Mitchell Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 261 (N.L.R.B. 1970)

MITCHELL MANUFACTURING, INC.
Mitchell Manufacturing, Inc. and Amalgamated Cloth-
ing Workers of America , AFL-CIO. Case
26-CA-3506
October 31, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On June 4, 1970, Trial Examiner Milton Janus
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed
exceptions, and the Charging Party cross-exceptions,
to the Trial Examiner's Decision, and supporting
briefs. The Respondent filed cross-exceptions to the
Decision and a brief in support thereof and in answer
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National 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 no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Exam-
iner 's Decision, the exceptions, cross-exceptions, and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modification
noted herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Mitchell Manufacturing, Inc., Corinth, Mississippi,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with loss of job opportu-
nities because of their union activities.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its plant in Corinth, Mississippi, copies of
the attached notice marked "Appendix." 2 Copies of
said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by the
186 NLRB No. 42
261
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 26, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
other than those found herein.
' The Trial Examiner found , for reasons stated in his Decision , that the
Respondent Company's president, James Mitchell, did not violate Section
8(a)(1) of the Act , when , in a speech given to employees on September 30,
1969, he said that "if we [employees ] messed around with the union and
lost our jobs there , that no one else would hire us because we had worked
for the union, or helped to organize the union ," or " if we lost our job
because of the union , that nobody would hire us " We disagree with the
Trial Examiner 's conclusions In our view , President Mitchell 's remarks
contained a veiled threat both that they would suffer loss of employment
by virtue of their union activities and that he would use his influence to
prejudice the employees ' opportunities for employment elsewhere We find,
therefore , contrary to the Trial Examiner , that these remarks were coercive,
and constituted a clear violation of Section 8(a)(1) of the Act
2 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with loss
of job opportunities because of their union
activities.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees in
the exercise of their rights guaranteed in Section 7
of the National Labor Relations Act. All our
employees are free to become or remain members
of Amalgamated Clothing Workers of America,
AFL-CIO , or any other union , or are free to
refrain from becoming or remaining members of
the Amalgamated Clothing Workers of America,
AFL-CIO , or any other union.
MITCHELL
MANUFACTURING, INC.
(Employer)
Dated By
(Representative ) (Title)
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 746 Federal Office Building, 167 North Main
Street, Memphis, Tennessee 38103, Telephone
901-534-3161.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MILTON JANUS, Trial Examiner : Amalgamated Clothing
Workers of America , AFL-CIO (hereafter called the
Union), filed a charge on October 27, 1969, and an
amended charge on December 8, 1969 . A complaint based
thereon was issued against Mitchell Manufacturing, Inc.
(hereafter , the Respondent or the Company) on December
10, 1969 , alleging violations of Section 8(a)(1) and (3) of the
Act.
I conducted a hearing in this matter at Corinth,
Mississippi , on March 10 and 11, 1970 . The General
Counsel argued orally at the close of the hearing , while the
Respondent filed a brief thereafter . The arguments thus
presented have been fully considered.
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Respondent is a corporation with its principal office
located at Corinth, Mississippi, where it is engaged in the
manufacture of men's shirts. During the past year it
received at its Corinth location goods and materials valued
in excess of $50,000 directly from points outside the State of
Mississippi, and during the same period of time, it sold and
shipped from its plant, goods and materials valued in excess
of $50,000 directly to points outside the State of Mississippi.
I find that Respondent is an employer engaged in
commerce within the meaning of the Act.
supervisory status is in question, but for reasons to be
explained later, I find it unnecessary to resolve that issue.
Mitchell has operated the Corinth plant about 7 or 8
years, and during that period he has heard rumors about
incipient or actual union organization which, according to
him, he has always ignored. The latest attempt at
organization began in September 1969, when union
organizers got in touch with Margie Suggs, then an
employee of the Company, at her request. She met with
organizers Davis and Forsyth on September 8, and she then
spoke to a number of employees, some of whom agreed to
help in preliminary organization. A meeting with the union
organizers was held the evening of September 16 at the
labor center in downtown Corinth. It was attended by 13
employees, including Suggs. Literature and authorization
cards were handed out for distribution to other employees,
and those present were advised to be careful about their
activities so that company officials would not become
aware of them.
Suggs and another volunteer, Virginia Carter, spoke to
employees outside the plant entrance during the lunch
periods for the next 3 days, September 17-19, and obtained
a few signed authorization cards.
The following Monday, September 22, shortly before
noon, Suggs was discharged. The critical issues as to the
discharge are whether the Company knew of her activities
on behalf of the Union by that date, and whether that
caused her discharge.
About a week later, on September 30, Mitchell made
identical speeches to the assembled employees on the two
floors of the plant regarding the Union's campaign, he
spoke without notes or a prepared text. The content of the
speeches, at least in certain critical parts, is in dispute. The
complaint alleges that Mitchell in these speeches violated
Section 8(a)(1) by threatening the employees that if they
selected the Union, it would be unable to obtain any
benefits for them, and there would be frequent strikes; that
there would be less work, loss of jobs, and plant closure;
and that other companies would not hire them because of
their union activities.
The Union's campaign at the plant continued thereafter,
with the distribution of literature and solicitation of
employees. It was apparently still active in March 1970, at
the time of this hearing. No additional violations of Section
8(a)(1) or (3) are alleged to have occurred after September
30.
H. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America , AFL-CIO,
is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
BACKGROUND AND ISSUES
From 450 to 500 employees, mainly women, are
employed at the Company's Corinth plant in the prod-
uction of men's shirts. James Mitchell is the company
president and its main operating official. He is assisted by
four supervisors, among them his wife, Opal, who is in
charge of pressing, and Hazel Benjamin, in charge of
stitching. There are also a number of floor-ladies whose
The discharge of Margie Suggs
The events of September 22
Suggs had been employed at the plant about 4 years, her
last job being as operator of a manual front button hole
machine. The Company had recently installed two
automatic button hole machines capable of much greater
production with a single operator than the old type of
machine. The new machines were not yet in full operating
condition, and on September 22, one of them was shut
down. Suggs was working at the only old type front button
hole machine on the second floor. Mitchell testified that
with one of the new machines out of commission, he was
worried about meeting the plant's requirements for button
MITCHELL MANUFACTURING, INC.
hole panels, since he had no inventory of such panels, and
whatever was produced was sent immediately to the next
operation, assembling the shirt.
Working hours were from 7 a.m. to noon, and from 1 to 4
p.m. Employees were expected to be at their stations and
ready to begin work by 7 a.m. There was an official break
about 9:30 a.m., but employees were not prohibited from
leaving their machines at other times. Smoking stands were
available and employees could leave their machines
without permission, either to smoke or to go to the
restrooms. There were no stated rules about the frequency
of visits to the restrooms, but management did what it
could to discourage excessive resort to these facilities since
it was aware that they were also used as a general meeting
place. Women employees had been warned in the past
about excessive use, and over the past few years, four or five
employees had been discharged for continued abuse of
their privilege to go there without pernussion. Nevertheless,
it was not uncommon for some of the women, including
floor-ladies, to retire to the restrooms on fairly predictable
schedules, and to spend more time there than was strictly
necessary.
Monday morning, September 22, Suggs began work at
her machine at 7 a.m., as scheduled. Mitchell was on the
second floor about 10 minutes later, and saw Suggs away
from her machine, talking to Virginia Carter, whose
machine was three or four rows away from that of Suggs.
Mitchell watched them for a few minutes and then went
over to ask Suggs what she was doing. Suggs said she was
looking for thread. Mitchell told her that she couldn't find
any thread at Carter's machine, to get her thread (which
was kept in boxes nearby) and to get back to work. Suggs'
testimony as to this incident is that she had to find suitable
thread and had gone over to the boxes near Carter's
machine, and had said no more than "hello" to her friend
before Mitchell came up to her. I credit Mitchell's version
of the incident, and find that Suggs was standing at Carter's
machine engaged in conversation with her while Mitchell
watched them. I believe that Suggs' primary purpose in
leaving her machine just a few minutes after work had
started was to talk to her friend rather than to find thread,
since it is unlikely that she would have begun work just a
few minutes earlier without checking whether she already
had the thread needed to operate her machine.
Mitchell had occasion to return to the second floor that
morning three or four times, and each time found Suggs
away from her machine. Suggs admitted that she had gone
to the restroom that morning about 8:30, 10:30 and 11:30
a.m., besides taking her official break at 9:30, which she
spent talking to friends.
When Mitchell observed Suggs' latest absence about
11:40, he sent for Hazel Benjamin, the stitching supervisor,
and told her to ask Suggs if she was ill, and if she was not, to
discharge her. Benjamin did so, and when Suggs said she
was not ill, Benjamin said that Mitchell had said to fire her.
Suggs asked Benjamin if she was being fired for going to the
restroom, and Benjamin said yes. Suggs then asked her
whether she didn't usually warn people before firing them,
I Suggs' production record for the previous week indicates that she
averaged about 860 panels per day If Suggs had been permitted to finish
out the day, she would apparently have produced about that number Her
263
and Benjamin said she did but that Mitchell didn't.
According to Benjamin, she told Suggs at this point that
Mitchell had already spoken to her that morning about
being away from her machine.
Suggs then went to the office and received three checks,
two of which were already prepared, covering her pay for
periods which were already due but were customarily held
back. The third check was for 5 hours pay that morning,
and was signed by an office employee while Suggs waited.
Suggs did not know whether the third check had been fully
prepared, except for signature, before she arrived at the
office.
The only significant variation between the testimony of
Suggs and Benjamin is whether Suggs was asked before her
discharge what her production had been that morning.
Suggs testified that first her floorlady, Hogan, and then
Benjamin had asked her what she had turned out so far.
Suggs told them it was about 600.1 Hogan did not testify,
and Benjamin denied asking Suggs about her production.
Suggs also testified, this time without contradiction, that
no one had told her that morning that more production was
needed from her machine because of the shutdown of one
of the automatic machines. She also testified that she had
not gone to the restroom any oftener that morning than was
her usual practice, and that she had never been warned
before that she was going too frequently.
Respondent contends that Mitchell decided to discharge
Suggs because of her continued absences from her machine
at a time when her production was especially needed. Yet it
is strange, if that was the only reason, that neither Mitchell
nor Benjamin told her that her production was needed
more that day than any other day, and neither asked her to
make a special effort to increase her production. If Mitchell
was searching for a pretext to fire her, it seems he was
having trouble finding one to fit the situation that morning,
since her production was average, she had not been told
that there was any shortage of panels, and she was not away
from her machine oftener than usual or oftener than many
other employees. But Respondent does not attempt to
argue that Mitchell's decision was arrived at rationally and
dispassionately. Rather, it is argued, Mitchell was initially
angered by Suggs leaving her machine so soon after the
start of work to talk to another employee, and became
progressively more upset to find that every time he went
upstairs he found her away from her machine. His decision
to fire her was not premeditated but resulted from his anger
and frustration at the moment.
But Respondent's argument cuts both ways, and the
General Counsel contends that Mitchell's anger, because it
was disproportionate to Suggs' actions that morning was, in
fact, selfinduced. Thus, the lack of previous warnings, and
the fact that Suggs had not really abused the restroom
privileges at the cost of her normal production indicate, in
the General Counsel's view, that Mitchell was relying on a
pretext to conceal his intention to punish Suggs for her
union adherence. Respondent's rejoinder to that argument
is that it knew nothing about any connection between
Suggs and the Union.
quota was 1100 but she rarely if ever made that figure, apparently without
objection from the Company. Part of the reason for her failure to make her
quota was that sufficient work was not always available
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence as to Respondent's knowledge of
union activities up to September 22
Benjamin testified that she passed on to Mitchell a
rumor, passed on to her by another supervisor, that there
had been a union meeting downtown, and that she had
probably heard this before Suggs was discharged. She
denied, however, that anyone had told her who was at the
meeting or that Suggs had been involved in it. Benjamin
also testified that she ate her lunch in the plant and had not
seen Suggs talking to employees in front of the plant on any
of the 3 days following the meeting of September 16.
Direct observation by supervisors of Suggs' solicitation of
employees outside the plant is also not established by the
evidence. On one of these days a floorlady, Beulah Mitchell
(not related to the president of the Company), was sitting in
her car with her brother in front of the plant talking to him
about personal matters. She did not recall seeing either
Suggs or Carter at that time, which is understandable in
view of the movement of employees around the plant
entrance during the lunch hour. I credit her testimony, thus
making it unnecessary to decide whether floorladies are
supervisors.
Mitchell's office is just inside the plant near one of the
two sets of steps leading into the building. Suggs and Carter
were on the steps leading to Mitchell's office one of the
days when they were soliciting employees on behalf of the
Union, but neither could say that Mitchell had seen them.
As a matter of fact, Suggs testified that they could not have
been observed on the steps since the windows in Mitchell's
office did not overlook their position.
An employee, Devers, testified that she had told Hazel
Benjamin that another employee, Rushing, had asked her
to sign an authorization card and had also told her that she
ought to sign because James and Opal (Mitchell) were for
it. Neither Devers nor Benjamin would admit that Suggs'
name had come up in this connection. In any event, it is
probable that Devers passed her information on to
Benjamin after Suggs was discharged, since Benjamin had
passed on to Mitchell the rumor going around that he and
his wife were for the Union just a day or two before
Mitchell, according to his testimony, decided to scotch the
rumor by calling the employee meetings of September 30.
Benjamin specifically testified that Devers spoke to her
after Suggs had been discharged.
There is then no evidence, direct or circumstantial, that
any supervisor observed Suggs or Carter on any of the 3
days they solicited for the Union at or near the plant
entrance, nor is there any evidence that Respondent
interrogated anyone about the September 16 union
meeting, or about the later activities of Suggs or Carter. Nor
can the presumption be indulged in that Respondent must
have learned about Suggs because it had quickly learned
that a union meeting had been held. Assuming that the
Company learned about the meeting from an employee
2 Kayser-Roth Hosiery Co., Inc., 166 NLRB 372; Saxon Paint Stores,
Inc., 160 NLRB 1757; N.LR.B. v. Joseph Antell, Inc. and N.LR.B. v.
Malone Knitting Company, 358 F.2d 880 (C.A. 1). Cf. Howard Knit
Products, Inc., 174 NLRB No. 68, a case somewhat similar to this, where
the Board affirmed a Trial Examiner's finding that the Company knew of
an employee 's support for a union despite the lack of any direct evidence
on the point . In that case, the dischargee had made little or no effort to
informer, it cannot also be assumed that he would also have
revealed the names of any of those attending. It is of course
possible that there was an informer since Suggs had talked
to at least 20 employees, each of whom could have passed it
on to others, so that it should surprise no one familiar with
plant grapevines if a supervisor quickly became aware of
what was going on. However, a finding that the Company
had learned before September 22 that it was Suggs who had
brought the Union in or who had solicited employees
among the crowd near the plant entrance can be based only
on what I regard as a likely possibility. But what is possible,
or what may even seem to be probable is not, we have been
taught, a substitute for evidence.
I have also considered whether the possibility of
company knowledge of Suggs' union activities is not
reinforced by disbelief of the Company's explanation for
the discharge. If the explanation were shown to be false,
then an inference is warranted that another reason was
being concealed. There is an element of arbitrariness about
the discharge of an average employee without prior
warning for what had not previously been considered
egregious conduct, but it can also be viewed as a
spontaneous reaction by Mitchell to his frustration over the
shortage of button hole panels that morning and Suggs'
repeated absences from her machine. It is true that Suggs
was not wholly responsible for that shortage nor was she
asked to extend more than normal effort to relieve it. But
granting all this, I do not find that Mitchell's stated reasons
for the discharge are so implausible that he must have had a
concealed reason for getting rid of Suggs. On the whole, I
am not satisfied that the General Counsel has established
by a preponderance of the testimony, that Mitchell
discharged Suggs because she had collaborated with the
Union, and I shall therefore recommend dismissal of the
Section 8(a)(3) allegation.2
Mitchell's speech of September 30
The testimony on behalf of the General Counsel as to
Mitchell's speech comes from employees Bonnie Smith,
Virginia Carter, Margaret Jones, and Zona Richards, all of
whom work on the second floor and heard the same speech.
Smith and Richards gave the most detailed reports, and I
will set them out below, almost verbatim, as the best way to
appreciate their total impact.
Smith testified as follows about the speech:
He came up the stairs and he told us to turn off our
motors and all gather round, that he was going to talk to
us . . . that he guessed some of us already knew what he
was going to tell us, but if he had a battle to fight, he
didn't want to fight it in the dark; he wanted to know
what he was fighting, was the reason he hadn't already
spoke to us.
He said, "You know there's a union trying to get in
down here," and he said, "We don't need a union. They
conceal her activities , had been active in solicting other employees for
about a month and, on the day of her discharge , gave an employee a union
card within 30 feet of a supervisor . In any event, the Trial Examiner also
found the discharge unlawful even if the Company had no knowledge of
her union activities because the Company's "crackdown" program,
pursuant to which she was discharged, was instituted for antiunion reasons.
MITCHELL MANUFACTURING, INC. 265
can't do anything for us. They'll just take your money
and make you big promises. They can't help you any."
He said that the reason he couldn 't pay us any more
than he was paying us was on account of the foreign
markets ; . . . they could make the shirts so much
cheaper and ship them to the United States than they
could be made here.
He said if we messed around with the union and lost
our jobs there , that no one else would hire us because
we had worked for the union , or helped to organize the
union .. .
And he said that we'd probably be out on strike the
biggest part of the time, and while we were out there
walking the picket line he'd just be hiring new hands
and working right along . . . and that we couldn't draw
our unemployment compensation.
Then he was talking about a plant up at Selmer, that
the reason they had to close down was because they
were organized , they didn't get orders after they were
organized at the plant . Said the man tried to sell it to
him, and he didn't need it, and a few days later he was
in Atlanta , met the same man on the street , and they
had one down there that had been organized, and asked
him about selling him that one, and he told him he still
didn't need it ... .
Well, he told us several different times that we didn't
need a union down there; that they couldn't do
anything for us; that they'd only take our money and
make us big promises , but they wouldn't help us any.
Richards' testimony as to Mitchell's speech is as follows:
He said that when he had something to fight he wanted
to know what he was fighting . . . that we all knew that
the union was trying to come in . He said we didn't need
a union , we couldn 't afford a union, ... some of us, our
husbands was working and making a living, and that
some of us made our own living and that if we went on
strike, who would pay our bills, that the union would
not pay our bills.
He also said that if we were on strike we could not
draw our unemployment and that if we lost our job
because of the union, that nobody would hire us.
From this he went into the imports that was brought
into the United States, and about how cheap they could
sell their product compared to ours because of their
labor being so much cheaper than ours; that he
definitely could not pay any more because if he raised
... our salaries , he would have to raise the price of his
product and, if he raised that, he couldn't sell it and that
we wouldn't get any work because of this.
From that he went on to tell us about a guy offering
to sell him a plant at Selmer, and that he told him he did
not need this plant because it was unionized , and then
he was offered a chance to buy the Martin Manufactur-
ing Company at Ramer and that he didn't need this
because it was unionized .. .
He asked Tommie Rushing if she wasn't employed at
the Selmer Manufacturing Company when they closed
the door, and if it wasn 't because of the union, and she
said that they didn't have any orders and that they were
forced to close down.
He also asked Hazel Benjamin - that's our main
supervisor - if she didn't have a neighbor working at
Weaver's, and Hazel told him that she did have one
working down there, and that she had worked three
days that past week. He said that Weaver had a union
product, a brand name that they could sell, and it could
afford to be under a union, ... that he just could not
unionize and sell his product.
He told us that if went on strike, we couldn't draw
our unemployment and, if we lost our job because of the
union, nobody would hire us and from this he went on
to say if we knew him, he would be on strike every 30
minutes.
Mitchell testified that he called the meeting of September
30, to answer the rumor which he had heard from his wife,
through Hazel Benjamin who had heard it from Devers,
who had heard it from Rushing, to the effect that he and his
wife were supporting the Union's organizing efforts.
Whether the rumor was widespread or whether it was
limited to the chain of communication I have noted is not
material . Mitchell 's true motive for calling the meeting need
not be determined; the only question to be answered is
whether anything he said in the speech violated Section
8(a)(1).
According to Mitchell, substantially corroborated by
Benjamin, he started off by telling the employees that he
and his wife wanted no part of the Union and that he was
opposed to it because of the competition of imports
produced at much lower hourly wages than he was paying.
He then told them about a mill in Selmer which he had sold
some years ago and which he would not buy back,
presumably because it was now unionized . He mentioned a
number of plants in the area, asserting that those which
were unionized were now working part time. Three or four
times during the speech, he told the employees that he was
not threatening them, and that they could either join or not
join the Union.
He also told them that he had lost a lot of employees to a
new plant in the area which made electric motors, and that
the needle industry could not compete with that type of
plant, that he hated to see them go but he was proud to see
them do better by leaving.
He did not recall saying anything about strikes other than
that they would not be able to draw their unemployment
compensation. He denied saying that if the Union came in
there would be less work, loss of jobs or that the plant
would close, and he could not recall saying that if the
Union came in other companies would not hire them
because they had been mixed up with the Union.
There is substantial agreement between Mitchell and
Benjamin on the one hand, and the General Counsel's
witnesses on the other, that Mitchell emphasized in his
speech that a unionized plant in the needle industry had
more difficulty competing with foreign imports than a
nonunion plant, and that it ran the danger of losing orders
and going on short time. I think this is a legitimate
expression of possible economic effects, whether or not it
can be proved to be true in the case of this particular plant.
Mitchell was not saying that he would close the plant if the
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union got in, but only that he would have more intense
competition from imports.
As to the effect of the employees ' striking if they selected
the Union , much of what Smith and Richards testified to
seems to me not to be a threat of reprisals. An employer
may replace strikers , which is what Smith reported Mitchell
as saying, and strikers are not entitled in most States, to
draw unemployment compensation . I see no threat that
bargaining would be futile , in the testimony of the witnesses
for the General Counsel that Mitchell had said the Union
couldn 't do anything for them . The context in which it was
said relates to what the Union was promising them, how
much it would cost the employees , and that foreign
competition , in effect, restricted both his and the Union's
scope for bargaining.
The closest question , in my opinion, is whether Mitchell
threatened his employees by telling them that if they lost
their jobs because of the Union , no one would hire them. It
seems to me , however , that Mitchell was attributing to
other employers , over whom he had no control or influence,
a disinclination to hire either employees who might be on
strike at his plant or who were active union adherents. Such
action by other employers could well be an unfair labor
practice on their parts , but nothing Mitchell is reported to
have said fairly bears the implication that he personally
would, in an act of vindictiveness , prejudice their
opportunities for employment elsewhere.
I find that the versions of the witnesses for the General
Counsel , as to Mitchell's speech of September 30, are to be
credited over those of Mitchell and Benjamin , but that, for
the reasons stated above , I believe that nothing Mitchell
said on that occasion constitutes a violation of Section
8(a)(1). As I have found nothing alleged in the complaint to
be in fact violative of the Act , I shall recommend its
dismissal in its entirety.
CONCLUSIONS OF LAW
1. Mitchell Manufacturing, Inc., is engaged in com-
merce and in activities affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Amalgamated Clothing Workers of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be
dismissed in its entirety.