharged because of the union activity in
which she was engaged, or in which Respondent be-
lieved her to be engaged. The alleged incident, as report-
ed by Lane, was seized on by Respondent as a pretext to
discharge a popular and efficient employee. Few acts by
management could have as forceful a negative effect on
a union organizational campaign as this.
Several factors, traditionally considered by the Board,
support this conclusion of a discriminatory discharge.
The record establishes that Respondent opposed the
Union; its animus was demonstrated by both lawful and
unlawful actions. Lander, in fact, supported the Union.
Lander's supervisor knew of her union activity (as estab-
lished by Tramel's conversation with her on September
20) and held an unwarranted belief that Lander was en-
gaging in union activity in the plant during working
hours. That belief was reported to the plant manager as
part of the transaction leading to Lander's discharge. Re-
sponident offered varying explanations for the discharge,
seemingly attempting, at the hearing, to bolster its deci-
sion by adding claims of insubordination and loss of pro-
duction not earlier raised. 7
Similar attempts to bolster Respondent's position are
found in its efforts, such as the October II statement
taken from Lane, to portray the alleged threat as requir-
ing a degree of protection which even Lane did not pur-
port to require or to emphasize the alleged threatening
nature of the statement by changing "could lose your
job" to "would lose your job." In this same vein is Kel-
lim's statement to Lander that he had "no recourse" but
to discharge her. Respondent's rule 12, prohibiting the
17 ven if Lane's testimony were Ito h credited, it appears that there
was no Iloss of productl.l According to that testimony, ane's machine
was down for repairs during the alleged conversation That conlveratlion,
even if it occurred. would have hee very brief at best Had Responldent
investigated the alleged incident these "facts" hould have become appar-
ent to it.
(1046
EIK BRAND NMANUFACTURIN(; COMPANY
threatening of employees on company property, which
Kellim claimed was the rule violation most directly moti-
vating the discharge, did not mandate discharge; it was
one of those offenses for which discipline "up to and in-
cluding dismissal" was provided. Moreover, Respond-
ent's own statement of policy provided that "discharge is
considered only as a last resort." Respondent's resort to
the ultimate industrial penalty was, therefore, not re-
quired by its rules, and Kellim's statement that there was
no other recourse was an exaggeration.
The most significant factor in concluding that the al-
leged threat was but a pretext to justify an otherwise dis-
criminatory discharge is the failure of either Tramel or
Kellim to investigate the alleged incident or to confront
Lander with facts. At best, Lander was given bare accu-
sations, referred to only by the numbers of the rules she
was alleged to have violated. No details of her alleged
misconduct were divulged until after she was discharged.
To ask her if she had any questions, as Kellim claimed
he did, was not the same as giving her an opportunity to
explain or deny. It is neither credible nor plausible that
an employer (particularly one who had declared policies
of open communication with its employees and fair pro-
cedures in disciplinary cases) would accept the word of a
new and marginal employee without ever confronting
the accused, a long-term and well respected employee
who had never given it cause to doubt her word or her
conduct, with the accusation against her. It is equally im-
plausible that it would discharge such a valuable employ-
ee without questioning the supervisors and employees
who were, allegedly, in the area of the claimed incident.
As the United States Circuit Court of Appeals for the
Fifth Circuit stated in United State~ Rubber Company v.
N.L.R.B., 384 F.2d 660, 662-603 (1967), when if en-
forced the Board's order (found at 155 NLRB 556
(1965)):
Perhaps most damning is the fact that both [em-
ployees] were summarily discharged after reports of
their misconduct . . . without being given any op-
portunity to explain or to give their version of the
incidents.
See also Hercules Bumpers. Inc., 248 NLRB 1047, 1051,
fn. 18 (1980).
Accordingly, I find that Sophia Lander had engaged
in no misconduct warranting discharge, that she had en-
gaged in union activity, that Respondent knew or be-
lieved that she was so engaged, and that Respondent dis-
criminatorily discharged her, in violation of Section
8(a)(3) and (1) of the Act, when it seized on the alleged
threat to Lane as a pretext to hide its real and unlawful
motivation.' 1
'" See ANL.R.B urnup & Ss. Inc.. 179 t S 21, 21 (19s) which
held that the Act "is violated when an emploee is discharged fior mis-
conduct arlsing ut of a protected aclti. dcspite the employer' gld
faith, when it is shown ihat the nliconduct never icn- rrcd" I i hlis case.
as I have found. even thc elnemelnt of god-faith belief Is l]aking
Even assuming. however, that Rpondcnl had a good-aith beli t hat
Lander had violated Respondcnt's nil-solicitallon ruli (the o,1n} rile .bh
lation involved herein which, ii could be h i gucid, ruired dli,cl.arge ,li
the irst offense). Rcspoind inl's , dllsp. r.It lft.or cnellIIt oft thlld rule voUlld
render i italid insofar as it %tud applN is 1 tiniO, l C, liys l Ilt rC(tord
contains credible eidence that, ecin] hbefor I he rule was puhhhhed i the
Ill. Hie REMEI)Y
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, it will be recommended that Respondent
be required to cease and desist therefrom and to take
certain affirmative actions designed to effectuate the poli-
cies of the Act.
It having been found that Respondent discriminatorily
discharged Sophia Lander, Respondent shall be required
to offer her immediate and full reinstatement to her
former position or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or other rights and privileges, and shall make
her whole for any losses she may have suffered by
reason of the discrimination against her. All backpay due
under the terms of the Order herein shall be computed,
with interest, in the manner prescribed in F W Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977). ' 9
CONCI USIONS o01 LAW
1. By threatening its employees with plant closing, dis-
charge, or the loss of jobs, by telling an employee that
another employee had been discharged because of her
union activity, and by creating the impression of surveil-
lance, Respondent has engaged unfair labor practices
affecting conimerce within the meaning of Section
8(a)( I) of the Act
2. IBy discharging Sophia Lander because of her union
activities and in order to discourage membership in and
support for the Union, Respondent has violated Section
8(a)(3) and (1) of the Act.
3. The above-described unfair labor practices affect
commerce Within the meaning of Section 2(6) and (7) of
the Act.
4. Respondent has not engaged in any unfair labor
practices other than those found herein.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record. and pursuant to
Section 10(c) of the Act. I hereby issue the following
recommended:
ORDER2 "
The Respondent, Elk Brand Manufacturing Company,
Cadiz, Kentucky. its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
cmnployc manl:lual. it \was in Cistt'TlC ad a S kinown i to the enlplt ecs
Nonetheless. - tlittllios fir th Csale of hullchild items itook place in the
plat and w'crt piarlctipatitd in h) at aisi oIItne superstir. ramniel Scn
after the plicaliol of the rule nd tihe startl f the union actissit . t p-
pears tll IlillC was s ,ollcltlilnll, orin empl) et seolicited mone, to sup-
port iill aniltilun1[I (drltc lils stlicitatliln. it appcars. 'as eligagcd In1
Ioperlly I-tn whtiil sliitl.ltilll, werel kn, u ll tlo maniagcmelit anid crc
liss tltraged,, i' other t'Il Jltlice w. crc disclargtd
Se'e. gtiltr.ll. ls Piu,ihtrii & /1atrlt (o I13l NI RBI 71th I t62)
I-l] ilt , it c l. Io x ptisI L arc tiled is plli lded tss Stc 1)2 -t, of
the Rules aid Rtegulahltlion, i Ihe N.tlilonil I thor Relathlls Hoardil. Ihic
finldings. Cio lsl isis.l aid re-nillillncndcd ()rdcil hetrein hall . as pris lded
in Se.c 1(2 4 ot the Rules and Regill.,tions,,, ht a .Id(pteIt' t e11 tHoai tiil d
hb (-oI t i I itlilg ll. iid . lsisi"tise. .ll ()rdir. isd d 1l I tall CtlllT ilhertto
shall hc dec tnid atislctl fr ill purp-scs
1(47
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Threatening employees with plant closure, dis-
charge, or the loss of jobs because they have engaged in
union activities or in order to discourage membership in
or support for the Union.
(b) Threatening employees with discharge by telling
them that other employees have been discharged because
of their union activities.
(c) Creating the impression that the Employer is en-
gaging in surveillance of the employees' union activities.
(d) Discriminatorily discharging its employees because
of their union activities and in order to discourage mem-
bership in Missouri-Mississippi River Valley District
Council, International Ladies' Garment Workers Union,
AFL-CIO, or any other union.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Sophia Lander immediate and full reinstate-
ment to her former job or, if that job 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 she may have suffered by
reason of the discrimination against her in the manner set
forth in the section of this Decision entitled "The
Remedy."
(b) 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 re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its place of business in Cadiz, Kentucky,
copies of the attached notice marked "Appendix." 2
Copies of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by Re-
spondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all place 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 material.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
" In the event hat 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 l.abor Relations HBoard" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
()rder of the National l.abor Relations Board "
1048