Mid States Sportswear, Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1967

168 N.L.R.B. 559 (N.L.R.B. 1967)

MID STATES SPORTSWEAR, INC. 559
Mid States Sportswear , Inc. and Amalgamated
Clothing Workers of America , AFL-CIO. Cases
26-CA-2626 and 26-RC-2767
November 29, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On August 4, 1967, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He further found that Respondent had in-
terfered with the election held at Respondent's
plant on November 30, 1966, and recommended
that the election be set aside, and a new election
held. Thereafter, Respondent and General Counsel
filed exceptions to the Trial Examiner's Decision,
with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,' and recommendations of the
Trial Examiner, with the following modifications.
The Trial Examiner found, and we agree, that
Respondent engaged in various unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the
Act; and that, with respect to employee Keeton, the
General Counsel established a prima facie case that
her discharge by Respondent was also in violation
of the Act. The Trial Examiner nevertheless
dismissed the 8(a)(3) and (1) allegation as to her,
finding that Respondent succeeded in rebutting the
prima facie case by showing that it in fact dis-
charged Keeton for cause. For the following
reasons, we do not agree with this latter finding.
Keeton, the initiator of the organizational drive
and main solicitor of union authorization cards, like
the other union leader who was discriminatorily
discharged (Dunavent), was consistently one of the
highest producers at the plant. Her task was to sew
zippers into hoods on ski jackets. She was the only
one doing her particular operation, and hers was
one of the first steps in the production line. She had
been employed at the plant for 11 months, and had
always been a careful as well as rapid worker. Ac-
cording to Plant Manager Sullivan, however, in the
last 2 or 3 weeks before she was discharged - a
period coinciding with the union activities she in-
itiated - her work became increasingly faulty,
required "mountains of repairs," and was the
reason he decided to discharge her.
Respondent's rebuttal evidence as to why Sul-
livan discharged Keeton rests almost entirely on the
testimony of Sullivan.2 Although Sullivan's
testimony on direct examination supports the Trial
Examiner's finding that Keeton was producing an
excessive number of defective garments, Sullivan
gave another account under cross-examination, an
account which unmistakably reveals in our
judgment that the Trial Examiner was in error in
finding that Keeton had an excessive number of
repairs.
Sullivan first explained that during the last weeks
of Keeton's employment 60 percent of her work
was bad and required repairs. Since Keeton was
turning out between 400 and 500 garments a day,
the implication of the testimony is that her repairs
would run between 240 and 300 defective garments
per day. On cross-examination, however, Sullivan
retreated almost totally from his earlier position. He
said that only 9 percent of Keeton's work actually
needed repairs.3 The Trial Examiner erroneously
reads Sullivan's testimony to say that 45 percent of
Keeton's work, or between 180 and 225 garments
per day, was defective and needed repairing.
The Trial Examiner correctly found that Keeton
never received any warning that she might be
discharged for producing defective work. On the
contrary, Sullivan had in fact complimented her on
her work only about a week before he discharged
her. Sullivan further testified that Respondent had
no knowledge of union activity in the plant. But the
Trial Examiner discredited this testimony, and
found that Respondent had known of the union ac-
tivity since the time when he discharged Dunavent.
i In the absence of exceptions, we adopt, pro forma, the Trial Ex-
aminer 's findings that there was nothing unlawful either about the plant
manager's remark to employees Cole and McDaniel that the mid-winter
layoffs duration would depend on whether or not the Union came in, or
about Respondent 's campaign literature.
2 The testimony ofMcDaniel, Petrie , and Middleton, standing alone, is
insufficient to rebut the prima facie case made out by the General Coun-
sel
3 The Trial Examiner overstates Keeton's repair figure by a factor of
five His figures can be accounted for only as a misreading of Sullivan's
testimony , coupled with an error in arithmetic Thus, when Sullivan was
asked on cross -examination what percent of Keeton ' s work had to be
repaired , Sullivan said - "Well, probably about 15 percent would have to
be fixed, would have to be fixed of the 60 percent " (Sixty percent is the
"bad work " figure given by Sullivan on direct examination ) Sullivan's
testimony , in other words, is that only 9 percent of Keeton's work product
had to be repaired The Trial Examiner's Decision , however , proceeds on
the finding that "[O]nly 45 percent of her rejects had to be repaired."
Thus, he finds that Keeton produced between 180 and 225 garments need-
ing repairs per day . (Keeton's production was admittedly between 400 and
500 garments per day.) Since the true figure is 9 percent , or 36 to 45
repairs per day, the Trial Examiner errs by a factor of 5
168 NLRB No. 74
560 DECISIONS OF NATIONAL
Furthermore, doubt is cast by the Trial Examiner
on Respondent's claimed ignorance of Keeton's
participation in the union activity, for the Trial Ex-
aminer credited evidence of three other significant
facts: (1) Supervisor Jennings, in discussing
Keeton's assertion that Dunavent's discharge was
because of union activity, warned Keeton not to get
involved; (2) Supervisor Middleton admitted that
Keeton had participated in the union activity (the
alleged "commotion") for which Dunavent had
been discriminatorily discharged; and (3) the small
size of the plant warranted the inference, which the
Trial Examiner made, that Respondent knew of
Keeton's union activity before her discharge.
As to Respondent's policy when work repairs
were needed, Sullivan testified that Respondent
would normally return the work to the employee
who produced it, to make the repairs at no addi-
tional compensation. Keeton's wage figures show,
however, that she received compensation for
repairing defective work of other employees during
her last weeks at the plant - at the very time when
Sullivan would have us believe that Keeton's own
garments were defective and needed a lot of repair-
ing. But Sullivan did not explain why, contrary to
this policy, Keeton was paid for repairing others'
work, while others were paid for repairing Keeton's
work. The obvious implication is that Keeton did
not have "mountains" of her own repair work to do
at all.4
Because of the patent contradictions between
Sullivan's testimony on direct and on cross-ex-
amination, we are unable to attach reliability to Sul-
livan's asserted reasons for discharging Keeton, a
union leader. Our view in this respect is fortified by
the fact that the Trial Examiner expressly refused
to credit other testimony of Sullivan, with respect
to the discharge of Dunavent. Moreover, we find
merit in General Counsel's exceptions to the Trial
Examiner's refusal to draw an unfavorable in-
ference from Respondent's failure to produce the
employees' repair records, which were maintained
and, if produced, would have shown precisely the
repair situation of Keeton and the other employees.
The nonproduction of these records was not
satisfactorily explained by any competent
testimony. Rather, the Trial Examiner seems to
have relied on the unsworn hearsay statement of
Respondent's counsel: "An employee at the plant
discarded them [the records] through error."
Respondent made no attempt to substantiate coun-
sel's statement with competent evidence.
In sum, we are convinced by the evidence that
Keeton's discharge was discriminatorily motivated.
She had always been a careful as well as a rapid
4 The Trial Examiner inadvertently misreads the record on this point
Thus, he disposes of this argument partly on the grounds that Keeton here
was receiving compensation for repairing her own crooked labels. This
finding is based , by the Trial Examiner's own explication, on the
LABOR RELATIONS BOARD
worker. No complaints about her work had ever
been registered until the time that union activity
first began at the plant. Even so, she was never
warned that she might be discharged; on the contra-
ry, she was complimented on her work only a week
before she was discharged. As the Trial Examiner
found, the evidence that Respondent knew or had
good cause to know of Keeton's union activity is
most persuasive. A management representative,
Supervisor Middleton, associated Keeton with the
union activity in the plant for which Dunavent was
discriminatorily discharged, and in effect warned
her against such activity. Another management
representative, Supervisor Jennings, likewise
warned her only 10 days before she was discharged
not to get involved with the Union. Moreover, the
small size of the plant ensured rapid dissemination of
knowledge of Keeton's union activities. Sullivan's
union animus was clearly demonstrated by his
discriminatory discharge of the only other union
activist, Dunavent, as well as by his participation
in other Section 8(a)(1) violations herein found.
The transparent fictions which Sullivan engaged in
to justify his discharge of Dunavent, as well as his
self-contradictory testimony with respect to
Keeton's repair figures, preclude reliance on his
testimony. These considerations in combination
lead us to believe that Sullivan discharged Keeton
because of her union activity, and not because of
her defective work. Accordingly, we find that
Respondent discharged Keeton in violation of
Section (a) (3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that Respondent, Mid
States Sportswear, Inc., Sumner , Mississippi, its of-
ficers, agents, successors, and assigns , shall take
the action set forth in the Trial Examiner' s Recom-
mended Order, as herein modified:
1. Amend the first line of paragraph 2(a) to read
as follows:
"Offer Ester J. Dunavent and Clara Ruth
Keeton, respectively, immediate and full reinstate-
ment to her ...."
2. Amend the first line of the fourth indented
paragraph of the Appendix attached to the Trial Ex-
aminer's Decision to read as follows:
"WE WILL offer to Ester J. Dunavent and Clara
Ruth Keeton, respectively, immediate and full rein-
statement ...
testimony of Superintendent Middleton . The record, however , unequivo-
cally reveals that Superintendent Middleton' s testimony about crooked
labels had reference to the work of Mary Sudduth.
MID STATES SPORTSWEAR, INC. 561
IT IS FURTHER ORDERED that the election held in
Case 26-RC-2767 be, and it hereby is, set aside.
Upon the entire record in the case, and from my obser-
vation of all witnesses on the stand, I make the following:
[Direction of Second Election 5 text omitted from
publication.]
5 An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by Respondent Employer with the Re-
gional Director for Region 26 within 7 days after the date of issuance of
the Notice of Second Election by the Regional Director. The Regional
Director shall make the list available to all the parties to the election No
extension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever
proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: The issues in this
case are whether or not Respondent, Mid States Sport-
swear, Inc. (1) coerced employees at its Clarksdale, Mis-
sissippi , plant by promulgation and enforcement of a
broad no-solicitation rule, interrogation about their union
activities, various types of threats of reprisal for con-
tinued union activity, and other conduct, in violation of
Section 8(a)(1) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151 et seq. (herein called the
Act), and (2) discharged and refused to reinstate two em-
ployees for activities on behalf of the above-named
Union, in violation of Section 8(a)(3) of said Act, and (3)
by the above and other conduct affected the results of an
election held at said plant on November 30, 1966, to an
extent requiring that the election be set aside. The issues
arise on a complaint issued January 27, 1967, by the
Board's Regional Director for Region 26, in Case
26-CA-2626,1 as amended on March 17, 1967, and an
order of the Board, issued March 13, 1967, in Case
26-RC-2767, directing a hearing by a Trial Examiner on
various exceptions filed by Respondent and the Union to
the report of the Regional Director on objections to said
election, issued January 11, 1967, in said proceeding,2
and answer of Respondent which admitted jurisdiction
but denied the commission of any unfair labor practices.
A hearing on the issues was held before me at Clarksdale,
Mississippi, on March 29, 30, and 31, 1967, in which all
parties participated fully through counsel . All parties
waived oral argument at close of the testimony, but filed
written briefs which I have considered carefully in
preparation of this Decision.3
1 The original complaint issued after Board investigation of a charge
filed by the Union on December 12, 1966.
2 The proceedings in both cases were consolidated for hearing , ruling,
and decision by a Trial Examiner, by order dated March 16, 1967.
3 Before the hearing Respondent filed a petition to revoke General
Counsel's subpena directing production of various company records at the
hearing. After argument , I dismissed the petition in all respects except two
when it appeared that Respondent had complied with the subpena or
satisfactorily explained its inability to produce the records desired. How-
ever, I granted the petition and revoked the subpena as to item 1(b) which
called for voluminous records of production of all employees from August
1, 1965, through July 31, 1966, on the ground that production of the great
mass of records would be burdensome and delay the hearing, and since the
information sought thereby could be procured by cooperation of counsel
to the extent material to the issues The parties later stipulated most of the
essential facts on this point
FINDINGS OF FACT
I. RESPONDENT 'S BUSINESS , AND THE STATUS OF THE
LABOR ORGANIZATIONS
Respondent is a Mississippi corporation with its prin-
cipal office and place of business in Sumner , Mississippi,
where it manufactures sportswear . In the 12 months prior
to issuance of the complaint Respondent had both direct
inflow and outflow of materials and products between
said place of business and points outside Mississippi of a
value in each instance in excess of $50,000. I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The above-named Union, and General Drivers,
Salesmen and Warehousemen 's Local 984, affiliated with
the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America (herein called
the Teamsters Union), are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED•UNFAIR LABOR PRACTICES IN CASE
26-cA-2626
A. Background Events
Around July 1, 1966, several employees at the Sumner
plant began talking privately about having a union. One
of them, Clara Ruth Keeton, secured about 100
authorization cards from the Teamsters' Union in Mem-
phis, Tennessee, and, with the help of employee Ester J.
Dunavent, solicited other workers to sign them. Keeton
signed a card at home, and persuaded about eight other
workers to sign them at the same place; Dunavent dis-
tributed three cards on nonworking time in the plant on
July 11, six outside the plant, and received five signed
cards on July 12. Keeton thus collected about 15 signed
cards, but did nothing further with them or the blank
cards, except to keep them at her home up to the time of
the hearing; neither she nor Dunavent made further con-
tact with the Teamsters Union, and no other employee at
that time or since has engaged in any activity on behalf of
that labor organization.
Activity on behalf of the Union began at the plant a few
days after the discharge of Keeton on July 23, when a
member of the Union suggested that Keeton and others
contact the Union, in discussing what action Keeton
should take about her discharge. Sometime in August the
Union's agents came to the area to interview workers, it
began distribution of formal literature about September
13, and on October 7, filed its petition for representation
in Case 26-RC-2767, in which Respondent and the
Union agreed on a consent election, which was held at the
plant November 30, 1966. The Union lost and filed ob-
jections to conduct affecting the results of the election, on
which the Regional Director filed his report January 11,
1967. On exceptions by both parties to his report, the
Board on March 13, 1967, directed a hearing before a
Trial Examiner on certain issues which will be considered
hereafter in appraising the conduct of Respondent and the
Union in the preelection campaign.
B. The Discharge of EsterJ. Dunavent
Prior to her termination in July, Dunavent was working
as a utility girl, performing one or two sewing operations
562 DECISIONS OF NATIONAL
on garments as required, under Supervisor Beatrice
Middleton. Her sewing machine was in one of several
lines of machines, with machines a few feet away in front
of and behind her and in another line to her right. In the
course of their work, Dunavent and operators around her
were not required, and had no occasion, to approach each
others' machines or talk about their work; their only work
contact (aside from Supervisor Middleton or plant offi-
cials) was with employees called "bundle boys" and
`bundle girls" who regularly brought bundles of un-
finished garments to their machines for performance of
operations or repairs, and took the bundles away after
completion of operations.
Shortly after July 1, Plant Manager Darrell Sullivan
began to get reports from Supervisors Middleton and
Martha Weeks,4 that there was an unusual amount of
visiting and talking between machine operators on the
sewing floor, with various operators and at least one bun-
dle boy often visiting Dunavent's machine and talking to
her at some length. As production obviously stopped
when operators left their machines for extended intervals,
and congregation of them at one machine also hindered
the bundle boys in their deliveries, Sullivan became con-
cerned and told both supervisors to take steps to put a
stop to the "confusion" which, according to reports, ap-
peared to be centered at Dunavent's machine. When Sul-
livan got later reports that the activity there was continu-
ing, he called Dunavent int his office about 1 p.m. on July
12, told her of the reports from the supervisors about a
"lot of confusion" in the plant, with much commotion and
talk in the area where she worked, that he did not know
what it was all about, but the reports were that her
machine was the "center" of confusion, so he was
"dismissing" her until July 19, but not discharging her,
until he could investigate the "commotion." He told her
to report back to him on the 19th when he would tell her
what he found out. She replied that she did not un-
derstand it, and he replied he would check it out. She left
the plant at once.
Late that afternoon, Robert Dunavent, husband of
Ester, called the plant, trying to locate his wife who had
come to his own place of employment early that after-
noon. When he was referred to Sullivan, he asked the
latter why his wife was off from work, if she was fired,
and Sullivan replied that there was "gossip going around
about Ester" and he wanted to investigate it to try to clear
it up if he could, and had "dismissed" her, but not fired
her, until he could investigate. Dunavent asked what the
"gossip" was, but Sullivan did not say.
Late that same day, Sullivan got reports from Weeks
that workers were saying Dunavent had been fired for
union activity, and that some workers were soliciting em-
ployees to sign union cards. Sullivan gave Weeks and
Middleton orders to keep their eyes and ears open, but
"their mouths shut," to see whether the "confusion" in
the plant stopped, and to "report anything out of the ordi-
nary." About noon on July 13 or 14, Dunavent returned
to the plant and, referring to the rumors about union ac-
tivity, told Sullivan she was not involved in it. He replied
4 Weeks was the top supervisor for the whole plant, exercising supervi-
sion over Middleton who controlled the sewing floor, and Supervisor
Maxine Jennings who controlled the remainder of the plant including the
cutting room and final inspection operations.
5 The above facts are found on credited testimony of Dunavent, Sul-
livan, and Middleton. Testimony of any of them at variance therewith is
not credited.
6 The inference is supported by Sullivan 's admission , noted hereafter,
LABOR RELATIONS BOARD
that he was still investigating the "confusion," and she
should see him next Tuesday.
Dunavent reported to Sullivan on July 19, asked him
what he had found out, and he replied he was still in-
vestigating and needed another week for it. He told her to
return Tuesday, July 26. She asked him about the "gos-
sip" that had been reported, and he said he could not tell
her about it yet. She returned on the 26th, and asked him
the same question, and he said he could not yet say, but
that he was waiting for her to tell him what the "trouble"
was. She asked what trouble, but he did not explain. Du-
navent never came back to the plant to work and she was
marked as terminated on the company records at an un-
specified later date, after she had applied to the State
authorities for unemployment compensation.5
Respondent's defense as to Dunavent makes two
points: (1) her union activity before discharge was limited
and not known to Respondent, and (2) she was in fact
discharged only for misbehavior at her workplace which
interfered with her own production and that of others
around her. Dunavent's testimony indicates she gave out
nine Teamsters cards but succeeded in getting only five
signed on July 11 after soliciting employees at home and
in the plant. While this was a rather limited solicitation in
an appropriate unit of 68 workers (as determined in the
representation case), and there is no proof that the actual
distribution or signature of cards occurred at or near her
machine during worktime, nor any direct proof that either
Weeks or Middleton learned the subject of her unusual
discussions with workers at her machine before July 12,
Supervisor Jennings, who ran the other side of the plant,
admitted that in June or early July there were rumors
throughout the whole plant that there was union activity
among the workers, and that Dunavent was involved in
it. Since this rumor came to the ears of a supervisor not in
charge of Dunavent's work, in a plant of less than 100
workers, it is a reasonable inference that it also came to
the attention of Supervisors Weeks and Middleton and
also to Sullivan 6 and I so find, discrediting testimony of
Sullivan and Middleton to the contrary.
However, even if I assumed that this inference was not
permissible, the circumstances of Dunavent's dismissal
and eventual termination, including Sullivan's activities
thereon, would still convince me that the termination was
discriminatory. I credit at the outset testimony of Sullivan
and Middleton that for about 2 weeks before July 12 he
received reports of unusual talk and commotion centered
at Dunavent's machine, which not only took other opera-
tors away from their machines but also interrupted
Dunavent's own operation when she repeatedly looked up
from her work to talk to workers nearby or standing at her
machine.7 On these reports, Sullivan gave a legitimate
order to Weeks and Middleton to observe that activity
and learn the reason for it, so that they could put a stop to
it in the interest of continued production. Middleton
obeyed the order by continuous observation of the sewing
floor and mild but unmistakable warnings by disapprov-
ing shakes of the head whenever she saw workers con-
gregated and talking at Dunavent's machine. This had a
that he received reports from Weeks of unusual talk on the sewing floor
prior to Dunavent 's dismissal on July 12.
] While Dunavent and operator Shirley McDaniel denied that there was
any unusual talk or commotion around Dunavent ' s machine, I find it un-
necessary to resolve the conflict between their testimony and that of
Middleton on this point because Sullivan had a clear right to accept and
act upon reports from his supervisors about unusual or abnormal activity
in the plant, at least at the outset , and use it as the basis for investigation
MID STATES SPORTSWEAR, INC.
salutary effect whenever she was in the vicinity , for the
talk stopped and workers went back to their machines;
and the record shows that the commotion ceased when-
ever Sullivan appeared on the floor . These attempts to
keep workers at their work were clearly a legitimate
management action , whether or not the interruption of
work was caused by union activity and discussion by any
employee at or near Dunavent ' s workplace.8 Further,
Sullivan 's decision to "dismiss" (i.e., suspend) Dunavent
while investigating to find out if she was the cause of the
reported interruption of work, appears at first blush to be
a legitimate and nondiscriminatory action, for he admitted
that he was merely suspending but not discharging her
because he knew she was a good worker with long service
and did not want to discharge her except for clear
misconduct.9 While testimony of Sullivan and Middleton
would indicate that management first learned of the ru-
mored union talk among the girls and distribution of union
cards, and Dunavent 's apparent connection with it, from
Weeks late on the afternoon of the "dismissal ," which
prompted his orders to all supervisors to observe floor
operations closely, it is also clear from admissions of
Middleton that the supervisors were directed to keep
their eyes and ears open for union activity , to determine
whether that was the "commotion" affecting production.
Sullivan admits that on the basis of the rumor of union ac-
tivity, he decided that night to "do something about this
activity ," so he prepared a no-solicitation rule no. 3, read-
ing as follows:
(3) The policy of the company regarding any type of
papers passed through the factory at anytime for
donations , gifts, any other matter concerning em-
ployees of this company , and requiring signatures of
employees must first be approved in the office by
the plant manager . Any employee having such paper
and employees signature on said paper that HAS
NOT BEEN APPROVED by the Plant Manager is
subject to immediate dismissal . (7/13/66)
He posted the rule in the plant on July 13, in part because
of the "rumor about the Union " and "so that I would
have knowledge of any kind of a petition" or "if anybody
started passing papers in the factory ." The rule remained
posted alone until August 1, 1966, when it was
republished as part of a list of 10 company rules over Sul-
livan 's signature . Rule 3 was replaced on September 28
by another no-solicitation rule prepared by company
counsel, which is not questioned by General Counsel or
the Union . While Sullivan admits he prepared the July 13
rule in a sort 'of "panic" without benefit of legal advice,
this does not overcome the clear inference from his
testimony and action that he suspected broad union ac-
tivity in the plant and took instant action to prevent it in
all areas of the plant at all times, even on nonworking
time. This motive is also indicated by Sullivan 's admis-
sion that he had no justification in past events for prevent-
ing distribution of any papers , for he admitted he knew of
no attempts at such distribution before he issued the rule,
8 It is well settled that an employer has the right to insist that working
time is for work, and that union activity on worktime is not protected by
the Act
9 As a utility girl capable of handling many operations, Dunavent was
clearly a valuable worker. Sullivan had persuaded her to return to work
once before when she quit, and she had received a written "Operator of
the Month" award for outstanding work in January 1966.
IU Luxaire, Inc., 165 NLRB 54, Taylor Instrument Companies, 165
NLRB 843, and Stoddard-Quirk Manufacturing Co., 138 NLRB 615,
617, which hold that a rule is presumptively invalid which bars distribu-
563
and there is no credible proof that production was in fact
hindered by such activity. Hence, the issuance of the
broad rule was clearly a coercive violation of rights of em-
ployees to engage in concerted or union activity on their
own time, and violated Section 8(a)(1) of the Act,10 and
is cogent proof that on the very day Dunavent was
suspended, Respondent was intent on preventing any
union activity in the plant by unlawful means. This raises
at least a suspicion that the reason given for the tempora-
ry suspension of Dunavent was a pretext; and this
becomes a strong inference in light of the subsequent han-
dling of her case. Sullivan's investigation during her
suspension consisted merely of a continued direction to
supervisors to keep their eyes and ears open and mouths
shut, as before; there was no questioning of employees as
to the circumstances or purpose of the prior "confusion"
or excessive talk. Middleton testified that, shortly after
Dunavent left, the confusion in her area and the depart-
ment stopped and operations returned to normal, and Sul-
livan says that when Weeks gave him this report a day or
two after the "dismissal," he concluded that the source
and focus of the commotion had been Dunavent, and de-
cided to terminate her. However, this testimony does not
command credence for several reasons. In the first place,
Weeks did not testify to support him about the "commo-
tion" or its cessation, or the nature of the excessive talk,
and Middleton's testimony on this as a clearly partisan
witness is deprived of credibility by her admission on
cross-examination that the excessive talk in Dunavent's
area continued to be "pretty bad" and became "worse"
in the period between Dunavent's dismissal and July 23,
when Keeton was fired;ii and although her clear duty as
supervisor was to curtail talk and see that employees did
their work continually, she gives the lame excuse that she
did not try to curtail the talk by direct order or appeal,
because "that is asking for trouble," in that she might get
unpleasant answers if she asked girls what they talked
about or tried to get them to stop. In addition, Respond-
ent presented no substantial proof from records or
otherwise that Dunavent's own work had suffered from
excessive talk by her or in her vicinity. The alleged
reason loses further credibility in light of the fact that,
although Dunavent reported at the plant twice, as
requested, to learn the results of the "investigation," Sul-
livan put her off each time by saying the probe was still
continuing, which is contrary to his testimony that he had
his final report on July 13 and made his termination deci-
sion on the basis thereof by July 14. His failure to tell Du-
navent frankly the results of the investigation further in-
dicates that her alleged misbehavior and its effect on
production could not be supported. His excuse for not
doing so is that he "wanted to be sure about this union
thing," and "did not want to jump into something," which
raises a strong inference that Weeks' report confirmed the
earlier rumor that Dunavent was involved in some form
of union activity, which he dared not give as a reason for
discharge. Finally despite the report from Weeks, Sul-
tion of union literature on nonworking time or in nonworking areas.
11 It is also clear from her admissions and testimony of Dunavent that
there is no company rule preventing sewing operators from talking
casually to those around them while at work, and that operators normally
talked to nearby operators in course of their work about any subject.
Hence, Middleton's failure to explain in any detail how much more the
"continuous" or excessive talk in this period exceeded normal chatter, or
to what extent it affected production, renders her testimony of "exces-
sive" or "continuous" talk prior to discharge less credible
336-845 0 - 70 - 37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
livan was apparently still so unsure of Dunavent's guilt
that he did not make any entry of discharge for the alleged
misconduct on her personnel record on July 13 or 14, and
she was not dropped from the payroll until some later
date in July, after Respondent received notice that she
had applied to the State unemployment authorities for
compensation; and Sullivan again gave the lie to the claim
of misconduct when he reported to that agency that she
was discharged for violating "company policy" in the
form of the illegal no-solicitation rule 3 which was not
posted until after her "dismissal," and which Sullivan
now admits was not the reason for her termination; he ad-
mitted that he cited rule 3 to the State agency to "protect"
himself, as he thought "possibly there was union activity
involved."
Considering all of the facts and circumstances pro and
con, I am compelled to conclude that Respondent has not
adduced proof adequate to support its defense that Du-
navent was suspended and finally discharged for
misbehavior affecting production, and that the entire
record shows that she was finally terminated, though she
was an experienced and valuable worker, because
Respondent believed or strongly suspected that she was
engaged in concerted activity on behalf of some labor or-
ganization, which termination was discriminatory and
violated Section 8(a)(3) and (1) of the Act. 12
C. The Discharge of Keeton
Clara Ruth Keeton was hired by Respondent in August
1965, and throughout her employment sewed hoods and
zipped into the backs of sport jackets, under the supervi-
sion of Middleton. This operation was second in the ac-
tual assembly of the complete jacket: the bare back or
"shell" of the garment, with lining and label already at-
tached, came to her from the cutting department along
with the hoods, and she sewed one side of a zipper along
the bottom edge of the hood and the other side into the
neckline of the "shell." In the months before her
discharge she was the only operator doing this job.
The discharge of Keeton, considering she was the in-
itiator of the organizing drive with Teamsters cards,
within 2 weeks after her coorganizer, Dunavent, was un-
lawfully discharged on suspicion of such activity, com-
prise circumstances which under long precedent must be
viewed as a strong indicia of discriminatory discharge;
and when they are considered in connection with
Keeton's testimony that Jennings asked her, a day or so
after Dunavent's discharge, if she had anything to do with
"the Union," and after Keeton replied no, Jennings said
"I just wanted to warn you before you get into trouble,"
they present most of the elements of a prima facie case of
unlawful discharge, which Respondent is required to
rebut with cogent proof of discharge for cause.
Of course, knowledge of Keeton's union activity, or
suspicion or belief of its existence, is also an essential ele-
ment of any finding of violation. Although she was the in-
itiator and main solicitor in the distribution and collection
of Teamsters cards, the record shows that she deliberate-
12 There is a lack of substantial proof that Respondent actually learned
before the discharge of Dunavent that she had been soliciting on behalf of
the Teamsters However, a discharge of a union adherent on the belief or
suspicion that she had engaged in union activity is discriminatory under
the Act Dunclick, Inc., 159 NLRB 10; Heck's Inc., 156 NLRB 760,763
(fn 6)
11 1 find this conversation on credible testimony of Middleton and
ly carried on her own solicitations outside the plant, un-
like Dunavent, in an effort to keep it secret from Respond-
ent. There is no direct, affirmative proof that Respondent
learned of Keeton's activity before Dunavent's dis-
charge; I have found that union activity had been going
on before Dunavent's discharge, but that Respondent had
rumors of it, and her part in it, at or before her discharge,
and received confirmation of it after the event. However,
there is a lack of clear proof that Respondent knew of
Keeton's participation in it, and Sullivan and Middleton
denied specifically that they knew anything of her in-
volvement until after her discharge, when both heard ru-
mors in the plant that workers felt she was fired for union
activity. These denials gain support from Keeton's angry
remark to Supervisors Middleton and Jennings, as she
emerged from her discharge interview with Sullivan on
July 23, that she felt Sullivan had discharged her because
of "the Union," and that while she had had little to do
with it to that time, from then on she would do all she
could for it, and Sullivan would "hear from me," all of
which indicates that her prior union activity had been
minimal but would now increase.13 The record shows that
the Union did not appear on the scene until about a week
after Keeton's discharge, and did not begin its formal
campaign, of which Respondent received notice, until
early September; and Keeton admits she did not become
active in its campaign until about October. Hence, her
later open union activity does not tend to prove Respond-
ent's knowledge of activity for another labor organiza-
tion before discharge. To raise an inference of such
knowledge, however, General Counsel relies on one con-
versation between Keeton and Supervisor Jennings
shortly after Dunavent's discharge. I find from a com-
posite of credible testimony of Keeton and Jennings that:
On the night of Dunavent's discharge, Jennings
telephoned Keeton's home to place an order with Mr.
Keeton to deliver gasoline to a store operated by Mr. and
Mrs. Jennings. After Jennings had stated the order to
Mrs. Keeton (her husband was not home), Keeton asked
Jennings "what happened to Ester today?" Jennings
replied that she did not know. Keeton said she had heard
a rumor about a union, and that Dunavent was involved.
Jennings replied that she had also heard it, but "did not
know it to be a fact." Keeton said she had worked "in the
back" near Dunavent, but never heard or saw anything
from Ester that indicated "anything concerning a union."
Jennings replied "That is good," adding "If I were you, I
would not get involved . "14 Jennings had known Keeton
both in prior employment and socially for about 16 years,
and testified that she made the remark last above quoted
to Keeton as a close friend, because she did not want
Keeton to become "involved" with other girls during
working hours in any way which might affect Keeton's
production. Although Jennings supervised the portion of
the plant which did not encompass the sewing operations
of Dunavent and Keeton, and testified that there had
been no "confusion" or excessive talk as in Middleton's
domain, she knew about the rumors of union activity and
was included in Sullivan's order to all supervisors to ob-
Jennings , as corroborated in large part by admissions of Keeton
14 1 do not credit conflicting testimony of Keeton which I have men-
tioned above, because Keeton was vague about the details of the discus-
sion , and only reluctantly admitted certain portions of it as well as her long
friendship with Jennings on cross-examination , while Jennings testified in
a clear and forthright manner about the details, categorically denying any
interrogation and alleged warning about "getting in trouble."
MID STATES SPORTSWEAR, INC.
serve operations closely, both before and after Du-
navent's discharge, and I am sure that she knew the pur-
pose of the order was in part to try to discover and
prevent interruption of production, by any concerted or
other activity on worktime. However, although it would
appear that she had Keeton's above-average production
in mind when she suggested that Keeton not "get in-
volved ," she did not in words tie the expression "get in-
volved" to Keeton's production, so that the only other in-
terpretation which Keeton could reasonably have given
it was that it referred to the rumored discharge of Du-
navent for union activity which Keeton brought up, with
a denial that she had any part in such activity, to which
Jennings expressed approval and then suggested that she
not "get involved." In this context , Jennings' suggestion
could only have been reasonably calculated to warn
Keeton that she might suffer the same fate as Dunavent
if she engaged in union activity . While Jennings ' remarks
thus amounted to a thinly veiled and coercive warning of
reprisal for union activity which I find violative of Section
8(a)(1) of the Act, in light of Keeton's specific disavowal
of such activity, and Jennings' apparent acceptance of it,
I cannot charge Respondent with knowledge or suspicion
of union activity on the basis of this talk. On the other
hand , while there is no direct proof that Keeton's name
was mentioned in supervisors' early July reports to Sul-
livan about the commotion near Dunavent ' s machine,
Middleton admitted that in warning employees by head-
shaking against such activity, she included Keeton, for
the excessive talk was widespread enough to include
Keeton, who worked about 10-12 feet away from Du-
navent. This raises an inference that she (and Sullivan in
consequence) knew or suspected that Keeton was in-
volved in the commotion . Further, since the supervisors
were ordered, after Dunavent's discharge, to find the
cause of the commotion , including whether it was union
activity, it seems more likely than not that they learned by
mere listening and observation, not only about Du-
navent 's union activity, but that Keeton was involved in
it as well. In addition , the small size of the plant where,
according to Sullivan, most employees were related in
some way, and according to Middleton , rumors spread
quickly through the working areas, supports the same
inference.15 On these circumstance, I find that Respond-
ent had good reason to believe, and probably actual
knowledge before Keeton's discharge, that she had been
involved in the Teamsters card activities.
Keeton was discharged by Respondent about 11 a.m.
on Saturday, July 23, when Sullivan called her to his of-
fice and told her he was discharging her for poor work,
pointing to six or more bundles of jackets near his desk
which he said were her "repairs," and that it was costing
him much money to have repairs made on them. Keeton
asked why she had not been told about the repairs so that
she could correct them, and offered to fix any of her bad
work at once. Sullivan repeated that she was being
discharged for bad work. She replied she did not believe
it, and charged it was "on account of the Union." He
refused to discuss that and told her to gather her be-
longings and leave . As she left the office , angry, she met
Middleton and Jennings who asked her what was wrong,
and she made the angry remark about her discharge and
15 Wiese Plow Welding Co., Inc., 123 NLRB 616, 618; Permacold In-
dustries, Inc., 147 NLRB 885,886 ; Ventre Packing Co., Inc., 163 NLRB
540
565
her intent to intensify her union activity, as found above.
Thereafter, she sought out the Union for advice about her
discharge, and became active in its organizing campaign
in October.
General Counsel claims the discharge was discrimina-
tory because she was a known valuable worker with high
production, whose union activity was known to Respond-
ent, and was discharged abruptly without prior warning
shortly after the unlawful discharge of Dunavent, her
counion worker , for alleged excessive bad work which
was in fact exaggerated, without opportunity to correct
whatever bad work she had done. The record shows that
Keeton had been for months a consistently high , above-
average producer, whose production was displayed daily
to both workers and management , that Sullivan had com-
plimented her in the past on her work, telling her only
about a week before discharge that he wished he had
three girls like her for he had a lot of work to get Out. 16 I
have already found that Respondent was in a position to
know or should have known, and had good reason to be-
lieve, that Keeton had been active in distributing Team-
sters cards , as well as in concerted activity in talking to
workers in the plant. The significant timing of her
discharge with relation to this activity and Dunavent's
discriminatory discharge is clear.
While consistent high production and management
commendation of the worker for it is normally a potent
factor weighing against a claim of discharge of an active
union adherent for alleged bad work, in this case Keeton's
high production is an equivocal fact which supports that
defense more than weakens it. Sullivan testified that high
production on her operation can be maintained along with
poor quality, in that fast performance of a sewing opera-
tion will result in high numerical output but can still cause
many defects which require much time for repair ; and the
operator whose defects required the repairs will not suffer
in her numerical output if other workers repair her de-
fects. The testimony of Sullivan , McDaniel , Petrie, and
Middleton indicates that this is what happened in
Keeton 's case, for in the last 2 weeks of her employment
defects in her work ran about 60 percent of her produc-
tion and repairs on it required almost daily services of two
repair girls including McDaniel , label-sewer Mary Sud-
duth, at least one utility girl, plus several inspectors and
Middleton herself ; in this period Keeton was required to
repair only five or six garments per bundle herself, so that
she could keep up her output on new garments coming
through the line, thus keeping the whole assembly
process from stalling. This testimony is credible because
the record shows that Keeton's job consisted of the
mechanical operations of measuring hood against zipper
and jacket neckline, seaming the hood where it did not
match zipper and neckline length , and then sewing these
parts together , all of which was a mechanical and repeti-
tive operation, and from its very nature it is obvious that
she could easily maintain speed and high production by
slighting the measuring and seaming , which would
produce "holes " where she did not catch and shorten
extra-long hoods; and the same would be true if she
sewed seams fast but carelessly and unevenly , producing
crooked labels. Hence, I must conclude that Keeton's
above-average production and Respondent 's recognition
16 This finding is based on credible testimony of Keeton , Dunavent, and
Little, as corroborated in part by admissions of Sullivan and Middleton.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of it at some earlier date does not militate against a
discharge for the rising incidence of bad work and poor
quality in the last week or so of her employment if that
were proven.
However, the issue of an abrupt discharge without
prior warning despite the absence of an unusual amount
of unusual bad work is not so easily resolved. On the
question of bad work, Sullivan testified that: On and just
before the date of discharge, Keeton's rejects were
running about 60 percent of her production, with inspec-
tors and supervisors finding only 2 to 10 passable gar-
ments out of every bundle of 25 handled by Keeton.
Although she had been warned about defects in the past
and shown how to avoid them, the quality of her output
had not improved but gone down thereafter, so that in the
week or so before discharge her defects were so nu-
merous that at least five other employees were taken from
their regular work to repair most of her garments, which
was necessary both to make the garments passable and
complete their manufacture, as well as to enable Keeton
to continue her regular work; if she had been required to
repair all her own mistakes, which was the normal
procedure," she could not have continued her regular
production, which would hold up at least three operations
following hers, with probable layoffs of the latter workers
and shutdown of production. 18 Sullivan's story on the in-
cidence of bad work, its growth, and the warnings to
Keeton about it, is corroborated by testimony of
Middleton, Jennings, Dunavent, repair girls Mary Hill-
man and Petrie, and admissions of Keeton herself, which
shows that: About a month or 6 weeks before her
discharge, the number of defects in Keeton's garments
began to rise. They were mainly of two types: crooked
labels appearing on the lining of the jacket back, and
"holes" or loopings of unsewn hood bottoms, both ap-
pearing after she had sewn the hood and zipper into the
neckline of the back.19 When crooked labels began to ap-
pear in unusual numbers to the final inspectors and then
to the preexaminer,20 they were traced back to her, and
Middleton made a special effort about a month before
discharge to show Keeton that this defect occurred when
she did not sew the seams for attachment of zipper and
hood evenly on both sides of the neck. In some instances,
Keeton indicated to the supervisor that the defect might
have arisen from uneven cutting of the neckline of the
back in the cutting department, but Middleton's repeated
examination of her work just before the discharge in-
dicated that few of the defects originated in the cutting de-
partment. The problem of "holes" had been an intermit-
tent one over a longer period, for as early as January 1966
" The record shows that normally an operator is required to make her
own repairs, for which she is not paid.
's It is clear from testimony of Sullivan, repair girl Clara Petrie, and Du-
navent, that repairs on Keeton's garments would take up to twice as long
as the original sewing, depending on whether the repair required only sew-
ing, or ripping stitches and resewing.
11 Crooked labels occur when, on inspection, they do not appear posi-
tioned parallel to the line of seam in the neckline where one-half the zipper
is sewn in . "Holes" occur when the bottom line of a hood, which is to be
sewn to the other half of the zipper, is too long for the zipper and neckline
seam, so that when it is sewn in, with the ends meeting the end of the
zipper and neckline on each side, part of the hood bottom must be "looped
out," or remain unsewn into the neckline.
hoods had been coming from the cutting department cut
too large in the bottom edge and improperly tagged for
use on jacket backs with shorter necklines, hence the
"holes" appeared when Keeton tried to match them in
with the zippers. When this caused rejections which were
brought back to Keeton for combining repair, she brought
this to the attention of Sullivan and Middleton, because
the repairs cut into her regular production and reduced
her pay. Sullivan took the problem back to the cutting de-
partment, and thereafter the hoods began to come
through properly cut and sized, so that "holes" were
fewer and smaller. However, to compensate for any such
errors which continued, Keeton was directed to measure
each hood bottom against the zipper length and neckline,
before sewing them, and if the hood was still too large, to
make a special seam in the back of the hood itself which
shortened the hood bottom to the right size. Keeton per-
formed the seaming operations as needed for- about 2
months before her discharge. However, her garments still
continued to come to final inspection with "holes," which
required their return for ripping and resewing in part by
Keeton but mostly by other workers, as found above.
Middleton continued to bring garments with "holes" and
crooked labels back to Keeton, and called her attention to
the defects, but without further specific warning or
directions on how to make the repair or avoid the error,
as she knew Keeton was an experienced operator and felt
that the one prior explanation was enough. In the last 2
weeks before July 23, however, the number of crooked
labels and "holes" discovered both by the preexaminers
and final inspectors became so numerous that in the week
before Keeton's dismissal at least five other workers, one
supervisor, and several final inspectors were taken from
their regular work to devote several hours a day, mostly
on overtime, to repairing the defects before the garments
could be shipped; all repairs could not be sent back to
Keeton because if she had been required to handle all of
them, it would have prevented her from doing any of her
regular work, which would have created a bottleneck and
stopped production completely. In this period, particu-
larly the last day or so before discharge and on July 23,
her defects were running over 15 garments per bundle of
25, most of them crooked labels.21 As a result, the depart-
ment was so "swamped" with these defects that the
backlog of her repairs was not completely worked off
until the normal layoff of mid-December 1966. At one
point after the discharge Sullivan commented to Mc-
Daniel, who was spending all her time on repairs instead
of her regular job of setting pockets, that he was con-
cerned about getting repairs cleaned up so that he could
20 Preexaminers are girls who make a quick check of the garment after
Keeton has finished her operation, so that any defects which appear can
be sent back to her at once for correction, before other portions of the
jacket are sewn in, which would make it more difficult and time-consum-
ing to rip out the later operations to repair her mistakes
21 Credible testimony of Hillman and Middleton shows that on the day
of discharge most of the defects were crooked labels, which clearly ap-
peared in the bundles of Keeton's defective garments they carried to Sul-
livan's office, with the neck seam of each ripped open for inspection and
showing uneven seaming, although the labels themselves were sewn
straight on the back itself, indicating that the fault was not that of the label-
sewer.
MID STATES SPORTSWEAR, INC. 567
put her back on her regular work.22 Since Keeton's
discharge, the incidence of "hole" and label problems has
gradually shrunk to normal size, and after the layoff of
1966, which ended about January 27, 1967, they became
rare . The abnormal amount of Keeton 's repairs is in-
dicated by Sullivan's uncontradicted testimony that nor-
mal repairs for a good operator is from zero to 6 percent
a day, or not more than two garments per bundle. As it
appears that at the last Keeton was putting out between
400 and 500 garments, or 16 to 20 bundles, a day, normal
repairs on her work would thus run between 32 and 40 a
day, so that 15 defects per bundle, or between 240 and
300 defective garments per day, would be very high. Sul-
livan admits Respondent minimized the total effect of
these rejects by reexamining and passing about one-
quarter of them as "borderline" cases without repair, so
that only 45 percent of her rejects, or between 180 and
225 per day, had to be repaired. Of this amount, Keeton
had to do at most 15 percent, or between 18 and 34 a day,
herself, while the remainder of 160 to 190 garments were
repaired by others. This calculation is consistent with
Hillman's testimony that just before discharge Sullivan
was returning between 10 and 50 of Keeton's garments to
her daily for repair, and Jennings' testimony that 15 to 50
repairs a day for an experienced operator is abnormal,
and that in the month or so before her discharge Keeton's
work at times showed up as much as 100 defects a day on
final inspection.
Keeton plays down the extent of her rejects by
testimony that she had to repair only three to four of her
own garments a week, which very low figure appears in-
credible in light of her admission elsewhere that the figure
might have been three to four garments a day, and that in
the last month of her employment her repairs might have
been higher if, she was put on new styles of garments,
where even experienced girls may have more mistakes at
the outset until they become skilled in handling the new
garment; however, she did not testify that she was in fact
given new styles in that period, and even if I accept her
estimate of three to four repairs by her a day, that does not
discredit Respondent's testimony that many more defects
in her work had to be handled by others.23 Further, sup-
porting testimony of preexaminer Sarah Jenkins, who in-
spected Keeton's work, does not weigh against Respond-
ent's proof, because she saw Keeton's work only until
she left the plant on June 4, 1966, but not in the crucial
period after that. In addition, Keeton did not seriously
question, but in effect admitted, the unusual amount of
her errors at time of discharge; she did not question Sul-
livan's accusation of bad work as he pointed to the bun-
dles of her rejects in the office, but offered instead to
repair them.24 This admission is also supported by
testimony of Dunavent, who had been a repair girl and
had also done Keeton's operation in the past, to the effect
that if a label was sewn on crooked by the label-sewer,
this is readily noticeable to the operator attaching the
zipper and hoods. Hence, it is inferable that if Keeton had
been alert to notice any crooked labels not caused by her
in the last few days, she would have complained to
management at once, but more especially at the time of
discharge, rather than offering to repair crooked label de-
fects improperly charged to her. On the other hand,
testimony of Keeton and company pay records tend to
show that in her last 3 weeks she worked between 1 and
2 hours a week on repairs of other operators' work, which
she was normally given only when she had little or no
repairs on her own work; Middleton testified that this was
repair of crooked labels; the records also show that in the
same period, Mary Sudduth, who was transferred to han-
dle some of Keeton's repairs, increased in that work from
zero the first week to 7.38 hours in the week ending July
23; but while the payroll thus tends in part to support
Keeton's story, at the same time it furnishes some sup-
port for testimony of company witnesses that in the last
week Sudduth, among others, had to spend substantial
time on Keeton's repairs.
After considering all the conflicting evidence on the
amount of bad work , I am constrained to conclude that
Respondent has adduced cogent proof of unusual and in-
creasing bad work which is sufficient to rebut the proof
from Keeton and other witnesses of General Counsel to
the contrary.25 The cogent proof of bad work over an ex-
tended period before discharge, with one specific attempt
to help Keeton improve and constant reminders of con-
22 1 do not interpret McDaniel ' s testimony, as suggested by the Union,
as proof that she was allowed to stop her regular work and do nothing but
her own repairs for 2 weeks, without reprimand or penalty , in contrast to
the treatment accorded Keeton, for McDaniel's testimony does not
clearly indicate that she was doing only her own repairs, and since the 2
weeks she mentioned occurred after Keeton's discharge , when the plant
was plagued with repairs of many defects from Keeton 's machine, I con-
sider it more likely than not that McDaniel was working on Keeton's
repairs, not her own, particularly since Sullivan 's testimony establishes
that he never made an operator do all her own repairs if they were nu-
merous, but parcelled the repairs among several workers, for economic
reasons.
23 Ruby Aven, sister of Keeton who worked three machines away but
in front of her, also said Keeton had only three to four repairs a week, but
I discredit her story as coming from a partisan relative who was not in a
good position to observe Keeton and her work constantly, like Hillman,
the repair girl whose duty was to bring repairs back to the operators. For
the same reason I discredit similar testimony of Francis E . Haney, who
worked in front of Keeton and saw her machine , with any repairs waiting
there, only when she left her own machine for a break.
24 I find nothing significant in Sullivan's refusal to accept that offer, for
his credible testimony noted above indicates that if he had done so, she
would have spent most or all of her worktime on the repai rs, at the ex-
pense of regular work, which would have required a shutdown of the
whole assembly line, until she caught up on such repairs; this , of course,
was not economically feasible.
25 This detailed analysis of widely conflicting testimony on the extent of
mistakes and needed repairs has been necessary because Respondent
could not produce for the period in question written daily repair records
kept by the preexaminers which show the exact number and type ofde-
fects by each operator which have to be repaired. These records had ex-
isted and were subpenaed by General Counsel for production at the hear-
ing, but in argument on Respondent ' s motion to revoke the subpena,
Respondent represented that all such records covering 1966, except for a
6-week period in August and September, had been discarded by a com-
pany employee through error. While disappearance of vital and perhaps
conclusive records is always a suspicious circumstance calling for ex-
planation , General Counsel and the Union did not question this represen-
tation, made no request for adjournment to try to enforce the subpena, and
did not try to discredit the representation through examination of Sullivan
or any other company official . In addition , General Counsel admitted that
during investigation of the charges and in preparation for trial from
December 12, 1966, onward, Board agents did not avail themselves of the
right to examine and copy these records, or try to find any other seconda-
ry evidence if it existed, so as to perpetuate the data contained in the
records in some secondary and acceptable form which would have aided
the Trial Examiner and the Board at the hearing Hence, while existence
and production of these records would probably have shortened the
record and this Decision appreciably, I cannot in these circumstances
draw an inference unfavorable to Respondent 's defense from their non-
production , as requested by General Counsel.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinuance of defects, and the incidence of increasing bad
work thereafter, militates against a finding that her
discharge was abrupt or arbitrary. Lack of prior specific
warnings of discharge if she did not improve does not sup-
port such findings here because there is no proof that
Respondent at this plant had any practice of a mechanical
number of admonitions, reprimands, or warnings before
a final discharge. The union animus and unlawful
discharge of Dunavent also show a prima facie case of
discrimination and have their main effect in requiring
Respondent to adduce cogent proof to rebut that case, but
on all the facts here I conclude that Respondent has met
that burden. Therefore, while the issue is a close one, on
all the pertinent facts pro and con, I am constrained to
conclude that Respondent has adduced proof of bad work
and discharge for that reason which is adequate to rebut
the prima facie case of unlawful discharge, and General
Counsel has not sustained the ultimate burden of proving
by substantial evidence that Respondent discharged
Keeton because of her known or suspected union activi-
ty. I therefore grant Respondent's motion to dismiss as to
Keeton, and recommend that the complaint be dismissed
insofar as it relates to her discharge.
D. Alleged Coercion During the Union 's Campaign
As found above, the Union's organizing campaign
began sometime in August 1966, with discussion between
its organizers and groups of employees, and became for-
mal with open distribution of literature from September
onward.
On various unidentified dates from about August 1
through September, and once in October, top Supervisor
Martha Weeks was overheard by employee Francis E.
Haney to tell groups of girls at lunch or breaktime that
if the Union came into the plant they would no longer
have jobs, as the plant would move out.26 Such remarks
were clear threats of probable reprisal for union ad-
herence which were well calculated to restrain employees
from exercising a free choice of bargaining agent, and
thereby violated Section 8(a)(1) of the Act.
About a week before the election, Weeks approached
the machine of Vere Nese Williams, who worked along-
side employee Inez Hearon, and asked Williams if she
was going to vote for the Union. Williams said she would
not. Weeks then asked what the two girls had been
discussing, and Williams said it involved the Williams'
procurement of an FHA loan on a home they were build-
ing. Weeks said that if Williams voted for the Union, "you
won't have anywhere to work, and you can't pay for a
home, because the plant will close." These remarks in-
volved unlawful interrogation of a worker about her union
sentiments, as well as a clear coercive threat of job loss
through plant shutdown if the workers voted the Union
into the plant, and violated Section 8(a)(1) of the Act.
Sometime in the latter part of October, an antiunion
petition was circulated among workers by some workers
at a meeting in a community hall. Thereafter a worker sol-
icited some employees to sign copies at the plant. On an
unidentified date early in November, after Emma Jean
Cole had been so solicited and refused, Weeks called her
into the restroom and asked her why one Essie, a worker
sitting behind Cole, had "so much influence on you" that
Cole would not sign the petition. Cole denied Essie had
any control over her or kept her from signing, and that it
was not Sullivan's fault, but it was due to Weeks' own at-
titude toward Cole, consisting of angry looks and remarks
about her personal appearance. Cole volunteered that she
did not want a union, as Sullivan had always treated her
nicely, but she wanted Weeks to treat her the same way
so Cole could do her job properly. Weeks got upset, cried,
and complained the girls were all against her, and said
personal problems affected her attitude. Cole replied that,
if it would make Weeks feel better, Cole would sign the
petition, provided Weeks understood that Essie had not
influenced her against signing it. I find that Weeks' query
and accusation regarding Cole's failure to sign the peti-
tion was an unlawful inquiry into Cole's sentiments re-
garding the Union. In addition, her tearful implied
promise to treat Cole better if she would sign was a rather
artful but effective promise of benefit in the form of better
treatment if she would put herself on record against the
Union, which was likewise coercive. I find that Respond-
ent thereby violated Section 8(a)(1) of the Act. I find
similar unlawful coercion in Weeks' query of employee
Sarah Patterson in the second week in November
whether she had signed the petition, and when Patterson
said she had not, in Weeks' remark "By all means sign it,
we do not want a union in this plant."
When employee Betty McLain was approached in Oc-
tober to sign the antiunion petition, the soliciting em-
ployee told her that if she did not sign, she would be fired.
McLain at once sought out Sullivan and asked if this was
true. He replied "definitely no," that this petition was put
out by employees, not the Company, and that the only
time he could fire her was if she did not do her work right.
They then discussed the Union, with its advantages and
disadvantages. Sullivan told her he did not want a union
in the plant. In discussing wage rates, he indicated that if
the Union did come in, the Company could not pay higher
rates which might be demanded by the Union, and could
not agree to them in bargaining, because the jackets had
to be made at a certain cost so that they could be sold for
a specific price, and the Company could only pay the girls
at rates based on that cost, so that no matter what hap-
pened in bargaining the Company could not pay more
than certain rates in order to sell the jackets.27 I find here
no coercive threat of refusal to bargain with the Union on
rates, such as would have a tendency to impress McLain
with the futility of choice of the Union as bargaining
agent, but at most a presentation of Respondent's present
view of what its position would be on wages in bargaining
with the Union, based on its present economic situation
and the economic factors which controlled its costs and
wage rates it paid. As this incident appears to fall within
the allegations of paragraph 10 of the amended complaint,
I shall recommend that said portion of the complaint be
dismissed.
Cole and employee Shirley D. McDaniel often had
casual discussions with Sullivan at lunchtime during
1966, while eating on the front steps of the plant, in which
both often asked him questions about plant operations
and, during the Union's campaign, about his view on the
ss I find these facts on uncontradicted testimony of Haney, as Weeks
was not called by Respondent to testify. For the same reason, I credit
'testimony of other employee witnesses outlined hereafter which recounts
activities and remarks of Weeks.
27 I find this talk from a composite of credited testimony of Sullivan and
McLain; testimony of either at variance therewith is not credited.
MID STATES SPORTSWEAR, INC. 569
Union and its effect on the plant operation. In one such
talk in November shortly before the election, both girls
asked him how long the fall layoff would be,211 and he
replied that its length would depend on whether the
Union came into the plant. In the same discussion, Cole
asked him if the girls would be discharged if they signed
the antiunion petition, and he replied, "[no,] You are all
my girls ... I need all of you. I don't want any of you to
think you are going to get fired if you sign the petition or
if you don't."29 I find nothing coercive in Sullivan's re-
mark on this occasion; his equivocal remark about the ad-
vent of the Union affecting the length of a layoff was not
further explained, and is not directly or by implication in-
dicative of a possible or probable retaliation for em-
ployees' choice of the Union as bargaining agent.30
On one or more occasions in October and November,
antiunion employees distributed to workers at lunch or
breaktime cake with paper napkins marked "Vote No."
When Patterson and other girls got the cake in the last
week of October, they pinned the napkins on their
clothing voluntarily and wore them at work, and while
wearing it one day Weeks came past, stopped at Patter-
son's machine, reached over and repinned the napkin on
Patterson to make it straight, saying "Wear it at all times,
we do not want a union." When McDaniel got a similar
napkin on a date early in November, she took it to her
machine, but did not put it on her clothing. Weeks came
up shortly, and asked her where the napkin was. Mc-
Daniel said it was at her machine. Weeks told her to put
it on. When McDaniel refused, Weeks said "I will put it
on you," and at once picked it up, pinned it on Mc-
Daniel's blouse, saying "That looks nice , now wear it."
Once in the 2d or 3d week of November, when workers
at morning break received cake with napkins, Little put
the napkin in her purse. Shortly after Weeks came past
her machine, asked where the napkin was, and Little said,
"in my purse." Weeks asked why she had not pinned it on
her clothing. Little replied "I do not want it on, and I do
not have a pin." Weeks said she would get a pin, walked
away, and came back with another napkin and a pin,
asked where Little wanted it pinned on. Little said she did
not want it pinned on at all. Weeks said she would pin it
on her collar. Little repeated she did not want to wear it,
as it might hinder her in her work. Weeks replied she
would pin it on the back of her collar, and did so. Little
became angry, said she would take it off, and Weeks
replied "you had better leave it there." Weeks' query of
employees about wearing the antiunion napkin, and her
positive efforts, even against employees' wishes, to make
them wear the napkins, with orders to continue to wear
them, were coercive intrusions into employees' protected
rights to display or refuse to display their union or antiu-
nion sentiments , as they pleased, without interference
from management. I find that these actions violated Sec-
tion 8(a)(1) of the Act.31
In the week or two before the election , some antiunion
employees distributed small pins with the legend "Vote
No" to employees in the plant. When Inez Heaton got
hers, she wore it every day thereafter without comment
from management, except once when she, Vere Nese
Williams, and another girl did not wear them, and on this
date Manager Sullivan came to their machines at break-
time and asked where the buttons were. The girls said
they left them home Sullivan said "We want you to wear
these buttons, now we want to win this election 100%."
On November 25, as Sullivan passed the machine of
Betty Jean Porter Little during worktime, another
worker, Nancy McGann, told Sullivan that Little did not
have a "Vote No" pin. Sullivan said he did not think he
had any left, but would see if he could find one. He
started to walk away, then turned back with a pin in his
hand and gave it to Little, who pinned it on a box on her
machine. McGann told Sullivan that Little did not want
the plant to close, and she knew Little would "vote right,"
as she was too old to get work elsewhere. Sullivan replied
"We have confidence in Betty, she will vote right, she has
just bought a new car and has to pay for it." On Monday,
November 28, as repair girl Mary Francis Hillman was
giving garments back to Little to repair, she told Sullivan,
who was nearby, that Little was not wearing her "Vote
No" pin. Sullivan asked Little where it was, and why she
did not wear it. Little said it was on the end of her box,
where she could see it. Sullivan replied that he thought it
would look better and make her look prettier if she pinned
it on, where everybody could see it and know how she
felt. She replied that she did not want it pinned on her, for
she could see it on the box, and that she was as pretty as
she was going to be without any change. She laughed as
she said this, Sullivan and other girls nearby also laughed,
but he took the pin and pinned it on her. She said that if
the pin meant that she should "vote right," and if it was
right to vote as the pin said, then she would do so. She
laughed and Sullivan did also, saying, "I think that is the
best way to vote, the way the pin says." He then told her
"to be sure and wear it tomorrow." Little left it on her
blouse the rest of the day, but the next day she gave out
chewing gum at her machine, with a prounion saying on
the wrapper, to those workers who asked for it; Little was
an observer for the Union in the election. At or about the
same date, Sullivan asked McDaniel at her machine
where her "Vote No" pin was. She said it was in the box
at her machine. He asked why she did not put it on, and
she said she did not want to, showing him a perfumed
necklace she was wearing with another pin on it, and
commented that "Mine smells better than yours." He
smelled the necklace, smiled, and walked off.32 Sullivan's
interrogation about employees' failure or refusal to wear
the pins, suggestions that they wear them to show how
they felt (although some felt contrary to the admonition
on the pin), were coercive attempts by management to
compel employees to display their sentiments about the
Union, similar to those of Weeks, and Sullivan's intima-
tion to Little that she would "vote right" so that she could
pay for her car, in context of McGann's remarks about
possible closing of the plant if the vote was not "right,"
and Little's inability to get another job, amount to a plain
28 The plant had an economic layoff each fall which usually ran a month
or two, and involved varying numbers of workers, depending on business
conditions
29 This talk is found on a composite of credible testimony of Cole and
McDaniel, and admissions of Sullivan.
3o I make no finding on testimony of McDaniel regarding a similar talk
with Sullivan at the same location about June 1, 1966, in which she places
the threat of a plant shutdown in his mouth, for the incident, if it occurred,
is outside the 6-month statute of limitations in Section 10(b) of the Act
31 Murray Ohio Manufacturing Company, 156 NLRB 840, 854, The
Chas V Weise Co, 133 NLRB 765, Beiser Aviation Corporation, 135
NLRB 399,400; Ralph Wells & Co, 151 NLRB 1384, 1394
32 The "pin" incidents are based on credible testimony of the workers
directly involved, as corroborated in part by admissions of Sullivan.
Testimony of Sullivan in partial conflict with the findings is not credited.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercive reminder to Little that she might lose her job if
she did not "Vote No," as the pin suggested. By Sul-
livan's actions and remarks aforesaid, Respondent further
violated Section 8(a)(1) of the Act.33
On November 30, Sarah Patterson was on temporary
layoff, but was brought to the plant by a neighbor, Alice
McGregor, early in the morning so that she could vote as
soon as the polls opened. When she came in, she met Sul-
livan outside his office and asked to speak to him; he took
her out on the platform because someone was in his of-
fice. She remarked that she had come in to vote, and she
wanted to make it clear that she was not for the Union,
that some people had said she was out working for it, but
she would not vote against it. Sullivan merely replied,
"That's good," and told her to wait in the office and she
would be called when the polls were open. She asked Sul-
livan when she would be recalled to work, and he replied
that he could not tell her anything "until after today." I
find this much of the conversation from credited and mu-
tually corroborative testimony of Patterson and Sullivan.
Patterson also testified that Sullivan added after "until
after today" the words "If the Union goes in, we will pack
up and move." McGregor, who at the time was sitting in
her car 10-15 feet away preparing to drive off, says she
heard Patterson ask Sullivan what he would do "if the
Union came in," and that he then made the shutdown re-
mark. However, Patterson does not indicate she asked
the apparent question which triggered that reply, but puts
it as coming from Sullivan as a threat of shutdown
without preliminary question from her. Sullivan flatly de-
nied that he made the threat of shutdown, but only that he
would recall her when there was work on her operation.
In view of the conflict between Patterson and McGregor
on the crucial preliminary remarks and question, and hav-
ing seen and heard Patterson who appeared to be an out-
spoken person, I am more inclined to believe that she did
most of the talking about her lack of connection with the
Union, but did not go so far as to probe into Sullivan's
probable reaction to a union victory; I credit his denial of
any plant shutdown, and discredit the testimony of the
two women to the contrary. Hence, I find no violation of
the Act by Sullivan in this conversation.
E. The Objections to the Election
The crucial period within which Respondent's conduct
must be appraised runs between October 7, 1966, the
date the Union filed its petition, and November 30, 1966,
the election date. It is well settled that employer conduct
which is coercive and violates Section 8(a)(1) of the Act
a fortiori is the type of conduct which interferes with a
free choice by employees in an election, if it occurs within
the crucial period. Dal-Tex Optical Company, Inc., 137
NLRB 1782, 1786. Accordingly, I find that the following
violations of Section 8(a)(1) found above, which occurred
after October 7, 1966, amount to conduct interfering with
the free choice of bargaining agent by employees in the
election, and warrant the Board in sustaining Objection
1 to the election, as well as the quasi-objection raised by
the Regional Director in his report based on the alleged
threats by supervisors, and in setting the election aside:
(1) The interrogations of employees in October and
November by Weeks about their union sentiments and
why they did not sign an antiunion petition, her persua-
sion of Cole to sign it by promise of better personal treat-
ment, and plain orders to other employees to sign it, and
her threats of job loss and personal economic loss to em-
ployees through closure of the plant if they voted for the
Union.
(2) Weeks' interrogation of workers in the same period
about wearing an antiunion slogan, and affirmative ef-
forts, with use of physical measures against their will, to
make them display such slogans on their person.
(3) Sullivan's similar queries of employees about their
failure to wear "Vote No" pins, suggestions that they
should wear them, and threat of job loss if they did not
"vote right" as the pin suggested.
Although Respondent violated the Act by issuance of
the illegal no-solicitation rule on July 3, 1966, and main-
taining it until sometime in Setpember, it was replaced
sometime before October 7, 1966, by a rule which is not
questioned. Hence, I find nothing in the issuance, main-
tenance, and final withdrawal of the illegal rule prior to
the crucial period which would warrant setting the elec-
tion aside.34
The Pay Raises
The record shows that in the fall of 1966 Respondent
received an order for garments of a size larger than it had
ever made at this plant. When assembly began the em-
ployee who ticketed garments with the proper piece rates
put the rate marker for smaller sizes on these garments.
An operator asked Sullivan and Howard Machson, his in-
dustrial engineer, about the fairness of using that rate for
the larger sizes, so Sullivan checked the rate control
records, saw the error, and directed the supervisors to
change to the proper rates on the larger sizes, which was
done on or about October 7 and 11, with operators
receiving the benefit of the higher rate as they worked on
the larger garments. As this was done, Machson told
some employees they were getting the new rates because
it took longer to do their operations on those sizes than
the smaller ones. In course of the changeover, however,
Machson conducted time studies of the operation on the
larger sizes in order to prove out the rate, and while doing
this he told various operators during October that if they
sewed 400 jackets in a certain period of time, they would
get a bonus of $10. They received the bonus on the fol-
lowing Friday after they had achieved that product ion. In
discussions with workers about the new rate and the
bonus for production, there was no mention of the Union
or its pending campaign. While the raises were given in
the crucial period and about a month before the election,
and I have found that in and before this period Respond-
ent had engaged in unfair labor practices of the type
clearly calculated to coerce employees in their choice of
representatives, nevertheless it is also clear from the
whole record on this subject that the rate changes were
put into effect only after employees had shown to the
management the inequity of paying the lower piece rate
for the larger garments, and after the management in-
vestigation showed that use of the lower rate was a cleri-
cal error, which it hastened to correct in fairness to the
33 See fn 31, supra
34 In view of the coercive actions during the crucial period which afford
ample basis for setting aside the election, I need not consider the coercion
inherent in the issuance of the rule in order to evaluate the weight to be
given later conduct within the critical period, as in M & W Marine Ways,
Inc, 165 NLRB 191.
MID STATES SPORTSWEAR , INC. 571
employees , and that the need and grant of the higher rate
came only because of receipt of an order for the larger
sizes from a large customer , which order on the record
here clearly had no relation to the pendency or progress
of the Union 's election ; and in addition , the new rate ob-
viously had the effect of maintaining employees' total
compensation while working on the larger sizes , prevent-
ing a loss of pay when their rate of production was slowed
down by the more difficult and time-consuming work on
the larger garments . It is also clear that the bonuses were
given for achievement of a certain rate of production on
those garments in the normal course of Respondent's
testing and proving out the propriety of the new rates. In
all these circumstances , I must conclude that Respondent
has adduced cogent evidence to show that the raises and
bonuses were meritorious and given for purely business
reasons, which is sufficient to rebut any inference that
they amounted to a deliberate grant of an additional
benefit or gift, without any quid pro quo in work done, or
that the grants were deliberately timed at a crucial point
in the campaign or so close to the election as to raise a
reasonable inference that they were intended or likely to
persuade employees to vote against the Union . 35 I there-
fore conclude that this conduct was not such as to affect
the results of the election and require that it be set aside.36
Objections 2 and 5 relate to employer literature issued
between October 31 and November 30 , 1966.37
Examination of the documents in the light of contem-
poraneous counterpropaganda put out by the Union in-
dicates that the main thrust of the company arguments
dealt with the disadvantages of having a union in the
plant, including the possible unpleasant consequences of
workers being called out on strike by the Union in the
event of disputes with the Employer, and possible plant
shutdowns ensuing . The Union replied to this argument
by at least one leaflet , issued rather late in the campaign
which strove in plain words to "debunk" the employer ar-
guments about strikes by indicating that in at least one
strike, by the Machinists ' Union against the airlines, the
employees themselves made the decision to strike and to
continue it, contrary to the advice of union leadership; the
main thrust of this leaflet was that the employees them-
selves were the final arbiters on whether there would be
a strike. In the entire context of the literature from both
sides, I cannot say that the company literature was so
dominant that the employees were unable to evaluate the
arguments both ways on the questions of strikes and their
causation , or that the employees were prevented by the
company , leaflets from making a free choice about the
Union. The same holds true for the company leaflet on
November 30, 1966, which was issued in reply to a prior
leaflet of the Union dealing with another plant affiliated
with Respondent and which had been organized by the
Union; when considered together , the company leaflet
cannot be considered misleading on the question of com-
mon ownership of the two plants or as indicating that the
other plant was closed down only because and after it
became unionized I therefore recommend that Objections
2 and 5 be overruled. 38
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations
described in section I, above, have a close , intimate, and
substantial relationship to trade, traffic , and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Ester J . Dunavent on July 12, 1966 , I recommend that
Respondent offer her immediate and full reinstatement to
her former or a substantially equivalent position without
prejudice to seniority or other rights and privileges, and
make her whole for any loss of earnings she may have suf-
fered as a result of the discrimination against her , by pay-
ment to her of a sum of money equal to the amounts she
would have earned from the date of discriminatory
discharge to the date of a proper offer of reinstatement,
less net earnings during said period, the backpay to be
computed in the manner established in F. W . Woolworth
Company, 90 NLRB 289, and including interest at the
rate of 6 percent per annum , as required by Isis Plumbing
& Heating Co ., 138 NLRB 716. The illegal discharge
also warrants a broad cease-and-desist order and notice.
CONCLUSIONS OF LAW
1. The Union is a labor organization, and Respondent
is engaged in commerce, within the meaning of the Act.
2. By unlawfully discharging Ester J. Dunavent as
found above, the Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
3. By interfering with, restraining , and coercing its em-
ployees in the exercise of their rights guaranteed them by
Section 7 of the Act , by said discharge and other conduct
found above, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Respondent has not violated the Act by its
discharge of Clara Ruth Keeton , or by conduct alleged in
the complaint other than as found above.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of Law and the entire record in this case, it is
recommended that Respondent , Mid States Sportswear,
Inc., its officers, agents , successors , and assigns, shall:
1. Cease and desist from:
35 See M & W Marine Ways, Inc., supra , (TXD section 11,D), and
Jewell Smokeless Corporation , 163 NLRB 651 ; and cf. N.LR.B. v.
Exchange Parts Company , 375 U.S. 405 and other cases cited by the
Union which I consider inapposite on the facts-
3s I note that while the wage and bonus grants were included in the
charge, they were not alleged in the complaint as an unfair labor practice,
and the Regional Director made no finding about them after his own in-
vestigation in the representation case.
37 The Union in its brief abandoned objection 3 relating to the Em-
ployer's leaflet of November 8, 1966
38 I have carefully considered various cases cited by the Union on this
subject, and while various decisions contain some facts similar to these in-
volved in the company literature here , the overall picture in each of them
is different so that I do not consider them apposite or controlling here
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discouraging membership in Amalgamated
Clothing Workers of America, AFL-CIO, or in any other
labor organization of its employees, by discharging any of
its employees or discriminating in any other manner in
respect to their hire or tenure of employment, or any term
or condition of employment.
(b) Interrogating employees about their union activi-
ties, threatening them with loss of employment or income
through plant shutdown if the above Union or any other
labor organization organizes the plant or they vote for it
in an election; requesting, or persuading them by offers of
benefits, to sign petitions or documents against said
Union or any other labor organization; requesting, per-
suading, warning, or compelling employees to wear and
display on their persons antiunion buttons or documents;
issuing or maintaining a plant rule preventing employees
from soliciting for the Union or any other labor organiza-
tion or for other concerted or mutual purposes on plant
property in nonworking areas on nonworking time.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Ester J. Dunavent immediate and full rein-
statement to her former or substantially equivalent posi-
tion, without prejudice to seniority or other rights and
privileges, and make her whole for airy loss of pay suf-
fered by reason of Respondent's discrimination against
her, in the manner set forth in the section hereof entitled
"The Remedy" and notify her if presently serving in the
Armed Forces of the United States of her right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(c) Post at its Sumner, Mississippi, plant copies of the
attached notice marked "Appendix."39 Copies of said
notice, on forms provided by the Regional Director for
Region 26, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.40
IT IS FURTHER RECOMMENDED that the election in Case
26-RC-2767 be set aside and a new election held at an
appropriate time.
90 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT interrogate our employees about
their union activities, threaten them with loss of em-
ployment or income through plant shutdown if Amal-
gamated Clothing Workers of America, AFL-CIO,
or any other labor organization organizes our plant
or if they vote for such labor organization in an elec-
tion; request or persuade them by offers of benefits,
to sign petitions or documents against said Union or
any other labor organization; request, persuade,
warn, or compel them to wear and display on their
persons antiunion buttons or documents; issue or
maintain a plant rule prohibiting them from solicit-
ing for the above Union or any other labor organiza-
tion or for other concerted or mutual purposes on
plant property in nonworking areas on nonworking
time.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
WE WILL NOT discourage membership in the
above-named Union, or any other labor organization
of our Employees, by discharging any of our em-
ployees or discriminating in any other manner in
respect to their hire or tenure of employment or any
term or condition of employment.
WE WILL offer to Ester J. Dunavent immediate
and full reinstatement to her former or substantially
equivalent position, without prejudice to her seniori-
ty or other rights and privileges, and make her whole
for any loss of earnings suffered as a result of our dis-
crimination against her.
All our employees are free to become or remain or to
refrain from becoming or remaining members of Amalga-
mated Clothing Workers of America, AFL-CIO, or any
other labor organization.
30 In the event that this Recommended Order is adopted by the Board,
the words `a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
MID STATES SPORTSWEAR,
INC.
(Employer)
Dated By
(Representative ) (Title)
MID STATES SPORTSWEAR, INC.
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of her right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
573
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 746 Federal
Office Building, 167 North Main Street, Memphis, Ten-
nessee 38103, Telephone 534-3161.