Sew-Magic, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1970

184 N.L.R.B. 924 (N.L.R.B. 1970)

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sew-Magic , Inc. and International Ladies' Garment
Workers' Union , AFL--CIO. Case 1 1-CA-4000
August 18, 1970
DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND JENKINS
On April 29, 1970, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . He also found that the Respondent had not
engaged in certain other unfair labor practices al-
leged in the complaint and recommended that such
allegations be dismissed . Thereafter, the General
Counsel and the Respondent filed exceptions to the
Trial Examiner's Decision together 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 ,' conclusions , and recommenda-
tions of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent , Sew-Magic, Inc.,
Greenville, South Carolina, its officers, agents, suc-
cessors, and assigns , shall take the action set forth
in the Trial Examiner 's Recommended Order.
' These findings and conclusions are based , in part , on credibility deter-
minations of the Trial Examiner , to which the Respondent has excepted.
Having carefully reviewed the record, we conclude that the Trial Ex-
aminer 's credibility findings are not contrary to the clear preponderance of
all the relevant evidence Accordingly , we find no basis for disturbing those
findings Standard Dry Wall Products , Inc, 91 NLRB 544, enfd . 188 F 2d
362 (CA 3).
' Member Jenkins would award backpay to Clara Butler , Irene Garrison,
and Inez Mahaffey from the time Respondent refused to reinstate the other
six unfair labor practices strikers who had been replaced , in accordance
with his dissent in Southwestern Pipe , Inc., 179 NLRB 364.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner : This proceed-
ing, brought under Section 10(b) of the National
184 NLRB No. 115
Labor Relations Act, as amended ( 61 Stat. 136),
herein called the Act , was heard at Greenville,
South Carolina , on December 9, 10, and 11, 1969.
The complaint , dated October 28, 1969 , and based
on charges filed and served on September 11 and
on October 16, 1969 , was issued by the Regional
Director for Region 11 (Winston -Salem, North
Carolina), on behalf of the General Counsel of the
National Labor Relations Board ( herein called the
General Counsel and the Board). The complaint al-
leged that Respondent had engaged in and was en-
gaging in unfair labor practices by discharging cer-
tain named employees on July 15 and 16, 1969,
and by certain other specified conduct in violation
of Section 8(a)(1) and ( 3) of the Act.
In its duly filed answer , Respondent denied the
commission of any unfair labor practices.
Upon the entire record and from my observation
of the witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material Respondent has been a
South Carolina corporation with a plant at Green-
ville, South Carolina , where it is engaged in the
manufacture of ladies' garments. During the 12
months preceding issuance of the complaint, which
is a representative period of time, Respondent
manufactured, sold, and shipped from its plant in
Greenville , South Carolina , goods valued in excess
of $50,000 to points directly outside the State of
South Carolina. During the same period of time
Respondent also purchased from points directly
outside the State of South Carolina goods valued in
excess of $50,000. At all times material Respon-
dent has been an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION
At all times material International Ladies' Gar-
ment Workers' Union, AFL-CIO , has been a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
In the spring of 1969' the Union was engaged in
an organizing campaign at Respondent 's Greenville,
South Carolina, plant. Among the employees who
were active in supporting the Union were Louise
Aiken and Modelle Moore . The major issues in the
case are whether ( 1) the discharge of Aiken on July
15 was discriminatory within the meaning of Sec-
tion 8(a)(3) of the Act; ( 2) a written warning
received by Moore on July 11 about her work vio-
' All dates are in 1969 unless otherwise noted.
SEW-MAGIC, INC.
lated Section 8(a)(1) of the Act ; and (3) a group of
nine union adherents were discharged and/or
refused reinstatement on July 16 in violation of
Section 8(a)(3) of the Act.
B. Moore's Warning
Modelle Moore worked for Respondent from Oc-
tober 1968 to July 16, 1969, the last few months as
a stockgirl . As such she picked up finished gar-
ments from the pressers , marked them down on her
card by the dozens, carried them to her table where
she sorted them by lot, style , size, and color, tied
them in bundles of six, and boxed them ready for
shipment . The performance of this job required no
judgment , discretion , or decisionmaking since the
lot, style , and size of the garments were shown by
little tags attached to them . The only requirement
for the job was the ability to read and to count.
About mid -June Moore began attending weekly
union meetings , signed a union card , and became
active in promoting the Union among the em-
ployees . To this end both in the plant and in the
parking area she talked to about 35 employees ask-
ing them to sign cards and to attend union
meetings . Some signed, some refused . According to
Moore's undenied and credited testimony, on one
occasion in late June she was observed by Plant
Manager Ed Slusser and Sewing Supervisor Mary
McDonald talking to Union Organizer Bob Dehill
in the parking area,2 where Dehill on more than
one occasion had handbilled the plant . On July 11
Moore along with Hattie Garrison and several other
employees wore union smocks at work .3 According
to Moore's undenied and credited testimony, on
this occasion she heard Supervisor Orene Car-
penter ask Garrison , "Hattie, did you and Modelle
go to the same welfare department to get your
jackets?" Believing that Carpenter meant for her to
hear the remark to Garrison too, Moore told Car-
penter "If she would ask ... about it during lunch
hour, break time or after working hours , that (they)
would tell her about it. ..." Carpenter replied,
O.K."
As indicated , on July 11 Moore received a writ-
ten warning as follows, admittedly the first and only
written warning ever given to an employee by
Respondent:
This is an official warning about your job per-
formance.
You were given verbal warnings on at least
four time [sic ] previously by the supervision of
this company , and your performance has not
improved satisfactory [sic].
' Moore testified that while she and Dehill were talking she saw Slusser
and McDonald looking in her direction . Neither Slusser nor McDonald de-
nied seeing Moore and Dehill talking together.
3 The smocks were about fingertip length made of material having small
round ILGWU insignia interspersed in the pattern
" McDonald and Slusser, testifying at the call of Respondent, both con-
925
You were given a warning on July 7 by me,
about your count being wrong and work mixed
by sizes and styles.
Your count of last evening (7/10/69) was
mixed by sizes in packs, amount in bundle, and
wrong sizes in boxes.
This is your last warning . Any further unex-
cusable [ sic] errors will result in your im-
mediate discharge.
Ed Slusser
Pit. Mgr.
According to Moore's testimony Carpenter was
present in Slusser ' s office on the occasion that
he gave Moore the written warning . At this time
Slusser told Moore that it was her last warning; that
she had been given warnings before . Moore asked
by whom and he said by himself and others . He said
that Carpenter had warned her. At this point
Moore said , "Orene, you 've never warned me
about bad work .' Please don 't say it because you'll
be telling a lie." According to Moore Carpenter
started to say, "Well . . . " and did not finish.'
Moore further testified on direct that not only
had she had no oral warnings about her work but
that on more than one occasion Carpenter had-
complimented her on her work .6 She also testified
on direct credibly and without denial that her su-
pervisor , Jim Howard , when she was in the cutting
department had told her that he wished he could
keep her in the cutting department but that they
just did not need three girls there. On cross-ex-
amination she testified that she had asked Slusser
for a raise and frankly admitted that his reply was
that "he was going to give ( her) a raise out of the
window or out of the door." She did not take this
remark to be a compliment.
Moore also admitted on cross-examination that
Slusser may have complained once or twice that
something was not right-that when he was helping
to ship out once or twice he may have looked over
and said , "This goes here " and that would be the
end of it . According to Moore there was "nothing
unusual about that ." While admitting that Slusser
may have once or twice held up a bundle for her to
see and say that it belonged some place else she de-
nied that Carpenter ever did that. In a sworn state-
ment however she had said that "from time to time
Slusser and Carpenter would walk through and hold
up a bundle and say it belonged elsewhere, and
then go through ." In any event , according to her
further testimony , she never knew if any of the
mistakes called to her attention were the result of
firmed Moore's testimony that she had protested to Carpenter that the
latter had never warned her about her work
" Carpenter testified that she told Moore , " Now, Modelle , you know that
you have been warned repeatedly about your job and about the way it is
being performed."
In her testimony Carpenter denied this.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her work or not since she had several different peo-
ple helping her,' on some occasions two at the same
time.
Besides McDonald , Slusser , and Carpenter testi-
fying on behalf of Respondent about the Moore
matter, Respondent also called as witnesses to testi-
fy employees Betty Greene and Pat Falacara, the
latter being the shipping and receiving manager of
the Ashville Manufacturing Company of Ashville,
North Carolina .8 Respondent also called one Lew
Skop, a consultant to both Ashville Manufacturing
Company and Sew-Magic, who had been hired as
such by Howard Ginsberg of Paragon Uniform
Company.
From Respondent 's testimony it would appear
that beginning in Marche and continuing through
April. May, June, and early July, Respondent was
experiencing an inordinate number of mistakes of
the nature described in the July 11 written warning
to Moore . According to Falacara 's testimony, in the
early spring when he got information from the
receving clerk at Ashville Manufacturing Company
that the finished goods were coming in " messed
up" he directed him as follows:
I told him that when the finished goods were
received the next day not to open the cases,
that I would want to receive it with him
together , and I did just that . When the
truckline brought the merchandise in the next
day, we open the case together and I per-
sonally inspected the bundles.
When I saw what was happening, I called Ed
Slusser at Sew-Magic and I stated to him what I
had found , and asked him if he could do
anything about it because it was proving quite
a headache to us.
The matter was so serious that Skop also began
hearing about the problem from the New York of-
fice as early as March and was asked to see what
could be done about it . On one of his visits to the
Ashville plant when he asked Falacara why
merchandise was stacked up in the aisle rather than
in the bins , Falacara told him that he had not had
time to check it in ; that lately he could not "accept
a shipment without going through every package of
the quantity or size in the bundles ." Falacara
pleaded with Skop to "please do something about
the errors ... in the shipment from Sew-Magic."
Skop discussed it with Plant Manager Slusser telling
Slusser that he had to do something about the
problem . Other than this, what Skop or anyone else
in management did about this matter from March
until June , except for some claimed verbal warnings
to Moore from Slusser and Carpenter , does not ap-
pear.
In June James C. Brendel was hired by Howard
Ginsberg on Skop 's recommendation as general
manager of both the Ashville Manufacturing Com-
pany and Sew -Magic plants . One of Brendel's pri-
mary assignments in his new job was to straighten
out Respondent 's shipping department . Skop told
Brendel to discuss the matter with Slusser and take
care of the problem . He also asked Brendel if he
knew someone "to recommend as assistant shipping
manager ." Brendel mentioned a few names but
nothing ever materialized.
Brendel and Slusser assured Skop that they
would correct the problem . This apparently was
during a visit by Skop and Brendel to the Greenville
plant shortly after Brendel was hired . This they did,
according to Skop , in July when the plant took in-
ventory . When asked on cross-examination what
they did to correct it he testified , "I believe they ...
replaced the person ." 10 When asked why it took
Respondent from March to July to do something
about the matter Skop testified:
Well, I cannot tell you why ... but actually
usually any person that does a job is instructed
and asked-given a chance, if possible , and, of
course , if it gets to the point it is impossible to,
this person finally you get just fed up, and
sometimes you don 't have somebody to replace
immediately, and it takes time to train a new
person in a job.
On several more attempts the General counsel was
no more successful in getting Skop to specify any
reason why it would take 4 months to come up with
a recomendation to correct the problem . Nor was
the General Counsel any more successful in getting
a definite answer out of Skop as to how long it
would take to train somebody to do the work in
question . Inferring that the job was complex, Skop
testified that it could take 3 months, 6 months, or
more to train a person for it . Notwithstanding this
testimony Skop then finally admitted that the work
in question was "a relatively minor job" and called
for the minimum legal wage.
According to McDonald 's testimony she took in-
ventory during the July 4 vacation period and
found numerous mistakes in the finished work of
Moore . On the Monday morning following the
7 Slusser in his testimony on cross-examination named four employees
(Harriet Kaye , Doris Haynes, Marvalee Ashworth, and Hattie Garrison)
who had from time to time helped Moore in her work According to
Slusser it would be a fair statement to say that one of these women
helped Moore on the average a couple of times a week
",Ashville Manufacturing Company presumably is owned by the same in-
terests that own Sew-Magic-apparently Paragon Uniform Company of
which one Howard Ginsberg is president Ashville Manufacturing Com-
pany stocks and apparently acts as the sales agent for the finished product
of Sew-Magic
Presumably about the time Moore began working as stockgirl
1p On redirect examination when he was asked by Respondent 's counsel
if he had any actual knowledge as to what happened to the employee who
was performing the poor work in the shipping department he answered, "I
was never interested." Obviously nettled , Respondent 's counsel said,
"Answer my question " and restated the question at which time Skop an-
swered that he understood that Moore got a warning
SEW-MAGIC, INC. 927
completion of the inventory she and Slusser were
standing adjacent to where Moore was working.
McDonald said , "Ed, you remember during vaca-
tion , I had an awful lot of mixed up work here."
We've got to do something about this ... I found
sizes mixed , I found piles mixed , lots mixed, and it
was terrible ." Slusser said , " I know . You told me."
He then addressed himself to Moore , "Modelle, I
have told you and told you about this work being
mixed up here . Now it has to straighten up and get
better ." According to McDonald , Moore said,
"Well, Ed , I do the best I can."
According to Slusser 's testimony , having been
apprised by McDonald of mistakes she found dur-
ing inventory , he went to see Moore early Monday
morning to tell Moore about the mistakes they
found and happened to run into McDonald who
was standing where Moore was working. About
what he told Moore at this time he testifies as fol-
lows:
Well, I told Modelle that it was about the
mixed-up in stocks that we had had ready to
ship out that we took on inventory and we told
her that she had been warned repeatedly be-
fore by Orene . I warned her myself" I said,
"Now I am giving you another warning. I want
you to know and understand the seriousness of
this warning and of the mixup in the different
styles and sizes; that I have got complaints be-
fore from Pat Falacara out of Ashville."
Slusser also told Moore at this time that because
"she was the one that was in charge of this ... it
was up to her to make sure that she has her work
right , that all she has to do is just look at the tags
and count."
According to Slusser 's further testimony,
between the visit by Brendel and Skop to Sew-
Magic in June and Brendel 's next visit which was
on July 16, they had more than one telephone con-
versation about the shipping problem at Greenville.
One particular one was on Tuesday after July 4.
about this Slusser testified that Brendel was com-
plaining about the mixup in sizes, styles , et cetera,
they had found when they took inventory at Ash-
ville. Slusser said that they had found the same thing
in Greenville . Brendel said that they had to do
something about it . Slusser replied that he had al-
ready done something-that he had given the girl in
charge of this operation an oral warning the day be-
fore . Brendel then told Slusser that since he had
given her the warning he was to make sure that he
got "personally invovlved " to which Slusser replied
that he was personally involved now that he had
started to check every carton himself the day be-
fore.
As indicated , Slusser in his testimony had named
four employees who from time to time had helped
Moore in her work . After considerable equivoca-
tion Slusser finally admitted on cross-examination
that the mistakes attributed to Moore could have
been made by the employees who were helping her.
Regarding the circumstances of the written warn-
ing to Moore Slusser testified as follows:
Well, from the telephone conversation with
Mr. Brendel , and Pat Falacara , it was decided
that I was going to count every box that was
packed starting after vacation and so I was on
every box that was being packed after vaca-
tion , and Johnny Samuels helped too. Some-
times Johnny does it himself13 but this particu-
lar time, I started packing every box counting
the ones that went into the boxes , and then on
the 10th , when we were packing them, the
10th of July, which was Thursday , we found
mistakes that night as we were packing them,
getting them ready to be shipped out. And
through Orene, I told her to go get her , and she
went and got Modelle and brought her into the
office, and Mary was already in the office, and
she came in, and I told her to sit down in the
chair . And she elected to stand up , and I told
her that I was going to give her a warning, a
written warning because previously every time
I told her about mixups and everything, it
didn 't seem to get that much improved or that
much better . I had taken enough of it . The last
resort now was to "give you a written warn-
ing. 1/
On the foregoing evidence alone (and there is ad-
ditional evidence as will be seen ) I would have no
hesitancy in finding that Moore 's written warning
was, as alleged by the General Counsel in the
amended complaint, directed to her because of her
union activity and as such interfered with, re-
strained, and coerced her in the exercise of rights
guaranteed in Section 7 of the Act in violation of
Section 8 (a)(1) thereof.
The active part that Moore played on behalf of
the Union has been noted . That Respondent knew
or suspected that Moore was a union protagonist is
demonstrated by Slusser's and McDonald 's having
seen her talking to the union representative on the
parking lot and by her having worn a union smock
on July 11 with the resulting interrogation of Hattie
Garrison by McDonald about it. A few days
later, as a culmination of several months of sup-
posedly unsatisfactory performance ( which Moore
supposedly had been repeatedly warned about and
which supposedly was of such importance to
Respondent as to have had the New York office
" She had previously testified that during the inventory she had told
Slusser that she "was finding a lot of mistakes" in the work
12 As to how many times he warned Moore, Slusser testified that he could
not be specific but estimated that it was "at least three or four or five
times."
"Carpenter testified that Samuels had many jobs in the plant and that
one of them was to see that all work was properly packed by lot, size, and
so forth before it went out to Ashville If there were any mistakes in this
respect it was his job to catch these mistakes She also testified that Slusser
frequently helped Samuels in this work and that they both were responsible
for catching and correcting such errors.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request its consultant , Skop , to look into it as early
as March ) Respondent finally took action. And
what was the action ? Another warning to Moore!
Not a written warning but an oral one . A written
warning was yet to come.
Notwithstanding Skop 's initial attempt to imply
that the reason Respondent had taken no action for
some 4 months to correct the shipping problem was
because of the difficulty or length of time it would
take to be able to train a replacement for Moore, it
is clear ( as he later admitted ) that her job was not
an important job and that the only skills it required
(as testified by Slusser ) was to be able to read and
to count . Nor is this 4-month failure to correct the
problem by replacing Moore if her work was so un-
satisfactory any more adequately explained by
Respondent than a number of other questions that
the evidence raises . For example , how could
Respondent know that the mistakes found in the
shipments of Ashville were not made by the women
assigned to help Moore a couple of times a week?
And wouldn 't this be a natural assumption on the
part of Respondent particularly if, as Skop tried to
imply, the job was so complicated that it took 6
months to train a person to do it ? In any event why
didn't Respondent make any effort to find out if the
mistakes were attributable to Moore's helpers? And
why wasn 't Samuels, whose duty it was to check all
shipments to Ashville, also warned about his obvi-
ous failure to catch the errors that were getting
through to Ashville? Was this for the same reason
that Respondent made no attempt to ascertain
whether Moore 's helpers were making the errors?
And why, for the first time in its history, the written
warning?14 Furthermore , why, if the matter was im-
portant enough to have New York specifically
request Skop to do something about it would he be
so vague and uninformed as to the specifics of the
job in question and the person in it explaining that
with such matters he does not "get involved" and
does not "interfere ." Why would he not get in-
volved or interfere in a matter which New York
deemed important enough to ask him to correct?
Why was Slusser told to get "personally involved"
in the problem? As important as it was would
Slusser need any such admonition ? And what really
was meant by the term "personally involved"? And
lastly, why were the shipping errors coming from
Sew-Magic still pretty bad at the time of the hear-
ing, as testified by Falacara , when Skop claimed
they had been corrected at the tme of the July in-
ventory-on his first version by the replacement of
the employee at fault and on his second version by
the employee having been given a warning?
14 The short answer to this question is obvious and indeed Slusser ad-
mitted on cross-examination that the written warning to Moore was to be a
recorded manifestation of someting given her in case of future action on
the part of Respondent against her. In the larger sense , however, the
question remains unanswered . Why, after five warnings by Slusser and
three or four by Carpenter from early spring on, were any additional
warnings, oral or written , needed to justify action by Respondent on this
matter''
On the whole , the failure of Respondent's
evidence to supply satisfactory explanations for the
foregoing questions ( among others ) in my opinion
at the very least points to an attempt on the part of
Respondent to utilize a pretext upon which to set
up Moore for discharge . At the most it supports an
inference that not only did Respondent attempt to
utilize a pretext but that it attempted to build the
pretext upon which it intended to rely . In this con-
nection the additional evidence I have alluded to
becomes significant . This evidence was adduced in
substance as follows through Brendel who was
called as a witness by the General Counsel and who
at the time he testified was no longer an employee
of Respondent , having left under circumstances ap-
parently not particularly amicable.
When Brendel made his first visit to the Green-
ville plant with Skop, among other things the
Union 's organizing effort in the area was
discussed . 15 Slusser brought the subject up conced-
ing that Respondent would "have to deal with them
in the future" but maintaining that Respondent was
"not ready yet." In early J my Slusser called Brendel
at Ashville and told him that he knew "one in-
dividual in the plant that ... was the instigator of
the Union and the person that was trying to or-
ganize ." That person was Modelle Moore . Brendel
and Slusser discussed at this time what to do about
it but no course of action was agreed on then.
After this conversation with Slusser , Brendel
called Skop in Pennsylvania and the two discussed
ways and means to combat the union activities and
to eliminate Moore . The plan they decided on was
to have Slusser mix up some of Moore's finished
work and give her an oral warning . In the meantime
Shipping and Receiving Manager Falacara at Ash-
ville was to call Slusser and complain about the
mixup in the work from Greenville and then follow
up with a memo to Slusser which was to be the
basis of a written warning to Moore . According to
Brendel 's further testimony , a few days later Slusser
informed him that he had given Moore an oral
warning and a written warning which Brendel
claimed to have read later. In their testimony Skop,
Slusser, and Falacara are denied participating in
any conspiracy leading up to Moore's written warn-
ing.
Respondent attacks Brendel 's testimony for its
"obvious lack of credibility" as illustrated by con-
flicts in it regarding the sequence and timing of
various telephone conversations between him and
Slusser about the Moore warnings and because of
Brendel 's bias due to the " less than pleasant cir-
cumstances " of his leaving Respondent and
15 As early as May, according to Skop 's testimony , Slusser had informed
him that the Union was active at the Greenville plant-"that there were
leaflets being handed out ." In his testimony Skop denied that Slusser had
asked him what he should do to be able to handle the matter and testified in
this connection that Slusser told him that he had retained counsel . Later,
following Skop's penchant for inconsistent testimony , Skop testified that
when Slusser informed him about the union campaign he also "wanted to
know what to do about it."
SEW-MAGIC, INC. 929
because of the Union 's commitment to see that he
got employment if his participation in the hearing
resulted in his being blacklisted 11 For these reasons
Respondent contends that Brendel 's testimony
"should receive little or no weight in comparison to
the impeached , consistent , straightforward and
truthful testimony given by the Respondent's wit-
nesses. "
Conflicts in dates and the timing of specific
telephone conversations out of numerous such mat-
ters do not appear to me to be as important in
weighing credibility as conflicts in more substantive
matters . For instance, it seems to me much more
serious for a witness to give conflicting testimony as
to what was said on a particular subject as distin-
guished from when it was said . By this I do not
mean to say that any kind of conflict should be
disregarded in weighing credibility . But realizing
that human memory is not perfect ( any more than
is human rectitude ) one must choose and weigh to
see wherein lies the least fault . In my opinion,
Brendel 's testimony on the Moore matter is clearly
more worthy of credence than is Respondent's ver-
sion . 17 Not only were there conflicts of substance in
both Skop 's and Slusser 's testimony , it was also
marked by equivocation , evasiveness , and an obvi-
ous lack of candor . Indeed , Skop 's evasiveness was
so pervasive that , as shown , it demonstratively ir-
ritated Respondent 's counsel . Accordingly, I am
inclined to believe and find that , whether in exactly
the manner testified by Brendel or not , Respondent
not only decided to utilize a pretext to set Moore
up for discharge but actually took steps to fabricate
the pretext . 18 Accordingly , I find , as alleged, that
Moore's written warning was given to her for par-
ticipating in union activities and thus violated Sec-
tion 8 ( a)(1) of the Act.
C. Aiken's Discharge
Louise Aiken worked for Respondent as a sewing
machine operator from April 1968 until July 15,
1969, when she was discharged . She took part in
the union campaign , attending meetings and signing
a union card. She also attempted unsuccessfully to
get three other girls to sign cards in the plant and
some seven or eight in the parking lot. On Friday,
July 11, she was among the union adherents who,
like Modell Moore , wore union smocks at work.
According to her testimony had been compli-
mented by McDonald who had said " I know you
can do it . You are a good operator."
On Thursday and Friday , July 10 and 11, Aiken
was engaged in front sewing of lavender jackets,
her normal sewing operation , and one of the initial
sewing operations on a garment. She did not work
on Monday , July 14 , but did on July 15 working on
the lavender material until about 2 p.m. when she
was given other work to do . About 2:30 p .m., ac-
cording to Aiken 's testimony , Supervisor Mc-
Donald came to her with one of the lavender gar-
ments in her hand and told Aiken that it was
"shaded."18 She told McDonald that she did not
know it was shaded . McDonald asked her, "How
did you lay it down?" Aiken said , "Why didn't you
tell me that it was shaded ?" McDonald said that she
did not know it . McDonald then left and returned
to the cutting table with Plant Manager Slusser
where they laid out the bundles of work Aiken had
done. Thereupon Slusser called Aiken over to the
cutting table . About what occurred then Aiken
testified as follows:
... I went to the cutting table , and he told me,
Ed Slusser told me, he said, "This work is
shaded." And I told him that I did not know
that it was shaded . And he said, "You are
going to do it all over ." And I told Ed Slusser
that if I did it , that I would be willing to do my
part , I would do all of my mine over if he
would let the other two operators take their
work out ,20 that I would be willing to do my
work.
* * *
He told me no , that I was going to do it all. He
said , "You are going to do it all over." And I
said, "Well, I didn't know that it was shaded."
And he said, "I know, if you hadn't had so
much on your mind Friday'21 you would have
knowed what you was doing."
Aiken asked Slusser what he meant by the last re-
mark but he did not reply. She then asked him how
many dozen there were and he said there were 70
dozen . 22 She then asked him what he was going to
give her and he said , "I'm not going to give you
anything." At this point counsel asked Aiken if
Slusser meant that she was going to be expected to
do the work without receiving production pay-
ments23 and she answered, "Yes, I guess- that's the
16 Brendel so testified.
" As for Brendel 's claimed reasons for bias, Respondent 's witnesses of
course are not in the position of being completely neutral either
" Apart from all the other indicia in the record pointing to this conclu-
sion, it is also implicit it seems to me in the oral warning Moore received
just a couple of days prior to the written warning . Certainly, with the
number of oral warnings she already had been given , there was no need of
another one antecedent to the written warning
'y The term "shaded" refers to unintended slight variations in the
shades of the material in a garment generally due to the fact that the
material came from two different dye lots
f0 Two or three other operations had been completed on garments that
Aiken had done at this point
21 Aiken had worn a union smock at work on Friday
° To do them over herself would have taken Aiken about 3 days she esti-
mated
' Aiken worked on an incentive basis whereby she was averaging about
$16 a day or $3 20 a day over the minimum legal rate of $ 1 60 an hour
or $12 80 for an 8-hour day The practice in the plant was to pay operators
at the minimum legal hourly rate while engaged in the repair or correction
of their own faulty work.
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
way I took it. He said he wasn 't going to give me
anything. 1124
Aiken then went back to her machine and
resumed working on the material McDonald had
just given her but- McDonald came and took the
bundle away from her telling her that she was not
going to do it and went back to the office. A short
time later McDonald and Slusser came back to
Aiken's machine where Slusser (who had gone over
to, the cutting table and gotten two or three gar-
ments)25 threw them on the machines and told her
to "do it." Aiken told him she was not going to do
it unless he had the other two operators take their
work out and then she would be willing to do hers.
Slusser said no and told her, "Just get you card. "26
He then told her to come into the office. There he
told the secretary to give Aiken both her checks
and he went into his office. The secretary made out
the checks while Aiken stood there. She took them
and walked out. According to Aiken's further
testimony there were no shading tickets on the
material in question nor had anyone told her that
the material was shaded. She also testified that she
had done the assignment using the procedure she
was taught to use and had always used. About
Aiken's discharge McDonald testified as follows:
... One of the girls on the machine , which was
Violet Greene, called me and said "Mary, do
you know this work is shaded?" And I said, "I
sure didn't, Violet." She handed me the gar-
ment and showed it to me.... I took the gar-
ment , in fact, I looked at her bundle and I
noticed when I looked at it right off that it had
not been sewn like I had showed them to do it.
I took one garment from the bundle, and I
walked back, which would have been approxi-
mately three rows back to Louise Aiken's
machine, and I said , "Louise, do you know this
work is shaded?" And she looked up and she
says, "Did I do it?" And I said, "You did the
lot. Do you know it was shaded?" And she
said, "Did I do it?" And I said, "You did the
lot. Did you start this work with your markers
up like I have showed you to do?" And she
said , "Am I going to have to fix it?" And I said,
"Did you do it like I showed you to do it?"
And she said, "Am I going to have to fix it?" I
said, "Did you start with your markers up?"
And she paused a minute and she said, "No, I
didn 't." And I said , " Louise, how many times
have I told you to start your work with your
markers up?" And she said , "Am I going to
have to fix it?" And I said , "I don't know. I will
have to talk to Ed to see what we can do about
getting it shaded in the right order." And I
walked off.
Thereupon according to McDonald's further
testimony , she went to Slusser 's office and told him
about the shaded work and that when she had
asked Aiken about it the latter had admitted that
she had not started it "with her markers up. "27
Slusser told McDonald to lay some of the garments
out on the table and the two proceeded to examine
them . Aiken pointed out, "Now, Ed, you see right
here; she didn 't put her markers together because
hereup is a marker down here , and here is another
marker up here on another garment ." At this point
Slusser called Aiken over to the table and said,
"Well, Louise, Mary tells me that this whole lot of
work has been sewn and we find these that are
shaded," and he asked her why. Aiken said, "Well,
I made a mistake." Slusser said, "On the whole lot
of work?" "Here is your marker here and here is
your marker here. It is wrong." Aiken said, "Am I
going to have to fix them?" Slusser did not answer
but according to McDonald, kept on saying,
"Louise, this work is shaded and now what are we
going to do with it? It has got to be fixed; some
way, we have got to get it done. I don't know what
we will do with it." Aiken said, "Well, Ed, I am
sorry." At this point Slusser and McDonald again
looked at the material and Aiken said again , "Well,
Ed, I said I was sorry." Slusser retorted, "You may
be sorry, but being sorry is not going to fix this
work." At this point the buzzer rang and Slusser
said, "Let's go ahead and take a break" and walked
off.
After the break when McDonald and Slusser had
gone to the office , McDonald came back to the
floor and Aiken was working on the next garments
that had been given her. About what she told
Aiken at this point McDonald testified as follows:
"Louise, don't work on any more until we de-
cide on what we are going to do with this
work." And she continued to sew. And I said,
"Louise, let's just quit right where we are and
don't work any more until we get this work set-
tled, what we are going to do." And by this
time, Ed had walked out, up to the side of me
by her machine, and he had two garments in
"Jessie Durham corroborated Aiken's testimony that Slusser told
Aiken that it was 70 dozen she had shaded and that she was going to
do them all over and further that if she had not had so much on her
mind that Friday she would have known what she was doing But she
recalled no comment about payment in the conversation Clara Butler
also testified on direct that she heard Slusser tell Aiken at the cutting
table that she was going to do all the shaded work over "on her own time "
On dross-examination Butler denied that Aiken told Slusser she would
do the whole operation over if they would give here time for it When
confronted with her affidavit which said "Louise said she would do the
whole operation if they would give her time work." She admitted that
Aiken had said that
"There is a conflict between Respondent 's and the General Counsel's
witnesses on whether Slusser had two or three garments I find it to have
been two
26 According to Clara Butler's testimony when Slusser threw the
garments on Aiken's machine and told her to do it and she refused
unless he had the other girls pick out their work , he told her no, she was
going to do it all. Thereupon they argued about it, according to Butler, but
what they said she could not recall because she went back to her own sew-
ing
n The significance of the term "markers up" will appear
SEW-MAGIC, INC. 931
his hand , two shaded garments that would
reverse.
He said , "Louise, I have got two garments
here . If we can salvage them without the nee-
dle hole showing, we will try it." He said,
"Would you take these two garments and take
them apart and let's see if we can salvage
them ." And she says, "I am not going to fix
them ." And he said , "Louise, I am asking you
to do two garments , to check and see if the lot
can be salvaged ." And she says , "Am I going
to have to take it all out?" And he says, "I
have got only two garments ." And she just sat
there . And he said , "Louise, I'm asking you,
will you do these two garments for me?" And
she said , "No, I won 't." And he said , "well,
Louise , I have asked you many times to do
things for me . Why are you not doing it now?"
And she said , "well, I am just not going to do
it. II
As to what finally transpired McDonald testified
as follows:
Well, she just continued to refuse . She sat
there, and I think finally she moved and raised
up from her machine and just stood there; by
this time , the girls all around were stopping
their machines , observing what was going on,
and I said , to Ed : "How long is this going on?"
And he said , "Louise , will you please fix these
two garments so I can see if they can be
fixed?" And she just stood there, and he said,
"Louise, either fix the garments or pick up
your time ." And she said, "Just give me my
time."
About what happened when Slusser went to look
at the work McDonald had spread out for him he
testified as follows:
And one was sewn on one end and the other
was sewn on the other end, and of course,
Mary was with me then , and I said , "Mary, I
think"-she said , "she has turned them upside
down "; and I said , " Yes, I can see it , the marks
are upside down and the shades are bad. I
don't know what we are going to do about it."
So I called Louise over , and she was coming
over , I don't remember ; she said something
about on the way coming over, but I don't re-
member what it was. She come over and I said,
"You see these, Louise, how it is faded . Here is
the marks , and one here , and one here." And
in the conversation that was going on, she said,
"She was,-different things, I don't recall all of
them ; one thing she said at this particular time,
she said that she was sorry ; she said it a couple
" In his testimony Slusser denied that he told Aiken she was going to
Lave to resew the entire 70 dozen garments
of times . And I said, "Sorry doesn't fix the
damage . You may be sorry but sorry doesn't
fix them. "28
The conversation ended when the break buzzer
rang and he told Aiken to take a break . About what
took place after the break Slusser testified as fol-
lows:
Well, after break , I went back out to the
cutting table and I was looking at the garments
and I decided to take two of the garments that
was all up at the panel set-in , that was up as far
as the third operation on some garments; and
so I took the ones that was the third operation,
and took two garments over to Louise and
asked her to fix these two garments to see if we
could salvage the rest of the garments that
were already sewed on; and she said, "no."
And I said to her, "Well, I am asking you to
fix these two garments for me . And she said
something about "You get the other girls to
take their work out, and I 'll fix mine." And I
said , "That's not what I'm asking you, Louise."
I said , " I am asking you to fix these two gar-
ments so that we can see if we can salvage
these because when you sew it together with
different operations that was on this and taking
it out , you have a needle, where the needle has
been, you can get needle holes , and things of
this nature, and you have to have the top
stitching on one side , you have to come right
back down in the same needle holes as much
as possible so you don't make seconds out of
the garment , and this is why I asked her to fix
these two garments , and she said that she
would not , and so the conversation was going
back and forth between she and I ; and she was
saying "No," and I am asking her to do it, and
she is saying to get the other girls to take out
their work, and she will do hers. And -I am say-
ing "I am not asking you to ( do) it all; all I'm
asking you is to fix two garments ." By this time
I think she had pushed back in her chair like
that and sat up something like this (with folded
arms).
According to Slusser 's further testimony in addi-
tion to folding her arms at one point Aiken stood
up. As the conversation continued McDonald "said
something to the effect of how long is this going
on." Slusser's testimony then continued:
I said , " It is not going to go on very long." And
so I said , "Louise, I am asking you now to fix
these two garments to see if we can salvage
these garments that are sewn on, salvage the
lot." And she said , "No." And so, I said, "I will
tell you , Louise, you are either going to repair
these two garments or you are going to pick up
your time ; now you can take your choice as to
what you are going to do." And she said "I will
pick up my time ." And so I said , well, by this
427-835 0 - 74 - 60
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, she was standing up, and so I said,
"Come along we will go to the office and get it."
And so before I turned completely around to
go, to go to the office, I turned around, and
there was a girl sitting two machines over this
way, Mrs. Saxon and I said , "Ruth , would you
fix these two garments for me so that I can see
if we can salvage this lot?" And she reached
out and took them and said , "Yes."
And so I gave them to her and I turned around
and I said , "come on , Louise ," and I started to
the office . I got down close to where the ramp
was, I think somewhere in that vicinity, and I
told Mary to go back and get her timecard and
punch it , and bring it up to the office , bring it
along up to the office ; and as I was going down
the ramp , through the cafeteria , I said to
Louise, "Louise , do you know what you are
doing?" I said , "Other times when we have had
mistakes made, and you were asked to help fix
the mistakes , you did it and no questions
asked ; you were always too glad to do it, glad
to help ." I said , " today, I don't know what is
wrong with you."
* * *
You have done these things before, no
questions asked and now this attitude ; I can't
understand what is wrong; and she is there, and
she said, "I know what I am doing. I un-
derstand."
On cross-examination Aiken testified that when
Slusser bought her the garments and told her to "do
it" he did not tell her that he wanted her to take the
stitching out in order to see if the garments could
be salvaged . She admitted , however, that she told
him she would not do the garments unless he got
the other two operators to first take out their work
on them .29 According to Aiken when she told him
"that if he let those other two operators take their
work out, that ( she) would be willing to do (hers)"
he said , "Well, I'll get your card ." She denied
telling him to go ahead and do it . She also denied
the remarks Slusser claimed to have directed to her
on the way to the office.
In further cross-examination Aiken testified that
the markers on the top plys of material she is given
to sew indicate what the proper side of the material
is. Nonetheless she also testified that her practice
(which she followed with the lavender material)
was to start sewing with the marker up on one bun-
dle and down on the other ( which , she claimed, was
' She admitted that to do the work Slusser asked her to do would have
taken her only a few minutes
00 In reaching this conclusion I am mindful of Slusser 's earlier remark to
Aiken at the cutting table that if Aiken had not had so much on her mind
the way she was trained ) and admitted that this way
she can sew the garments faster . She also admitted
by so doing it defeats the purpose of the markers.
Conclusions re Aiken 's Discharge
It is clear that the individual operators have no
responsibility for detecting shading in the materials
upon which they work and that the only way they
know material is shaded is when it is ticketed as
such or when they orally are so informed . Admit-
tedly on the material in question there were no
shading tickets . However , it is clear from Mc-
Donald 's credited testimony that the shading tickets
had no significance for operations such as the one
Aiken was performing . They would be significant
only to operators putting on trim . Aiken's only
responsibility regarding shading was to start her
sewing with the markers up on each bundle and sew
in the same sequence as the material was stacked
thus matching the same ply of material to the same
ply.
When Aiken refused to do the two garments
(which she admitted would only take her a few
minutes) unless the other girls first took out their
work , I do not believe that she was under the im-
pression that she was being asked at this point to do
the whole 70 dozen nor that the condition she im-
posed related to the 70 dozen . Nor do I believe that
at any time was she under the impression that she
was going to be paid at least the minimum hourly
rate for redoing the entire lot if she did them. Even
in the absence of any connection on her part with
faulty work she might be asked to repair (in the na-
ture of the two garments Slusser was asking Aiken
to do ) an employee 's refusal to do it ( particularly in
full view of her fellow employees) certainly would
put her superior in an untenable position. In the
case of Aiken, considering that Slusser and Mc-
Donald must have been angry at Aiken for what
they righteously considered to be a careless (or per-
haps deliberate) mistake on her part, her refusal to
aid in its correction makes an untenable situation
even more so . I do not see what else Slusser could
have done in this situation but what he did do. Nor,
as spontaneous as it was, am I able to conclude that
Slusser's reaction to Aiken 's conduct would have
been any different had she not been connected with
the Union . 30 Accordingly , notwithstanding that
there is enough evidence to raise a suspicion to the
contrary , I find that Aiken's discharge was not dis-
criminatory within the meaning of the Act.
D. The Committee Meetings with Respondent's
Officials
On the night of July 15, at a union meeting it was
decided to have the organizing committee of em-
Friday she would have known what she was doing Obviously meant to be
disparaging the remark, besides being somewhat enigmatic , could have
been intended as nothing more Cf. J P Stevens & Co , Inc , 181 NLRB
666.
SEW-MAGIC, INC. 933
ployees call on Slusser the next morning to discuss
Moore's warning letter and Aiken's discharge. Ac-
cordingly, shortly before 7:30 on July 16, having
clocked in, the committee 10 strong (including the
discharged Aiken)31 and wearing union smocks
went into Slusser's office. About what took place
there Mahaffey, who had acted as spokesman for
the group, testified on direct as follows:32
I introduced the group as being the committee
for the ILGWU and I told Mr. Slusser that we
was in there to settle two grievances, one,
Modelle's warning and Louise Aiken's dismis-
sal.... Mr. Slusser told me that he didn't know
anything about a union , and if we wanted to
organize , to organize on our own time. I asked
him why was Louise fired, and he said because
she had shaded some work.... I told him that
she had no way of knowing the work was
shaded, and he said that she should have
-known. . I asked Mr. Slusser did Louise
Aiken's discharge have anything to do with her
being a member of the Union, and he said he
didn't know anything about a union .... I told
him that Louise had worked there for 15
months, that she had done perfectly good work
and we felt that she had been unjustly
discharged.... He said that if that was the way
we felt about it, we could go home and get off
the premises.
So the employees left.
Slusser's testimony about this matter, substan-
tially corroborated by McDonald was as follows:
And I said to them right away that "We don't'
recognize any group in this factory as a bar-
gaining agent for any of the girls within the fac-
tory, and that I would not talk to anybody as a
group." And I said to them, "If you have any
complaints, grievances that you want to take
up with me, I am here all day. You can take
them up with me all day long, and my door is
always open," and I pointed to the door like
that. I am on the floor all the time or else you
can take it up with Mary McDonald, Orene
Carpenter, or Elaine Rainey. Then she said,
"Well, they are here now to discuss these two
grievances." And I said that I wouldn't discuss
them with them at this particular time.
here. Go out to your machines and start to
work, and if any of you have a complaint to
make, you can come to me any time during the
day and we will talk about it; and in going back
and forth, I don't remember everything that
was said , each sentence and everything that
was going on. I said another time to go back to
work and Jessie said that they couldn't go back
to work until they settled their two grievances,
and I said , "Well, if that's the way it is," I said,
"You can either go back to work now or leave
the premises ." . . This was after 7:30. You
see, they came in around 7:30 when the buzzer
rang ; and when the buzzer rang; that's work
time, and they were in there during work time.
And so as they were starting to go out the
door, or out of the door of the office, I said
something about, "I have a factory here to run
and a job here to do." And Jessie, I think, said,
"Yes, and we help you run it." And I said,
"Well, you could go help me run it." And she
said they wouldn't do it until they settled their
grievances . And so I said, "You are going to
have to go home or leave the premises if you
are not going to do it," and they walked out
the door.
On cross-examination most of the General Coun-
sel's witnesses denied that they were told or asked
by Slusser to go back to work and also denied or
could not recall Durham' s telling Slusser that they
would not go back to work until the grievances
were settled. Gloria Davis, on cross-examination, at
first testified that she could not recall Durham say-
ing that unless the grievances were taken care of
they would not go to work . Davis was then asked,
"Well, tell me what was said then and by whom
right before Mr. Slusser said, `Well, if that's the way
you feel about it you can leave the premises ..."'
to which she answered, " Well ... Jessie was want-
ing to talk, kept trying to talk to him about it. We
told him we wanted to talk about it before we went
to work, and he wouldn't talk, so that 's when he
said we could leave." Counsel at this point repeated
the same inquiry to Davis as follows:
Q. ... After Jessie said , "We want to talk
about it before we are going to work," was that
at the time Mr. Slusser said, "Well, if that's the
way you feel about it, you must leave the
premises?"
*
And I said, "Well, (Aiken) was fired because
of the fact that she sewed some garments
wrong, and I asked her to fix two garments,
and she wouldn't do it. That's why she was
fired." And I said, "We have a factory to run
A. Right after that, yes.
Q. At that time Mr. Slusser did not say you
were fired , did he?
A. No, he didn't say we were fired, but he
told us to get off the premises.
Q. Is that the same statement you and I are
referring to "Get off the premises ," that you
31 Besides Aiken there were Modelle Moore, Jessie Durham, Clara " She was substantially corroborated by several other witnesses called by
Butler , Irene Garrison, Lula Lang, Hattie Garrison, Inez Mahaffey, the General Counsel.
Gloria Davis, and Nancy Hostetler
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified he made when he said , "If that's the
way you feel about it , you can get off the
premises?"
A. Yes.
While I do not believe that Slusser explicitly and
repeatedly pleaded with the employees to go back
to work as both he and McDonald claimed they did
neither do I believe that he gratuitously ordered
them off the premises . What occurred , I think, is
that when ( as testified by Davis) they told Slusser
they wanted to talk about the grievances before
they went to work and made this purpose clear by
their insistence he replied ( as testified by Mahaf-
fey) that if that was the way they felt about it they
could leave . 33 There is no indication in the evidence
that they were prevented from going to work or
that they would not have been permitted to go to
work. It may be that the employees misinterpreted
Slusser 's comment and thought they were being
discharged . But if such was the case the employee's
mistake can hardly be attributed to Respondent nor
can it put Respondent 's in violation of the Act.
Whether the employees realized it or not when they
left the premises , I am convinced and find, they
were engaging in a strike. The strike , however,
being caused in part by Respondent 's illegal warn-
ing letter to Moore was an unfair labor practice
strike.
When the committee members left the plant they
met with the union organizer and after discussing
the matter with him it was decided to go back to
see Slusser-this time to find out what their status
was with respect to their own jobs . This meeting
took place just before noon. In addition to Slusser,
General Manager Brendel was present having been
called to Greenville by Slusser as a result of the
earlier meeting with the committee . According to
Clara Butler's testimony (corroborated in general by
several other of the General Counsel 's witnesses)
Durham again addressed the company officials as a
representative of the Union and told them that they
were there to see about their jobs- Slusser said,
"Well, as I said this morning , I am not going to
discuss it with you." But he added that the general
manager was there and that he would leave it up to
the general manager . At this point Brendel spoke
up, "Well you girls walked off your jobs this morn-
ing." Durham said , "No, tell him Ed ." She said,
"We didn 't walk off our jobs this morning , you told
us to go home." Slusser said, "I didn't tell you all to
go home . I told you all to get off the premises." Ac-
cording to Butler 's further testimony after some
further comment in which Aiken 's discharge came
up Brendel told the committee , "All of you have
been replaced ." Durham said , "Are we fired?" but
received no answer . Durham then asked if she
came back in the morning would she have a
"That their leaving was contingent on some choice of their own is im-
plicit in the words " If you feel that way ......
"Thayer, Inc of Virginia, 125 NLRB 222
machine and was told no . She then asked if she
would have a machine the next week and was told
no. She then said, "Well , then we are fired?"
Brendel replied , "Just consider yourselves as laid
off." He then added , "As far as I'm concerned, it's
over with."
All the rest of the General Counsel's witnesses
except one testified that the employees were told
they had all been replaced . The one who did not so
testify was Brendel who testified that he had been
active that morning in recruiting and hiring replace-
ments for the missing committee members . He also
testified , in corroboration of Slusser 's testimony,
that Slusser read off the names of those who had
been replaced and told those who had not been
replaced that they could go back to work. There
was no response to the opportunity to go back to
work and the committee left.
Despite the fact that several of the General
Counsel 's witnesses testified to the contrary, I find
in accordance with Brendel 's testimony that the
employees were told who had been replaced and
who had not and that the latter were given the op-
portunity to go back to work but failed to take ad-
vantage of the offer . Those who were replaced, and
thus refused reinstatement ( to which as unfair labor
practice strikers they were entitled ) 34 were Dur-
ham, Moore, Lula Lang , Hattie Garrison , Davis,
and Hostetler . The remaining three ( Butler, Irene
Garrison , and Mahaffey ) having chosen to reject
the opportunity to go back to work took on the
status of strikers again-this time because of
Respondent 's refusal to reinstate their replaced fel-
low strikers-an unfair labor practice on the part of
Respondent35 and thus for a second time became
unfair labor practice strikers.
E. Independent 8(a)(1)
Nancy Hostetler, called by the General Counsel,
testified on direct that in late June she had a con-
versation in the sewing room with McDonald about
the Union. In the conversation McDonald asked her
if she had heard any of the girls talking about the
Union or if she had seen any girls sign a union card.
Hostetler said that she had not . McDonald then
asked Hostetler would she tell her if she saw any-
one sign a union card or talk about the Union.
Hostetler did not reply to McDonald this time.
On cross-examination it was brought out that
Hostetler and McDonald had had more than one
conversation about the Union prior to this time. At
first Hostetler testified that McDonald started the
conversations but later testified that she did not re-
member who started them. On further cross-ex-
amination she admitted that in one of these prior
conversations she had told McDonald that her
mother worked in another plant and was for the
"The failure or refusal to reinstate unfair labor practice strikers upon
their unconditional offer to return to work is discriminatory within the
meaning of Sec 8(a)( 3) of the Act. Thayer, Inc of Virginia, supra
SEW-MAGIC, INC.
Union but denied saying that her mother had given
her any advice as to what to do about the Union.
When asked if she had told any of the girls about
McDonald asking her to let her know what was
going on about the Union , Hostetler said that she
did not repeat it to any of the girls but did tell it to
Supervisor Elaine Rainey about which she testified
as follows:
Well, when we, me and Mary , got through talk-
ing and I got through what I was doing, I went
out front and told Elaine. I said, "Elaine, Mary
asked me if I would tell her if I had seen any of
the girls sign a union card , or if I have talked to
any of the girls ." And she said, "Well, what did
you tell her?" And I said, "I didn't tell her
anything." And she said, "Well, would you tell
her?" And I said , "No." And she said , "Well,
would you tell me?" And I said, "I might."
McDonald testified that she had two discussions
with Hostetler about the Union . One of them was
on July 15. It took place when McDonald was
standing at the cutting table . Hostetler walked up
and began watching what she was doing. According
to McDonald , Hostetler said , " Boy, Louise got
upset a while ago didn 't she?" McDonald replied
that she could not understand Louise-that she had
never been like that before. Hostetler said, "You
know why she did this, don't you?" McDonald said
she did not know and Hostetler said, "Well, the
Union has told these girls if anything happened to
them up here, that they would lose their jobs, that
they would see that they get a job in another
plant." McDonald replied, "Really?"
The other conversation with Hostetler occurred 3
or 4 weeks before that about which McDonald
testified as follows:
Well, we were working together. We were
matching up work, and Nancy says, "Boy, this
union is really working , aren 't they?" And I
said, "Well, I have heard they have been out
back handing out handbills and papers." And
she says, "There has been two or three men
back there." And I said, "Well, I had heard
they had been, but I don't go out the back."
And she said , "Well, my mother said if she
could see these men and know what they would
look like, she would know them." And I said,
"Where does your mother-no , first she said,
"These men have been to where my mother
works." And I said, "And where does your
mother work?" And she said, "She works in
Spartanburg at the Butte Knit plant, and she
said they had been over there. And I said,
"Nancy, from what I have observed of union
activity, I would want no part of it, but this is
individual own decision to make ." And she
says, "Well , my mother-" she didn 't say "my
mother," she said , "Well, my mama told me
not to get involved." And I said, "Well, now
this is your decision, but if I could advise you
or anyone else, I would say don 't get involved
935
because they do not offer the benefits that peo-
ple believe they offer.
McDonald denied asking Hostetler to give her the
names of employees who signed union cards or
talked in favor of the Union but did not deny asking
her if she saw anyone signing union cards or talking
about the Union.
Rainey in her testimony flatly denied Hostetler's
testimony and denied ever having had any long
conversations with Hostetler or any conversations
which would go beyond such things as "Good
morning . How are the children , the family."
I credit Hostetler in both the foregoing incidents.
It is quite clear from McDonald's own testimony
that she and Hostetler must have , as Hostetler
testified , " talked a good deal about the Union."
Such discussions can be and probably often are in-
stigated or sought out by employees interested in
currying a little favor with their superiors-who on
their part are willing to lend themselves to the
situation not being averse to doing a little prose-
lytising on behalf of the employer. The result can
be as I believe it to have been here . Believing
Hostetler to be against the Union, McDonald sur-
mised that it would be feasible to enlist her aid in
getting some valuable information . As for the
Rainey matter there was no mention of it in Hostet-
ler's direct testimony , it having come up spon-
taneuosly on cross-examination . This fact plus the
manner in which she described it pointed to its
authenticity at the time she testified and still
produces that reaction after having reviewed the
whole record . Here again one cannot avoid conject-
ing about the interplay of human foibles. It is not
inconceivable that Rainey might have been in-
terested in playing a little one upmanship with
respect to her's and McDonald's ability to get use-
ful information for the boss. On the foregoing
evidence I find that Respondent violated Section
8(a)(1) of the Act by both McDonald's and
Rainey's interrogation of Hostetler and further by
McDonald's attempt to induce Hostetler to report
on the union activity of her fellow employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the
Respondent's operations described in section I,
above, have a close, intimate, and substantial rela-
tionship 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.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices affecting
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce , I shall recommend that it cease and de-
sist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent failed and refused
to reinstate Jessie Durham, Modelle Moore, Lula
Lang, Hattie Garrison, Gloria Davis, and Nancy
Hostetler upon their request for reinstatement as
unfair labor practice strikers on July 16, 1969, thus
violating Section 8(a)(3) and ( 1) of the Act , I shall
recommend that Respondent offer them immediate
and unconditional reinstatement to their former or
substantially equivalent positions,36 without preju-
dice to their seniority and other rights and
privileges , dismissing if necessary any replacements
hired , and make them whole for any loss of pay
they may have suffered because of and since the
refusal to reinstate them on July 16. Having also
found that Clara Butler , Irene Garrison , and Inez
Mahaffey became unfair labor practice strikers on
July 16, 1969, I shall recommend that Respondent
offer them upon application immediate reinstate-
ment to their former or substantially equivalent
positions , without prejudice to their seniority and
other rights and privileges , dismissing if necessary
any replacements hired for them , and make them
whole for any loss of pay they may have suffered by
reason of any refusal on the part of Respondent to
reinstate them during the period from 5 days after
the date upon which they apply for reinstatement to
the date of the Company 's offer of reinstatement.
In view of the nature of the unfair labor practices
committed , the commission by Respondent of
similar and other unfair labor practices may be an-
ticipated . Therefore , I shall recommend that
Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of
the Act.
Upon the basis of the above findings of fact and
upon the entire record in the case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Sew-Magic , Inc., is and at all times material
herein has been engaged in commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
2. International Ladies ' Garment Workers'
Union, AFL-CIO, is and at all times material has
been a labor organization within the meaning of
Section 2(5) of the Act.
3. By refusing to reinstate Jessie Durham,
Modelle Moore , Lula Lang, Hattie Garrison , Gloria
Davis, and Nancy Hostetler on July 16, 1969,
Respondent engaged in discrimination to
discourage membership in a labor organization,
thereby engaged in unfair labor practices pro-
scribed by Section 8 (a)(3) of the Act.
4. By interfering with , restraining , and coercing
its employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondent has engaged in
unfair labor practices proscribed by Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
97) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law I recommend that Respon-
dent Sew-Magic , Inc., its officers , agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Illegally interrogating its employees about
their own or other fellow employees ' union activi-
ties.
(b) Attempting to induce employees to report
on their fellow employees ' union activities or
discussions.
(c) Threatening employees orally or in writing
with discharge or other economic sanctions as a
pretext or otherwise because of or in retaliation for
the employees ' union sympathies or activities.
(d) Discouraging membership in the above-
named Union or any other labor organization by
discriminatorily refusing to reinstate any of its em-
ployees or otherwise discriminating in regard to
their hire or tenure of employment or any term or
condition of employment.
(e) In any other manner interfering with,
restraining , or coercing employees in the exercise
of the right to self-organization , to form labor or-
ganizations , to join or assist the above -named or
any other labor organization , to bargain collectively
through representatives of their own choosing, and
to engage in any other concerted activities for the
purposes of collective bargaining or other mutual
aid of protection , or to refrain from any or all such
activities , except to the extent that such right may
be affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment , as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Offer Jessie Durham , Modelle Moore, Lula
Lang, Hattie Garrison , Gloria Davis, and Nancy
Hostetler immediate and full reinstatement to their
former or substantially equivalent positions,
without prejudice to their seniority and other rights
and privileges , dismissing if necessary any persons
hired as their replacements , and make them whole
for any loss of pay they may have suffered by
reason of Respondent 's refusal to reinstate them on
July 16, 1969, by payment to each of them a sum of
money equal to that which she normally would
have earned from the foregoing refusal to reinstate
them, less net earnings during said period , Crossett
Lumber Company, 8 NLRB 440, 497-498, with
" The Chase National Bank of the City of New York, San Juan , Puerto
Rico, Branch , 65 NLRB 827
SEW-MAGIC, INC. 937
backpay computed on a quarterly basis in the
manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289, 291 -294, including
interest as held in Isis Plumbing & Heating Com-
pany, 138 NLRB 716.
(b) In a like manner offer immediate and full
reinstatement to their former or substantially
equivalent positions to Clara Butler , Irene Garrison,
and Inez Mahaffey and make them whole for any
loss of pay they may have suffered by reason of
Respondent 's refusal if any to reinstate them by
payment to each of them a sum of money equal to
that which they would normally have earned as
wages during the period from 5 days after date of
their applications to the date of Respondent 's offer
of reinstatement to be computed as aforesaid.
(c) Post at its plant in Greenville, South
Carolina , copies of the attached notice marked
"Appendix . "37 Copies of said notice , on forms pro-
vided by the Regional Director for Region 11, after
being duly signed by Respondent 's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, in-
cluding 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 11,
in writing , within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.38
IT IS FURTHER RECOMMENDED that , unless Respon-
dent should within 20 days from the receipt of this
initial Decision notify said Regional Director in
writing that it will comply with the foregoing
recommendations , the National Labor Relations
Board issue an order requiring Respondent to take
the aforesaid action.
17 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes 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 Na-
tional 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 "
31 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . " Notify the Regional Director for
Region 11 , in writing , within 10 days from the date of this Order , what steps
Respondent has comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT illegally interrogate our em-
ployees about their own or their fellow em-
ployees' union activities.
WE WILL NOT induce or attempt to induce
employees to report on their fellow employees'
union activities , sympathies, or discussions.
WE WILL NOT threaten employees orally or
in writing with discharge or other economic
sanctions as a pretext or otherwise because of
or in retaliation for the employees ' union sym-
pathies or activities.
WE WILL NOT discourage membership in the
above -named or any other labor organization
by illegally refusing to reinstate any of our em-
ployees or otherwise by discriminating against
them in regard to their hire or tenure of em-
ployment.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of the right to self-organization, to
form labor organizations , to join or assist the
above -named or any other labor organization,
to bargain collectively through representatives
of their own choosing, and to engage in any
other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection , or to refrain from any or all such
activities, except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment, as authorized in Section
8(a)(3) of the Act.
WE WILL offer Jessie Durham, Modelle
Moore, Lula Lang, Hattie Garrison, Gloria
Davis, and Nancy Hostetler immediate and full
reinstatement to their former or equivalent
positions, without prejudice to their seniority
and other rights and privileges , dismissing if
necessary any persons hired as their replace-
ments, and we will make whole said employees
for any loss of pay they may have suffered by
our refusal to reinstate them on July 16, 1969.
938 DECISIONS OF NATIONAL
WE WILL also offer Clara Butler , Irene Gar-
rison , and Inez Mahaffey immediate and full
reinstatement to their former or equivalent
positions , without prejudice to their seniority
and other rights and privileges , dismissing if
necessary any persons hired as their replace-
ments, and we will make them whole for any
loss of pay they might have suffered by our
refusal to duly reinstate them upon application.
All of our employees are free to become or
refrain from becoming membersof the above Union
or any other labor organization.
SEW-MAGIC, INC.
(Employer)
LABOR RELATIONS BOARD
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 1624 Wachovia Building, 301
North Main Street, Winston -Salem , North Carolina
27101, Telephone 919-723-9211, Ext. 360.