Hamburg Shirt Corp.

National Labor Relations Board - Board Decisions

Dec 30, 1965

156 N.L.R.B. 511 (N.L.R.B. 1965)

HAMBURG SHIRT CORPORATION 511
Hamburg Shirt Corporation and Amalgamated Clothing Work-
ers of America, AFL-CIO
Hamburg Shirt Corporation and Amalgamated Clothing Work-
ers of America, AFL-CIO, Petitioner . Cases Nos. 96-CA-1867,
06-CA-1921,26-CA-1950,26-CA-1977, and 26-RC-2203. Decem-
ber 30, 1965
DECISION AND ORDER
On August 4, 1965, Trial Examiner Abraham H. Mailer issued his
Decision in the above-entitled proceedings, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of Section 8(a) (1), (3), and (5) of the National
Labor Relations Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. The Trial Examiner
further found that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recommended that
the complaint be dismissed with respect to the latter allegations. The
Trial Examiner also found merit in certain objections to the election
of July 17, 1964, and recommended that the election be set aside.
Thereafter, the Respondent and the Charging Party each filed excep-
tions and supporting briefs. The General Counsel filed an answering
brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Fanning, Brown, and Jenkins].
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 these cases, and hereby adopts the findings," conclusions, and recom-
mendations of the Trial Examiner as modified herein.2
[The Board adopted the Trial Examiner's Recommended Order and
set aside the election held on July 17, 1964, dismissed the petition for
'We find that Respondent 's use of the questionnaire among its employees was unlaw-
ful and violative of Section 8(a) (1), particularly because many employees were not told
that their participation in answering the questions was voluntary nor given assurances
that no reprisals would result Plains Cooperative Oil Mill, 154 NLRB 1003. In these
circumstances, we and it unnecessary to consider the other rationale relied upon by the
Trial Examiner in finding the questionnaire to be violative of Section 8(a) (1).
2 We also agree with the Trial Examiner's finding that when the Respondent received
the Union's request to bargain on June 8, the Union held valid authorization cards from
a majority of the Respondent's production and maintenance employees However, we
do not find it necessary to determine, and we do not herein pass upon, the Trial Examiner's
conclusion that an additional group of 23 employees, who were not essential in establish-
ing the Union's majority, had not validly designated the Union as their bargaining
representative
156 NLRB No. 51.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certification of representatives filed by the Petitioner in Case No. 26-
RC-2203, and vacated all proceedings held in connection therewith.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
In Case No. 26-CA-1867, Amalgamated Clothing Workers of America, AFL-CIO,
herein referred to as the Union, filed a charge on July 8, 1964,1 an amended charge on
July 9, and a second amended charge on July 27. Upon said charges, the Regional
Director for Region 26 of the National Labor Relations Board, herein called the
Board, on September 3, issued a complaint on behalf of the General Counsel of the
Board against Hamburg Shirt Corporation, herein called the Respondent, alleging vio-
lations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended (29 U.S.C. Sec. 151, et seq ), herein called the Act On September 2, the
Union filed another charge against the Respondent in Case No. 26-CA-1921. Further
charges in said case were filed by the Union on September 8 and October 7. On
October 7 the Regional Director issued an amended and consolidated complaint. On
October 8 the Union filed a charge in Case No 26-CA-1950, and on October 28 the
Regional Director issued a second order consolidating cases and an amendment to the
amended and consolidated complaint. In its duly filed answers to the original and
amended complaints, Respondent denied the commission of any unfair labor practice.
In Case No. 26-RC-2203, pursuant to a stipulation for certification upon consent
election, an election by secret ballot was held on July 17. A tally of the ballots showed
that there were approximately 116 eligible voters and that 118 ballots were cast, of
which 43 were for the Petitioner (Union), 67 were against the Petitioner, 8 were
challenged, and I was void. On July 24, the Petitioner filed timely objections to con-
duct affecting the results of the election. Thereafter, the Regional Director caused an
investigation to be made of the objections and, on August 19, issued and served upon
the parties his report on objections in which he recommended that certain objections
be overruled, that one be sustained, and that the election be set aside and a new elec-
tion be directed. As to the remaining objections, he found that they raised material
and substantial issues which could best be resolved on the basis of record testimony.
Accordingly, he recommended that, if his other recommendations are not adopted, a
hearing be directed as to these objections and that such hearing be consolidated with
the complaint case. The objections are more fully discussed infra The Respondent
filed timely exceptions to the Regional Director's report insofar as it related to the
objection which the Regional Director sustained. On November 9, the Board ordered
that a hearing be held to resolve the issues raised by certain of the objections and
that such hearing be consolidated with the hearing in the complaint cases refei red to
above. On November 13, the Regional Director issued an order consolidating Case
No. 26-RC-2203 with the complaint cases hereinabove described.
Pursuant to notice, a hearing was held before Tiial Examiner Abraham H. Mailer
beginning on November 30 and terminating on December 15, 1964. Hearings were
held in Crossett and Hamburg. Arkansas All parties were represented and were
afforded full opportunity to be heard and to introduce relevant evidence At the out-
set of the hearing, counsel for the General Counsel, pursuant to a telegraphic notice
of November 23, moved to amend the complaint further to allege that Respondent by
its agent William H. Sutton on or about November 12, had interrogated its employees
concerning employee union membership, activities, and desires I granted the motion
and consolidated the amendment, designated as Case No. 26-CA-1977, with the other
complaints in the case. At the close of the hearing all pasties were given the oppor-
tunity to present oral argument and to file briefs with me. Briefs were filed by counsel-
for the General Counsel and by the Respondent.
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of each of the witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein, an Arkansas corporation,
with its principal place of business at Hamburg, Arkansas, where it is engaged in the
manufacture, sale, and shipment of shirts. During the 12 months immediately preced-
'All the events in the instant proceeding , unless otherwise specified , occurred in 1964
HAMBURG SHIRT CORPORATION 513
ing the issuance of the complaint, Respondent manufactured, sold, and shipped from
its Hamburg, Arkansas, plant, finished products valued in excess of $50,000 to points
outside the State of Arkansas, and during said period received at its Hamburg,
Arkansas, plant, from points located outside the State of Arkansas, materials valued
in excess of $50,000. In view of the foregoing, I find and conclude that the Respond-
ent is engaging in commerce within the meaning of the Act and that it will effectuate
the policies of the Act for the Board to assert jurisdiction here.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, AFL-CIO is, and has been at all
times material herein, a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUES
1. Whether the Respondent interfered with, restrained, and coerced its employees-in
the exercise of rights guaranteed in Section 7 of the Act by (a) surveillance,, (b) giving
the impression of surveillance, (c) promises of benefits, (d) threatening to close the
plant if the Union came in, and (e) interrogating employees concerning their union
membership, activities, and desires.
2. Whether the Respondent discharged the following employees: Betty Jean
Streeter, Carrie N. Leasure, Lula Taylor, Gay Nell Biggs, Imogene Cotton, and
Dianne Jackson, and laid off Lois Williams because they joined the Union or gave aid
or support to it.
3. Whether the Union represented a majority of the employees of the Respondent
on June 5, 1964, when it made its request for recognition and bargaining.
4. Whether Respondent's refusal to bargain was based on a good-faith doubt as to
the Union's majority.
5. Whether the election should be set aside.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The town of Hamburg, Arkansas, is the seat of Ashley County and at the last census
had a population of 2,904. Until the establishment of Respondent's plant, Hamburg
had no industry, and the businessmen of the town, comprising the chamber of com-
merce, were anxious to secure the introduction of industry to improve the economy of
the town. For that purpose they had organized the Hamburg Industrial Development
Corporation and had been in touch with the State Industrial Development Corporation
which was seeking to bring industry to Arkansas. During 1961-62, Bernstein and Son
Shirt Corporation had decided to build another plant.2 Eventually, representatives of
the Hamburg Industrial Corporation and Bernstein and Son Shut Corporation met,
and the latter decided to establish a plant in Hamburg. The plan developed for the
establishment of the plant called for the issuance of bonds in the sum of $300,000 by
Ashley County which was to provide for the erection of a plant building and the
defrayal to the Respondent of its training costs.8
Before the bond issue was passed, various businessmen at Hamburg endorsed a note
to a bank to raise $30,000 with which to purchase a site for a plant to be erected and
raised additional funds to be given to Respondent to inaugurate the training program.
The note was retired when the bond issue was floated.
A new corporation, Hamburg Shia Corporation, the Respondent herein, was
formed as a subsidiary of Bernstein and Son Shirt Corporation, and the Respondent
entered into a contract with Ashley County, under which it established a temporary
plant in an old building on the fairgrounds of the town and entered into a lease with
the county for a new plant building which was to be erected according to certain
specifications The rental for the new plant building was fixed at a sum which would
retire the bonds issued by the county at the end of 20 years. The bonds were secured
by an increase in taxes on real estate in the county.
2 At that time 'Bernstein and Son Shirt Corporation operated a shirt factory at Crystal
Springs, Mississippi, through a subsidiary, Crystal Springs Shirt Corporation.
3In deciding to establish a plant at Hamburg, Bernstein and Son Shirt Corporation
contemplated the use of untrained labor available in the area. Since the Respondent
would be required to pay employees a minimum wage which might be in excess of their
actual production, the defrayal of training costs was contemplated to reimburse the
Respondent for the difference between the amount earned by the trainees measured in
terms of their production and the minimum wage which they were paid.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By May 11, 1964, the new building was ready for occupancy, and on that date
Respondent moved its operations into the new building. Respondent, however, did
not officially accept the new plant building, contending that there were defects in the
building, viz, there was water dripping from the ceiling apparently caused by water
trapped between the roof and the ceiling. Respondent did not officially accept the
new building until approximately November 1, although Paul Bernstein , treasurer of
Respondent, admitted that the defects had not been remedied, and water was still
dripping from the ceiling.
B. Sequence of events
1. The Union's organizing campaign and request for recognition
The Union' s organizing campaign began on May 28 when Arthur Hebner, a
national representative of the Union, got in touch with Lula Taylor, an employee of
Respondent. With the aid of employees Lois Williams and Joyce Pennington , Taylor
got together a group of women who met with Hebner at a roadside park on Highway
82, approximately 3 miles south of Hamburg .4 At this meeting, Hebner distributed
cards which read as follows:
APPLICATION FOR MEMBERSHIP
in the
Amalgamated Clothing Workers of America
209V2 W. SECOND FRanklin 4-6750 LITTLE ROCK, ARK.
I, the undersigned, hereby apply for membership in the Amalgamated
Clothing Workers of America, and do hereby appoint and authorize the
officers thereof, to represent and negotiate for me in all matters pertaining
to wages, hours and other conditions of employment.
Name (Please sign): ---------------------------------------------
Address: -------------------------------------------------------
Telephone No.------------------------------ Date: --------------
Company: -----------------------------------------------------
Department - ------------------------ Operation:
Sign: ---------------------
Hebner read the card to those present and asked them to read the cards themselves.
He-explained that the card could be used for several purposes: to get an election, to
negotiate a contract, and as a card check. Thirteen of those present organized them-
selves into the organizing committee, and on June 1 Hebner sent the following tele-
gram to the Respondent:
PLEASE BE ADVISED THAT THE FOLLOWING NAMED EMPLOYEES
OF YOUR PLANT, HAMBURG SHIRT CORPORATION ARE ON
AMALGAMATED CLOTHING WORKERS OF AMERICA ORGANIZING
COMMITTEE: LEVETER BANKS, LULA TAYLOR, LOIS WILLIAMS,
MERLENE SWAN, LELA HOLLAND, FRANCES HAGOOD, LINDA
HUGHES, ELVIE LEE THORNHILL, CHRISTENE CARPENTER, JOYCE
PENNINGTON, VERA FIAL, PEARL GOLDEN AND MAE DELL
BELLOTT.
The telegram was received on June 2 by Plant Manager Robert Grantham who
that day informed Bernstein and Son Shirt Corporation in New York by telephone.
The organizing committee proceeded forthwith to obtain signatures to the union
cards, and by June 5 had signed up 92 out of the 123 rank-and-file employees of the
Respondent." On that date, the Union wrote to the Respondent stating that it
represented a majority of the production and maintenance employees, requested recog-
nition and negotiation, and offered to submit "signed membership cards to an impartial
person, of public standing in your community, for a check against your current payroll
in order to prove our majority status." Plant Manager Grantham received this letter
on June 8 and called Treasurer Paul Bernstein in New York and told him of the
letter. He also told him that "numerous" girls had come to him and told him that they
were confused. Bernstein admitted that Grantham had never mentioned the number
I With very few exceptions , Respondent 's production and maintenance employees are
women.
5 Respondent contends that a great number of the employees who signed union cards
were induced to do so by misrepresentations as to the effect of the cards and that there-
fore the Union did not represent a majority of the employees The facts relating to this
contention and ray-findings and conclusions thereon are set forth infra.
HAMBURG SHIRT CORPORATION 515
of girls who had so complained to him.6 Grantham also admitted that he did not
have any information which would lead him to recommend that the Union 's request
for recognition be denied.
Shortly after he received the Union 's request for recognition , Grantham received
a petition for an election . He thereupon wrote letters to all of the employees , includ-
ing those on the organizing committee , stating that he did not feel, under the circum-
stances that he could voluntarily recognize the Union , but felt that the employees
were entitled to a vote.
2. Plant Manager Grantham 's speech
On June 5, Plant Manager Grantham made a speech to the employees in which he
told them that some of the employees had told him that they had to sign a union card
or would be fired; that Arkansas permits an open shop and they need have no fear for
their jobs ; that the Respondent would give them insurance which would not cost them
a dime, while the only thing that the Union had to offer was a picket line ; that he did
not want a union; that the red mark system had been discontinued and that Respondent
was going to restudy the production quotas; that some of the production quotas were
too high; and that the employees could go to the persons to whom they had given
their union cards and demand them back.?
The red mark system referred to by Plant Manager Grantham was a means of
informing the employees whether they had reached their production quota for a
2-week pay period. In April, Respondent posted green slate boards on which it
wrote the names of each of the employees and their payroll period production , indicat-
ing what percentage of the quota each employee had produced . When an employee's
production was too far below the quota for a payroll period, a red mark was placed
opposite the employee 's name. If an employee received three red marks, she would
be discharged . The red mark system caused considerable dissatisfaction among
Respondent 's employees for two reasons : ( 1) The employees felt that the quotas
were too high , and (2 ) it was rumored that female employees seen going out socially
with Grantham in the evening had had their red marks removed. After Grantham's
speech, Respondent stopped posting production percentages on the boards.
Although Plant Manager Grantham admitted that in his speech of June 5 he had
announced the discontinuance of the red mark system , he later sought to minimize the
promissory effect of the announcement by testifying that he had told "several bunches
of the girls" around May 21 or 22 that the red mark system was going to be discon-
tinued "and in about 10 minutes it was all over the plant." I do not credit Grantham's
testimony in this regard . Not only is it contradicted by employees Fox, Marcile
Norrell, Williams, and Biggs, who testified that they heard no rumors before
Grantham 's speech, but none of the witnesses testified affirmatively that they had
heard any rumors to that effect.8 Moreover, there is credible evidence in the record
that the production boards with the red marks were still on the walls of the plant
when Grantham made his speech.
e Although Grantham testified that 14 or 15 girls told him that they were told they
would be discharged if they did not sign a card , he was unable to state the names of such
employees . Later , he identified one employee , Marcile Pilgrim , who told this to him.
However, two employees, Ladd and Coody, testified that they had told Plant Manager
Grantham that they would like to get their cards back. There is also testimony by
Supervisor Margaret Riley that in addition to Ladd and Coody, six other employees told
her that they had not signed for the purpose of joining the Union . However, there is
no testimony that she ever communicated this information to either Plant Manager
Grantham or Treasurer Bernstein.
'The credited testimony of Taylor , Merlene Swan , and Holland . Plant Manager Grant-
ham admitted making the speech but said that all he had told the employees was that the
red mark system had been discontinued and that they could go to the persons to whom
they had given their union cards and demand that the cards be returned to them. I
do not credit Plant Manager Grantham ' s limited version of his speech . Grantham did
not appear to be a straightforward witness and was evasive even on such unimportant
matters as whether the supervisors wore white aprons.
8 While employee Streeter testified that she had heard rumors about the red marks'
being done away with , she explained that what she had heard was "that some of the girls
had been to the businessmen up town and talked that over and they had said they would
see what could be done . . . This comports with other evidence in the record that a
number of employees had gone to see various businessmen , asking them to intercede with
the Respondent for the purpose of having the red mark system terminated.
217-919-66-vol. 156-34
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The meeting at the courthouse
That evening the Union held a meeting at the Labor Temple in Crossett, Arkansas.
At that meeting, three of the employees, Kilcrease, Ladd, and Cecil, told Organizer
Hebner that they wanted their cards back. Hebner told them that cards had been
sent to the Board, but that they could kill the effects of the card. The following morn-
ing, Ladd and Kilcrease called on Chamber of Commerce President Carl Locke and
,discussed with him the possibility of getting back their union cards. It was decided to
call a meeting of the community to be held at the courthouse the following Monday,
June 8, and a notice to that effect was placed on Respondent's bulletin board. Locke
then consulted Attorney William Arnold who suggested the preparation of a with-
drawal card to be signed by employees who wanted their cards back. Locke had such
withdrawal cards prepared in his office and gave them to Kilcrease.
Locke acted as chairman of the meeting at the courthouse, which was attended by
employees and businessmen. Among those present was Attorney Herman Hamilton
who was later retained by the Respondent. Locke testified that he asked Plant
Manager Grantham not to attend in order that the employees might be free to ask
questions. Various people spoke at the meeting, both for and against the Union.
Locke told the assembly that this was an improper time to organize the plant and that
the businessmen were seeking to give the Respondent probably a year to establish
itself undisturbed and uninterrupted. He also told them that there had been plants in
Mississippi and Arkansas which had closed because of unions and that the business
people had worked hard to get the Respondent to establish a plant in Hamburg .9
Locke suggested that the employees form their own grievance committee, and
announced that withdrawal cards were available at the meeting. At the conclusion of
the meeting approximately 15 employees came toward the front where the withdrawal
cards were available.10 A few days after the meeting, Kilcrease brought the with-
drawal cards to Carl Locke who kept them in his office. Locke testified that as far as
be knew the cards might still be in his office.
4. The businessmen's antiunion campaign
Between the inception of the organizing campaign and until the election on July 17,
various businessmen of Hamburg conducted an antiunion campaign. Locke enlisted
the services of his brother-in-law, Rev. Raymond Carpenter, minister of the Gardner
Baptist Church, and assistant postmaster of Hamburg, to speak with members of his
church. Reverend Carpenter admittedly did so. He visited approximately 10 of his
parishioners who were employees of Respondent and asked them to vote against the
Union. He told them among other things, "It had been told to me that there was a
possibility that if a union was voted here that this plant would close, that the manage-
ment had not yet accepted the delivery of the building ... a lot of these businessmen
in this town invested quite a sum of money in that building down there and these
people are my friends. It didn't make sense to me for something like that to take place
and these men be left holding the bag." 11
On or about June 2, Earl Scott spoke to employee Taylor and told her that he and
other businessmen had personal money in the plant and if the plant moved they would
lose their money. He also told her that the production standards were going to be
reconsidered and, if found to be too high, would be lowered and that the red marks
would be done away with.12
Scott also talked to employee Bonds and told her that "the plant would have closed
down the weekend after the first union meeting if he, and George Ed Locke, and
Attorney Arnold hadn't gone to New York." 13
On or about July 14 or 15, Searcy Wilcoxon, Jr., another businessman, called at the
home of employee Stell. Stell's husband was present and asked Wilcoxon why there_
were rumors that the plant would go down in 6 months if the Union came in, and
Q The credited testimony of Leasure, Sparkman, Taylor, and Kilcrease, not contradicted
by Locke.
10 The record does not indicate whether all of these persons actually signed withdrawal
cards. The withdrawal cards were not introduced into evidence. Only three employees,
Coody, Johnson, and Sparkman, testified that they signed withdrawal cards at the meet-
ing. To these should be added the names of Ladd, Kilcrease, and Ciyda Faye Brown
who testified that they instigated the meeting and/or that they distributed withdrawal
cards at the plant.
"Another businessman , Earl Scott, had asked Reverend Carpenter to preach against the
Union in his church , but Reverend Carpenter refused to discuss the Union from the pulpit.
12The uncontradicted testimony of Taylor.
Is The uncontradicted testimony of Bonds.
HAMBURG SHIRT CORPORATION 517
Wilcoxon replied that it would go down in 6 months, that Bernstein had indicated a
possibility of bankruptcy, and that the town would have an empty building to pay for
with taxes. Wilcoxon told them also that he had visited nine other employees that
evening.14
Employee Lena Maxie Carpenter testified that Wilcoxon called upon her twice. On
July 13, he asked her how she felt about the Union, but Carpenter refused to give him
any information. Wilcoxon then spoke "about the opportunities if the plant didn't
close, the opportunities there would be in supervisors, and I told him I didn't want any
part of it, and he asked me if I knew that if the Union went in that the plant would
go down and the taxpayers here in Ashley County would have to pay for an empty
building." On July 16, Wilcoxon called upon Carpenter again. In the conversation
Carpenter asked, "Well, if the union came in just what would it hurt?" Wilcoxon
did not answer. They also discussed the matter of production quotas. Carpenter told
him that hers was too high, and Wilcoxon told her that he had talked to Paul Bern-
stein who had said that some of them were going to be lowered.
Indeed, Wilcoxon revealed a surprising amount of knowledge concerning Respond-
ent's operations. Thus when he called on employee Bellott, he told her that the
Respondent had to average 91 cents per hour production for each employee in order
to be out of debt, and when Bellott told him that she was producing at the rate of 84
cents per hour, he said he knew she was one of the bottlenecks, but that if the girl
furnishing her with material would improve, Bellott could raise her earnings to 91
cents per hour. Wilcoxon later told her that he got this information from Bernstein.
Hudson Rodgers, a local businessman, asked employee Cotton what she thought
about the Union. Cotton told him that she thought one was needed. Rodgers then
quoted Bernstein as saying that "if the Union came in, he would close down, ... that
he didn't have a union at any of his other buildings and he wasn't going to have one
in that one." Cotton said that she had worked in places where the same thing had
been said, but were still operating after the union came in. Rodgers then said, "Yes,
but this fellow means business. As long as he has not signed the contract he has us
over a barrel and there is nothing we can do about it." 15
Bruce Smith, a member of the chamber of commerce, called on employee Bardin
at her home and asked for her cooperation by voting against the Union so that the
town would not lose Respondent's plant. He said he was sure that Respondent would
move, "that we didn't have any hold on them to keep them here if they wanted to
leave." is
5. The alleged surveillance of June 23
On June 23, after working hours, the organizing committee of the Union held a
meeting at the roadside park. During the meeting Plant Manager Grantham, riding
in a pickup truck driven by Joe Curtis, mechanic at Respondent's plant, drove up
slowly. The assembled employees waved at Grantham and he waved back at them.
A few minutes later, the truck drove back toward Hamburg, again being driven
slowly. Plant Manager Grantham, corroborated by Curtis, explanied that they were
driving to the home of one Allen Hobbs who lived nearby; that Hobbs was in the
business of repairing air-conditioners; and that Grantham wanted to discuss with
him the repair of an air-conditioner in the trailer in which Grantham lived. Grant-
ham explained further that Highway No. 82, on which the roadside park is situated,
makes a right angle turn toward Crossett approximately 100 yards beyond the road-
side park and that there is a stop sign at that point; that Highway No. 139 originates
at that point where Highway 82 makes the right angle turn and proceeds southward
from that point and that Hobbs lived a short distance beyond that point on Highway
No. 139. In view of the stop sign approximately 100 yards beyond the roadside
park, it was necessary for Curtis to slow down his vehicle when approaching the
stop sign. Grantham explained further, corroborated by Curtis, that Hobbs was
14 The credited testimony of Stell.
' Rodgers admitted talking to employee Cotton, but all he recalled of the conversation
was that he said it looked like a bad time to organize the plant and that the plant needed
a little more time to get its feet on the ground. I credit Cotton's version of the conversa-
tion. The statements attributed to Rodgers by Cotton are consistent with what Reverend
Carpenter admittedly told his parishioners and with the statements attributed to other
businessmen.
16 Smith admitted talking to Bardin, but testified that he told her only that he be-
lieved that this was an inopportune time to organize the plant ; that when Bardin asked
him whether he thought the plant would close if it went union, he answered that he did
not know. For the reasons stated above, I credit Bardin's testimony.
x518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not at home and they thereupon returned to Hamburg . In doing so they were again
compelled to stop before entering on Highway No. 82. Having just stopped, the
vehicle was not proceeding in a swift manner. I find Grantham 's explanation
credible.17
6. The discharge of June 30
On June 30 , Respondent discharged Carrie Leasure, Lula Taylor , and Betty J.
Streeter . Counsel for the General Counsel contends that they were discriminatorily
discharged . Respondent contends that they were discharged for cause . The facts
surrounding these discharges and my conclusions thereon are discussed infra.
7. Bernstein 's speeches and interviews with employees
Treasurer Bernstein made three speeches to Respondent 's employees : on June 15
and July 8 and 16. The record does not disclose what Bernstein said in the first
speech. In his speech of July 8, Bernstein assured the employees that no one was in
danger of losing her job because of her loyalty to the Company . He pointed out that
although some employees had recently been discharged , the rest of the employees
were showing satisfactory progress and did not have to be worried about their jobs.
He stated that "new supervisory jobs will be opening up if we grow and progress as
we hope to do. Our need for qualified supervisors is increasing daily. In time we
hope to be able to choose people to fill these jobs from your ranks."
Commenting on the Union's campaign he said:
Through its propaganda the Union has attempted to make you believe that the
only way you will be able to get these things is through their forceful tactics of
strikes and picket lines. This is not true , and I ask you for the opportunity of
proving that it is not true . There is no doubt that union organization has many
disadvantages for you. It can be very expensive , it calls for a surrender of
individual rights, it destroys the warm and friendly relationship between employ-
ees and management , it results in hard feelings , and on many occasions it has
even lead to violence.
In his July 16 speech, Bernstein again repeated that the rest of the employees were
satisfactory and stated that there was no sense paying dues and fines to get benefits
which the employees already have.18
At the conclusion of his speeches of July 8 and 16, Bernstein invited the employees
to come to his office to ask any questions that might be bothering them, and that the
supervisors had been instructed to relieve employees of their duties for this purpose.
Pursuant to Bernstein 's invitation , a number of employees went to the office in groups
to ask various questions . Uppermost in the minds of the employees was the fear
implanted by the businessmen that the plant would close if the Union came in. Thus,
employees Rowe and Cotton, together , asked Bernstein what business it was of the
businessmen to interfere with the employees ' desire for a union. Bernstein replied
that if you built a fence around something you would not want somebody to tear it
down.19
17 By way of further clarification : Highways Nos. 82 and 139 form a T, approximately
100 yards south of the roadside park , with the east-west leg of Highway No . 82 being
the stem and the north - side leg forming the left arm of the T and Highway No. 139
forming the right arm of the T.
I have observed the area described above and find that there is a stop sign at the point
where Highway 82 turns right toward Crossett , so that all traffic whether turning right
toward Crossett or proceeding across the intersection onto Highway No. 139 is required
to stop. Consequently , a vehicle proceeding southward on Highway No. 82 would nor-
mally be required to decrease its speed about the point where the roadside park is located.
Similarly , traffic proceeding northward on Highway No. 139 and going toward Hamburg
would be required to stop before entering Highway No . 82 and would not normally be
proceeding at a great rate of speed when it passed the roadside park.
"The credited testimony of Dodd , Merlene Swan , Cotton , and Biggs . Bernstein did
.a^.s^ a F, 4 no „ofo;„not give his version of that speech. Only one employee , Hopki!' -
affirmatively stated that the plant would not close . I do not
not even Bernstein testified that he so stated in a speech.
° The credited testimony of Cotton and Rowe. Rowe att
Bernstein , while Cotton attributed it to Plant Manager Granthn
Rowe impressed me as a thoroughly honest and impartial wii
HAMBURG SHIRT CORPORATION 519
Another group consisting, inter alios, of Thornhill, Biggs, Denton, and Hobbs also
spoke with Bernstein in Plant Manager Grantham's office. According to the credited
testimony of Thornhill and Biggs, Thornhill asked Bernstein if he thought it fair of
the businessmen to say that the plant would close if the Union came in. Bernstein
said that he did not think it was something that he could approve or disapprove of.
Biggs then said that the businessmen were using Bernstein's name in saying that the
plant would close and that "it seems to me that you would have something to say
about it." Bernstein did not answer, but changed the subject.20
In the interview, Thornhill told Bernstein that her husband was on the bargaining
committee of his local and that they always got benefits from the company for whom
he worked whenever they signed a contract. Bernstein said, "Well, that may be true,
but I don't have to give you anything at all and the Union can't make me." Thorn-
hill replied, "Well, Mr Bernstein, the law says you have to bargain with us."
Bernstein said, "Well, I will explain to you what bargaining is. The only thing
there is to it is that we would sit there and the union man would say yes and I
would say no, and he would say yes and I would say no and he would say yes and I
would say no, and then if we couldn't agree, the Union would call a strike." 21
Bernstein admitted that he had a conversation with Thornhill about bargaining, but
his version of the incident is somewhat different. According to Bernstein, he said,
"Suppose a man from the Union comes in and says he wants a $1.75 minimum wage.
So, I say to myself, "Well, let's see, I'm paying $1.25 now and in many areas getting
about 50 cents worth of work. So, I really can't see paying $1.75 for that same 50
cents worth of work.' So, the union man says, `Well, we want a $1.75.' So, I say,
`no,' and he says, `yes,' and I say, 'no,' and he says, 'yes' Now, there is nothing in
the world that he can do about that, because I can't afford to, and I'm not going to
pay that. The only thing he can do then, really, , is strike." As between the two
versions, I credit the version of Thornhill and Biggs. It is significant that Plant
Manager Grantham who, Biggs testified, was present at the meeting,22 was not asked
to corroborate Bernstein's version
A group of employees, including Bonds, also went into Plant Manager Grantham's
office to speak with Bernstein. Bonds admittedly asked Bernstein why the business-
men were telling the employees that the plant would close if the Union came in.
Bernstein answered that "the business people were using a selfish motive and that
they were afraid of losing the payroll that Hamburg had." Bonds then asked
specifically whether the plant would close and Bernstein admittedly answered, "Do
you think with a nice building that we have here and with the opportunity that we
have, do you think that it would close down or move?" Later in the interview
2O Denton and Hobbs also testified concerning Thornhill's inquiry, but stated that Bern-
stein answered it in the negative. Bernstein also testified that he answered Thornhill's
question in the negative. While the evidence is conflicting, I was impressed with the
credibility of Thornhill and Biggs and with their fuller account of what had transpired
On the other hand, Denton's testimony was vague. When asked whether she recalled
Thornhill's asking Bernstein whether the plant would close if the Union came in, answered,
"Yes, I do. I believe so. I am not sure" Yet when asked what his answer was, she
said, "But he said definitely none of us would be fired or discharged or the plant would
not close due to union activity." Hobbs' testimony is also opened to question. She
testified that every time Plant Manager Grantham made a talk he stated that the plant
would not close on account of the Union. She was the only one who testified to any
such statements by Grantham, and not even Grantham testified that he made such state-
ments in his speeches to the employees. Nor do I credit Bernstein's statement that he
told Thornhill and Biggs that the plant would not close. Bernstein sought to give the
impression that he found objectionable the rumors of the plant's closing, testifying that
such rumors "would be very detrimental" to Respondent's business because "our cus-
tomers would lose a certain confidence in placing any sort of an order at all in advance . . .
they would not want to be put in a position where a few months later they weren't going
to get shirts." Later, however, he admitted that the orders are placed with Bernstein
and Son Shirt Corporation which designates whether the order is to be filled by the
Respondent, or by Crystal Springs Shirt Corporation, or by an outside contractor. There
is also evidence that orders are filled jointly by Respondent and the Crystal Springs
plant Thus , sleeves cut by the Crystal Springs plant are sometimes shipped to Re-
spondent to be sewn into shirts finished by the latter.
21 The credited testimony of Biggs corroborated by Thornhill.
ra Other employees who interviewed Bernstein in the office following his speeches also
testified that Grantham was present during the interviews.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bernstein said that he could not close the plant because the Government would not
let hint. Bonds also quoted Bernstein as saying, "If you'll notice the backside of
this building, it is built for expansion. There are expansion plans and if the Union
comes in, no one will ever know about the expansion plans or other plans." 23
Another subject of inquiry at these conferences was the matter of vacations.
According to Bardin and Bonds, they asked Bernstein about vacations. Bernstein
replied that he could not promise them anything but that he was working on it.
According to Bernstein, he told them that the matter of vacations would have to be
subject to review at a later date.
8. The Ashley County Leader
The Ashley County Leader is a weekly newspaper published in Hamburg . Publisher
F. H. Reamey testified that although Thursday is the normal publishing date for the
newspaper , the edition dated Thursday, July 16, was actually published and issued on
Wednesday , the day before . Reamey testified that one reason for publishing the
paper a day earlier was so that it would have an impact on the forthcoming election.
On the front page at the center top appeared an editorial entitled "THINK . .
BEFORE YOU VOTE ON FRIDAY" and the editorial concluded as follows:
Therefore, we make this plea to the employees of the Hamburg Shirt Corpora-
tion-KEEP HAMBURG SHIRT CORPORATION IN ASHLEY COUNTY
AND FOR ASHLEY COUNTY-VOTE "NO" ON FRIDAY, JULY 17.
On page 8 of the newspaper appeared a full-page advertisement. The top half of
the page was a cartoon showing a hand (labeled "Amalgamated ") holding an ax
(labeled "Union") poised as though to strike a goose ( labeled "Hamburg Shirt
Corp."). The goose is pictured sitting on a nest containing an egg ( labeled "Ham-
burg"). Below the cartoon across the page in boldface letters almost 1 inch in height
appeared the following:
DON'T KILL THE GOOSE
THAT LAID THE GOLDEN EGG
Below that appeared the following legend:
On Friday, July 17, 1964, the employees of Hamburg Shirt Corp. will vote
in a National Labor Relations Board election to determine whether the plant will
be unionized by the Amalgamated Clothing Workers. This kind of election is
the right of every workman because it gives every worker the opportunity to
protect his own personal interest. However, it is unfair to Hamburg Shirt
Corp. or any other industry to force such an election until the plant has had
time to settle down to normal operation. The result of this election will be
far-reaching. Not only will it decide whether Hamburg Shirt Corp. employees
become members of the Amalgamated Clothing Workers Union, but it will
decide this community's industrial future. New industries are not interested in
moving into a community where they will face labor difficulties before they can
get their plant into operation.
We ask all of Hamburg Shirt Corp. employees to consider this matter seriously.
We ask you-"DON'T KILL THE GOOSE THAT LAID THE GOLDEN
EGG!" Help us to provide a more favorable climate to attract more industry
with more job opportunities and more job security. Let's not lose this industry.
The advertisement concluded with:
VOTE NO AT THE ELECTION NEXT FRIDAY
Reamy testified further that the advertisement was placed by A. P. McCombs, Jr.,
a local insurance agent, who supplied the cartoon and all of the material for the
advertisement. 24
Reamey printed 100 extra copies of the paper and tied the extra copies in a bundle.
They were picked up by an unidentified person and brought to the plant where they
were placed in a box on one of the picnic tables used by the employees to eat their
21 The credited testimony of Bonds. Employee Bardin who was present at the inter-
view with Bonds recalled very little of the interview Upon having her recollection
refreshed, she did recall telling Bernstein that Bruce Smith had told her that the plant
might close if the Union came in and that Bernstein replied that this was not true.
24 The advertisement did not indicate by whom it had been placed.
HAMBURG SHIRT CORPORATION 521
lunch. The picnic tables are just outside of the plant on plant property A sign
placed with the newspapers read "Free-take one." Copies of the newspaper were
also placed inside the plant with a similar sign 23
9. The alleged surveillance of July 16
On the evening of July 16, the organizing committee held a meeting in the private
dining room at Kent's Motel Restaurant in Hamburg. The amended complaint
alleged that Plant Manager Grantham and his wife surveyed the meeting by request-
mg a restaurant employee to inform them what employees had attended that meeting.
The record shows that Grantham and his wife were having dinner in the restaurant
during the dinner hour, but there is no evidence that either he or his wife asked any
restaurant employee to tell them who was attending the meeting in the private dining
room. Kent's Motel Restaurant, at that time, was the only restaurant in Hamburg.2e
10. The election
As previously noted, pursuant to a stipulation for certification upon consent
election, an election by secret ballot was held on July 17. The report of the election
showed that there were 116 eligible voters and that 118 ballots were cast, of which
43 were for the Union, 67 were against the Union, 8 were challenged, and 1 was
void.
11. The open house
On August 20, Respondent held an open house in the new plant building. At the
request of Bernstein, the chamber of commerce sent invitations to its members. Also
at the request of Bernstein, Carl Locke acted as master of ceremonies. In his presen-
tation, Locke told the assemblage how the chamber of commerce had secured the
new industry. He pointed out that "if there had not been any trouble here at this
plant, there wouldn't be room for the chairs that you are sitting in." He continued,
"We had planned to expand and the back wall was left unfinished so that another
building with the same size could be built on and ultimately would employ about
350 people." 27 Bernstein was present during Locke's speech. He was later intro-
duced by Locke and said a few words of welcome.
12. The discharge of Biggs, Cotton, and Jackson
On August 28 Respondent discharged employees Biggs, Cotton, and Jackson.
The facts relating to their discharges and my findings and conclusions thereon are
set forth infra.
13. The layoff of Williams
On September 21 Williams was laid off and at the time of the hearing had not
been recalled. The facts relating to her layoff and my findings and conclusions
thereon are set forth infra.
14. The pretrial interviews
About 2 weeks before the start of the hearing of the instant proceeding, Attorney
William H. Sutton interviewed a number of the employees at the Respondent's office.
Counsel for the General Counsel contends that these interviews constituted coercive
interrogation in violation of Section 8 (a)( I) of the Act. Respondent contends that
it was proper preparation for trial. The facts involved in this phase of the case and
my findings and conclusions thereon are discussed infra.
21 The credited testimony of employees Hughes, Bonds, and Biggs. Plant Manager
Grantham admitted seeing the papers on the picnic tables, but denied that there were any
inside the plant. I do not credit Grantham's denial.
26 There is testimony in the record that such a request was made by Hillman Stevens
Nesbitt, a cousin of Mrs. Grantham. However, Nesbitt's action was not alleged in the
complaint, and when counsel for the General Counsel at the conclusion of his case sought
to amend his complaint further to allege Nesbitt's action in this regard, I denied the
motion because of lack of notice to the Respondent and because of Nesbitt's unavailability
to testify. 'Accordingly, the issue was not fully litigated. Cf. Singer Sewing Machine
Company, 150 NLRB 1319; Valley Transit Company, Inc, 142 NLRB 658, 660.
n The uncontradicted testimony of Biggs, corroborated by Thornhill and Holland.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Concluding findings
1. As to interference, restraint, and coercion
a. Promises of benefits
Plant Manager Grantham's speech of June 5, contained three promises of benefits,
one of which was effectuated immediately. He announced that Respondent would
restudy production quotas, conceding that some were too high. He announced the
removal of the red mark system, and he promised free insurance.28 These promises
were made in the context of antiunion statements, viz, that he did not want a union
and that the only thing the Union had to offer was a picket line. Grantham's state-
ments made shortly after he became aware of the Union's organizing campaign were
clearly calculated to interfere with the employees' right to organize and were violative
of Section 8(a) (1) of the Act, and I so find.
In his speech of July 8, Bernstein urged to the employees to vote against the Union
and said that "new supervisory jobs will be opening up if we grow and progress as
we hope to do Our need for qualified supervisors is increasing daily. In time we
hope to be able to choose people to fill these'jobs from your ranks " Considering the
context in which it was made, in view of the timing of the speech, and particularly
when considered in the light of Grantham's earlier promises, this statement consti-
tuted a definite promise of benefit. Though it was obviously limited in application,
in the sense that not all of the rank-and-file employees could hope to become super-
visors, it held out the hope to all of them that they could rely upon Respondent's gen-
erosity to their benefit. Moreover, as previously noted, Bernstein coupled this prom-
ise with the threat to employee Bonds that "if the Union comes in, no one will ever
know about the expansion plans or other plans."
In this connection, it is interesting to note that Locke's speech on August 20, at
Respondent's open house, made in the presence of Bernstein and not disavowed by
him, also gave substance to Bernstein's promise. Locke pointed out that "if there
had not been any trouble here at this plant, there wouldn't be room for the chairs that
you are sitting in We had planned to expand and the back wall was left unfinished
so that another building with the same size could be built on and ultimately would
employ about 350 people " Had the plant expanded, there would obviously be need
for additional supeivisors, and it is reasonable to expect, as Bernstein admittedly had
promised, that experienced rank-and-file employees would have been selected as
supervisors. More important, Bernstein's failure to disavow Locke's statement was an
independent violation of Section 8 (a) (1) of the Act. For Locke was making clear
to the assembled employees that it was the advent of the Union which had prevented
the contemplated expansion and that therefore continued support of the Union would
redound to their detriment.28
Accordingly, I find and conclude that Bernstein's promise of plant expansion and
the attendant increase of supervisory jobs, his threat that there would be no expan-
sion if the Union came in, and his failure to disavow Locke's statement, constituted
restraint, coercion, and interference in violation of Section 8(a) (1) of the Act.
b. Threats to close the plant
The complaint charges that Bernstein and Plant Manager Grantham threatened
that the plant would close or move if the Union was successful in its organizing cam-
paign. The record does not support the allegation that either Bernstein or Grantham,
personally, made such threats. The complaint further charges that certain named
businessmen also threatened the employees that the plant would close or move in the
event the Union was successful in its organizing campaign, and that the Respondent ,
instigated , acquiesced in, and ratified the conduct of the businessmen.
The evidence detailed above clearly demonstrates that Rev. Raymond Carpenter,
Earl Scott, Searcy Wilcoxon, Jr., Hudson Rodgers, and Bruce Smith made it clear to
various employees that Respondent's plant would close or move if the Union came in.
There is no evidence that Respondent requested these men to make such threats. It
is apparent that they did so of their own volition because the Respondent had not
2' The promise of free insurance was a deviation from Respondent 's previously an-
nounced policy under which employees were entitled to Blue Cross Hospital Insurance
after completing 90 days' employment with the Company, with the Respondent paying
one-half of the premium.
29 Even if their plant expansion did not result in promotion for the rank -and-file em-
ployees, such expansion, in itself, would redound to their benefit in the sense that it would
give them greater job security because of seniority over future hired employees.
HAMBURG SHIRT CORPORATION 523
accepted the plant under its contract with Ashley County, and they feared that the
Respondent would not accept the plant if the Union came in and they would have to
pay taxes to retire the bond issue which had been floated to build the plant.
Nevertheless, even though these businessmen had not been formally authorized to
act for the Respondent, their statements and conduct may be properly attributed to
the Respondent. As the Supreme Court observed in International Association of
Machinists, Tool and Die Makers Lodge No. 35 (Serrick Corp.) v. N.L.R.B., 311
U S. 72, 80:
The employer ... may be held to have ... [violated the Act] even though the
acts of the so-called agents were not expressly authorized or might not be attrib-
utable to him on strict application of the rules of respondeat superior. We are
dealing here not with private rights ... nor with technical concepts pertinent to
an employer's legal responsibility to third persons for acts of his servants, but
with a clear legislative policy to free the collective bargaining process from all
taint of an employer's compulsion, domination, or influence.
See also N.L.R.B v. Arkansas-Louisiana Gas Co., 333 F. 2d 790, 795-796 (C.A. 8).
It is plain that the employees had reason to believe that the businessmen were
speaking for the Respondent The efforts of the businessmen to bring Respondent's
plant to Hamburg were well known to the employees Also, some businessmen,
Locke, Scott, and Bozeman, had assisted women in securing employment with
Respondent 30 Locke, his son George, and Wilcoxori were seen by employees in
Respondent's office at the plant. More importantly, when the employees felt they
had a grievance, they went to see Locke and Scott who successfully intervened with
the Respondent. Thus, Jackie Grantham, the plant manager's wife, was relieved
of her supervisory duties after a complaint had been made to Scott that she had
cursed employee Clyda Faye Brown; also, the employees were given a half day off
before Christmas 1963 after Clyda Faye Brown had asked Locke and Scott to inter-
cede with Respondent for that purpose.31
Respondent did not completely disavow the threats uttered by the businessmen
when the employees called them to Respondent's attention Thus, in his interviews
with Cotton, Rowe, Thornhill, and Biggs, Bernstein had the opportunity to disavow
the threats and thus set the minds of the employees at rest. However, as I have
found above, Bernstein avoided giving a direct answer.
The activities of the businessmen and Respondent's action in regard thereto bear
a striking resemblance to those involved in The Colson Corporation v. N.L.R.B., 347
F. 2d 128, 136-137 (C.A. 8), enfg. 148 NLRB 827.32 In that case the court said that
"[t]here is no question but that the activities of the local businessmen were coercive."
Regarding Respondent's purported repudiation of the businessmen's activities, the
court noted that Respondent had posted a notice on its bulletin board as follows:
We have heard that some local businessmen have spoken with some of our
employees concerning the organization of this plant by a union.
The Company wishes it known that this was done on the businessmen's own
initiative and that they were not authorized by the Company to speak on behalf
of The Colson Corporation.33
Upholding the Board's finding that this notice was inadequate to erase the impression
in the employees' minds of the connection between the employer and the business-
men, the court said (347 F. 2d 128, 137):
The record shows that the businessmen acted in Colson's interests. It is
obvious from the statements made to the employees by the businessmen that the
latter feared increased costs to Colson might foice the company to leave town.
Colson was aware of the activities of these citizens but made no effort to inform
the employees that the businessmen were not acting for the company until Jan-
"'Locke testified that he was merely using his good offices in doing so . I credit his
testimony, but the fact remains that he did assist them in this regard and his conduct
led them to believe that he was close to the Respondent.
i1 The credited testimony of Clyda Faye Brown, an antiunion employee.
ii The one point of difference, viz, that some of the businessmen in that case had had
a'prior connection with a subsidiary of the employer organized for the purpose of estab-
lishing the plant, is not significant, as in the instant case the Respondent was asked
specifically whether the businessmen's statements about plant closing were true and by
failing to disavow them, had ratified them.
3In contrast to the instant case, the employer posted this notice without waiting to be
asked whether the businessmen were speaking for the company.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uary 28th . Dunagan was a frequent visitor at the plant even after the 30th of
November. The businessmen, through the use of CIDC [Caruthersville Indus-
trial Development Corporation], were instrumental in locating Colson in Ca-
ruthersville. . . The January 28th notice was asserted to have been an effective
revocation of any authority the businessmen might have had. The Board found
that the notice was inadequate under the circumstances to erase the impression
in the employees' minds of the connection between Colson and the businessmen.
The notice did not repudiate the previous unlawful conduct nor did it state that
such conduct was against company policy. The notice was not posted until
approximately three weeks after the coercive conduct of the businessmen ... .
The foregoing is peculiarly applicable to the instant case. That Bernstein was well
aware of the activities of the businessmen is evidenced by the fact that he showed no
astonishment when the employees asked him about the statements of the business-
men; rather, he attempted to explain the statements in relation to the interest of the
businessmen in keeping the plant in Hamburg In sum, by his failure to repudiate the
acts of the businessmen. Bernstein confiimed the employees' belief that the business-
men were speaking for him and thereby ratified their action.34
The same is true regarding the editorial and the full-page advertisement in the
Ashley County Leader. A distinction may be drawn between the editorial and the
full-page advertisement. The editorial represented the opinion of the publisher of
the newspaper, whereas, for ought the employees, knew, the advertisement, which
clearly threatened the close of the plant because of the Union, might have been
placed in the paper by the Respondent. Regardless of the distinction, however, the
fact is a large supply of newspapers were placed on the Respondent's premises, both
outside and inside of the plant , with a sign saying "Free-take one." In these circum-
stances it was reasonable for the employees to believe that the sentiments expressed
in the newspaper were those of the Respondent Respondent could have disabused
the employees of this belief, but it said nothing and by its silence affirmed and adopted
these statements and thereby ratified them.
In view of the foregoing, I find and conclude that Respondent by its conduct rati-
fied the various threats that the plant would close if the Union were successful, in
violation of Section 8(a) (1) of the Act.
c. Interrogation
As previously noted, about 2 weeks before the start of the hearing of the instant
proceeding, a number of Respondent's employees were called into Respondent's
office individually 35 and interviewed by Attorney Sutton.
The interviews were conducted on the basis of a uniform questionnaire which
read as follows
Name
1. Have you ever signed a union card for Amalgamated Clothing Workers of
America's
ANSWER:
2. When you signed the card were you told that the card was not a vote for
the Union?
ANSWER:
"In support of its contention that it is not responsible for the activities and state-
ments of the businessmen, Respondent relies on: Electra Manufacturing Company, 148
NLRB 494, Morehead City Garment Company, Inc., 94 NLRB 245; N L.R.B v. Armco
Drainage & Metal Products , Inc., Fabricating Division, 220 F. 2d 573 ( C.A 8) ; and--
Livingston Shirt Corporation , at al., 107 NLRB 400 These cases are clearly distinguish-
able. In none of them was the employer asked point -blank by the employees whether the
statements of the businessmen were true . Consequently , they do not present a factual
situation in which the employer was specifically called upon to repudiate the statements,
and by failing to do so could be deemed to have ratified them. To the contrary, in
Armco "[t]he general manager of respondent . . . prior to this alleged statement, had
clearly stated to the employees , in answer to a question on this very point, and, apparently,
to clear up unfounded rumors, that the Company would not close its plant if the union
won" (220 F. 2d at p. 581 ). Similarly , in Electra the local newspaper carried two an-
nouncements by the employer that the plant would remain , and the union reprinted these
articles in a leaflet which it issued.
as Except employee Caine who was interviewed at the same time as employee Donna
Woods.
HAMBURG SHIRT CORPORATION 525
3. Were you told that the card did not obligate you to join the union?
ANSWER:
4. Were you told that the card was merely for the purpose of getting a chance
to vote on the union9
ANSWER:
5. Who presented the card to you?
ANSWER:
6. When did you sign the card?
ANSWER-
7 After signing the card did you later wish to withdraw from the union after
finding out what the card was?
ANSWER-
8. Did anything that any supervisor for the company did or said have any-
thing to do with your withdrawal from the union?
ANSWER:
9. Did anything that any townspeople did or said have anything to do with
your withdrawal from the union?
ANSWER:
10. Were you contacted by any townspeople about the Union?
ANSWER:
11. Did any such person represent to you that he was acting for the company?
ANSWER:
12. Were you ever interrogated about your feeling about the Union by any
supervisor?
ANSWER:
13. Were you ever threatened with discharge or disciplinary action by any
supervisor because of the Union?
ANSWER:
14. Has any supervisor, or Mr. Bernstein ever threatened to close the plant
or take any other action if the Union was voted in in your presence.
ANSWER:
15. Have any benefits been promised to you during the Union campaign?
ANSWER:
16. When you voted at the election on July 17, 1964, did you feel that you
were voting your own conviction without interference from any source?
ANSWER:
17. Did you feel that any action would be taken by the Company that would
affect you in any way if you voted for the Union?
ANSWER:
Attorney Sutton read the questions to the employees and recorded their answers
on the questionnaires. When an employee complained that she did not understand a
question, Attorney Sutton merely repeated the question.36 At the end, the employee
was asked to sign the questionnaire. Three refused to do so.
The complaint as amended charges that the foregoing interrogation was violative of
Section 8(a)(1) of the Act. Respondent defends on the ground that the interviews
were necessary in order to prepare for the hearing.
The Board and the courts have held that, despite the inherent danger of coercion,
where an employer has a legitimate interest to inquire, he may exercise the privilege
of interrogating employees on matters involving their Section 7 rights without incur-
ring Section 8 (a) (1) liability, and that one of the purposes found to be legitimate is
the investigation of facts concerning issues raised in a complaint where such inter-
rogation is necessary in preparing the employer's defense or trial of the case.
The Court of Appeals for the Fifth Circuit has pointed out that "it is a matter
of drawing a balance between the separable rights of the employer and the employees,
delicate in all events, and one that requires the utmost in care and good faith on the
part of company counsel.... The line between proper preparation of a defense in
a proceeding of this type and conduct prohibited by the Act is fine indeed."
(N.L.R.B. v. Guild Industries Manufacturing and Paul A. Saad, 321 F. 2d 108, 113,
114.)
The leading case on this subject is Joy Silk Mills, Inc. v. N.L.R B., 185 F. 2d 732,
743 (C.A.D.C.) enfg. as modified 85 NLRB 1263 cert. denied 341 U.S. 914. In
that case the court held:
The Board has held that "an employer is privileged to interview employees
for the purpose of discovering facts within the limits of the issues raised by a
One employee complained to him that some of the questions could not be answered
with a "Yes" or a "No."
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint, where the employer, or its counsel, does so for the purpose of pre-
paring its case for trial and does not go beyond the necessities of such prepara-
tion to pry into matters of union membership, to discuss the nature or extent
of union activity, to dissuade employees from joining or remaining members of
a union, or otherwise to interfere with the statutory right to self-organization."
May Department Stores Co., 70 NLRB 94, 95.
Apparently this rule means that an employer may question his employees in
preparation for a hearing but is restricted to questions relevant to the charges of
unfair labor practice and of sufficient probative value to justify the risk of intimi-
dation which interrogation as to union matters necessarily entails; and that even
such questions may not be asked where there is purposeful intimidation of
employees. Such a standard assumes that interrogation of employees concerning
their union activities is, of itself, coercive, but that fairness to the employer
requires that a limited amount of such questioning be permitted despite the
possible restraint which may result.
We think that the standard established by the Board, as just described, is a
reasonable one, and aptly designed to carry out the purpose of the Act.
More recently the Board has restated the specific guidelines as follows:
In allowing an employer the privilege of ascertaining the necessary facts from
employees in these given circumstances, the Board and courts have established
specific safeguards designed to minimize the coercive impact of such employer
interrogation. Thus, the employer must communicate to the employee the pur-
pose of the questioning, assure him that no reprisal will take place, and obtain
his participation on a voluntary basis; the questioning must occur in a context
free from employer hostility to union organization and must not be itself coercive
in nature ; and the questions must not exceed the necessities of the legitimate pur-
pose by prying into other union matters, eliciting information concerning an
employee's subjective state of mind, or otherwise interfering with the statutory
rights of employees. When an employer transgresses the boundaries of these
safeguards, he loses the benefits of the privilege. (Johnny's Poultry Co., 146
NLRB 770, 775.) 87
An analysis of the testimony concerning the interviews reveals that all of the
necessary safeguards were not observed.
Thirty-two witnesses testified that they had been interviewed. Six testified merely
that they had been interviewed, but did not testify regarding the manner of the inter-
view. As to the purpose of the interview, 13 testified that they were told what the
purpose of the interview was, while only 3 testified that they were not told or did not
remember being told. In view of the overwhelming preponderance on this phase of
the issue, I am satisfied that Attorney Sutton did apprise the employees of the purpose
of the interview, and I so find. As to whether the employees interviewed participated
on a voluntary basis, 13 testified that they were not told that they had to answer the
questions, and 6 that they did not remember being so told, while only 6 testified
affirmatively that they received such assurance. As to whether Attorney Sutton assured
them that the Respondent would take no reprisals again them if they failed to
cooperate with him, 13 witnesses testified that they did not receive such assurance, and
7 did not remember Attorney Sutton's giving them any such assurance, while only 3
testified that they were so assured. In view of all the foregoing, I find that Respondent
did not provide all of the necessary safeguards when many of the employees were
interviewed. Valley Gold Dairies, Inc., et al., 152 NLRB 1470.
Some of the questions went beyond the scope of the permissible area of interroga-
tion . Questions Nos. 7, 8, 9, 16, and 17 were inquiries into the employee's subjective
state of mind. Questions such as these were held to be violative of the Act in Joy
Silk Mills, supra. The court there pointed out (185 F. 2d at 743-744):
The questions which have here been held violative of the Act, while perhaps
relevant to the charges made against the employer, would yield little in the way
of proof as to whether or not unfair labor practices had been committed. This
is especially true of those which deal with the employee's subjective state of mind,
such as questions 7, 8, 14, 21, and 25. See N.L.R.B. v. Donnelly Garment Co.,
330 U.S. 219, 230-231, 67 S. Ct. 756, 91 L. Ed. 854. It has been held that an
37 The Court of Appeals for the Eighth Circuit recently denied enforcement of the
Board's decision in Johnn4e's Poultry Co., 146 NLRB 770. However, it should be noted
that the court did not disagree with the standards set forth above, but denied enforce-
ment on the ground that "the Board's determination on this issue is not supported by
substantial evidence." N.L.R.B. v. Johnn4e's Poultry Co., and John Bishop Poultry Co.,
344 F. 2d 617 (C.A. 8).
HAMBURG SHIRT CORPORATION 527
employee's thoughts (or after-thoughts) as to why he signed a union card, and
what he thought that card meant, cannot negative the overt action of having
signed a card designating a union as bargaining agent. N.L.R.B. v. Sunshine
Mining Co., 9 Cir., 110 F. 2d 780, 790; N.L.R.B. v. Consolidated Machine Tool
Corp., 67 N.L.R.B. 737, 739, enforced 163 F. 2d 376, certiorari denied 332 U.S.
824, 68 S. Ct. 164, 92 L. Ed. 399. Similarly it has been consistently held that
the question is not whether an employee actually felt intimidated but whether the
employer engaged in conduct which may reasonably be said to tend to interfere
with the free exercise of employee rights under the Act. N.L.R B. v. Link-Belt
Co., 311 U S. 584, 588, 61 S. Ct. 358, 85 L. Ed. 368; N.L.R.B. v. Ford, 6 Cir.,
170 F. 2d 735, 738. We think the Board was justified in its conclusion that ques-
tions 7 through 14, 21, and 25 were violative of section 8(a)(1), in that the
evidence which could be garnered from that questioning would be of so little
probative value as not to warrant the risk of infringing upon employee rights.
The foregoing language can be applied with equal force to the questions which I
have designated above, which inquired into the employee' s state of mind and the
answers to which would have no probative value at the hearing. I am therefore
constrained to find and conclude that in asking questions Nos. 7, 8, 9, 16, and 17,
Respondent's attorney exceeded the permissible limits of a pretrial interview and
thereby violated Section 8(a) (1) of the Act.
I also find objectionable question No. 5: "Who presented the card to you?" This
question would have relevance to the issues only if the employee answered question
No. 4 in the affirmative. Otherwise, it was an inquiry into the union activity of
another employee, which is clearly prohibited.
I have been considerably troubled by the fact that three of the questions which
were relevant to the issues in the hearing, viz, Nos. 2, 3, and 4, were leading and
suggestive. Such questions could reasonably: ( 1) suggest to the employee the
answer that the employer wants him to give; and/or (2) suggest that the facts stated
in the question may have occurred and thereby tend to condition his mind when
he testifies at the hearing.
While the use of such leading and suggestive question might be considered astute
investigative practice where private litigation is involved, it must be remembered
that the proceedings before the Board affect the public interest, and, as the Board and
the courts have held, the employer is limited in the procedures he may follow in
pretrial interviews. In most private litigation, neither party is in a position to exert
direct and powerful pressures on potential witnesses for the other party. However,
in Board proceedings such as this one, the employer has the power to discharge,
withhold promotion, or otherwise penalize potential or actual witnesses for the
General Counsel, and employers have discharged employees both for filing charges
and for giving testimony. Employee knowledge that such power exists and can be
exercised is unavoidable. Consequently, the employee whose livelihood may depend
on his pleasing his employer may be more amenable to the suggestions of his employ-
er's counsel than an independent witness in private litigation would be. Thus the
use of such questions interferes with the employee's rights guaranteed by Section 7
of the Act in that by their suggestive nature, they may affect the testimony which
the employee will give if called as a witness at the hearing and thereby "has a
tendency to deprive employees of vindication by the Board of their statutory rights."
(Winn-Dixie Stores, Inc., and Winn-Dixie Greenville, Inc., 128 NLRB 574, 579.)
Cf Alterman Transport Lines, Inc., 127 NLRB 803, 804; Sunshine Art Studios, Inc.,
152 NLRB 565.
Moreover, the use of these questions suggests that the purpose of the interrogation
was not preparation for trial in the sense that Respondent was trying to find out
what various employees knew of, and might testify as to, the matters in issue. For,
if Respondent were genuinely interested in determining the circumstances under
which each card was signed, such information could have been secured by the use
of questions which did not suggest the answer that Respondent desired, such as:
"What, if anything, were you told when you were asked to sign?" Or, "What, if any-
thing, were you told as to what the purpose of the card was9" Instead, the interroga-
tion appears to have been a conscious attempt to compromise witnesses who might be
called by the General Counsel, by laying the basis for a future impeachment through
the use of cleverly contrived leading questions. In these questions, the choice of
language was that of Respondent's attorney, and it is clear from the record that a
substantial number of the employees interviewed did not fully comprehend the pre-
cise thrust of the questions . Thus, many of the employees testified that they were
either unaware of the word "merely" in question No. 4, or did not understand its
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
significance. And it is perhaps significant that the employees were not given the
questionnaire to read, but were asked the questions orally, for in reading a question
a person can concentrate more readily on each word, whereas when the question is
put orally this is not feasible.
So far as I can determine the question whether the use of leading and suggestive
questions in a pretrial interview violates Section 8(a)(1) of the Act is one of first
impression. And I recognize that it may be difficult to police pretrial interviews to
determine whether attempts to influence the testimony of employees were made.
Indeed, it is conceivable that there may be other methods to influence an
employee's statement given in a pretrial interview. But this should not deter us
from holding violative of the Act a pretrial interview where it is plain that
leading and suggestive questions were used . For the reasons discussed above, I
am compelled to find and conclude that by the use of questions Nos. 2, 3, and
4, Respondent violated Section 8(a)(1) of the Act.
d. Surveillance
The allegation of Respondent's surveillance of the union meeting at the roadside
park on June 23, is not supported by evidence and should be dismissed. Plant
Manager Grantham's conduct in riding by the meeting place was for a legitimate
purpose and not for the purpose of surveillance. Similarly, his presence at the
Kent Motel Restaurant when a union meeting was being held in the private dining
room was not shown to be for the purpose of surveillance . I am satisfied that
Grantham and his wife were in the restaurant for the purpose of having dinner
there. Accordingly, the complaint should be dismissed as to this allegation also.
2. As to the discharges of Taylor, Streeter, and Leasure
a. Lula Taylor
Taylor was employed by the Respondent on February 22, 1963, and worked as a
feller until her discharge on June 30, 1964. She was discharged without warning
on Tuesday, although the pay period ended on Friday, July 4.
Taylor was one of the most active union proponents. During the weekend follow-
ing the first union meeting she telephoned between 25 and 40 employees to explain
the benefits of having a union. Respondent was aware of her union membership
and activity. On June 1 she signed up eight employees before work started, while
Supervisor Curtis was watching. She was a member of the organizing committee
and as such signed the telegram of June 1.
Taylor was consistently the highest producer among the fellers, except for the
last pay period when her production was exceeded slightly by Hughes (Meeks).
Thus, Respondent's records for the fellers for the pay periods beginning March 9,
show the following:
Taylor 3°---------- 71 96 71 74 71 89 72 82
Hughes ----------- 51 62 64 68 69 69 67 84
Swan------------- 39 47 50 47 52 53 52 61
Norrell--- --------- 48 58 34 56 61 58 51
She had less repairs than the other operators, received special assignments to do
difficult work that others could not perform, and helped other operators. She was
complimented on her production by Supervisors Jackie Grantham, Curtis, and Riley.
The last occasion was 2 or 3 weeks before her discharge, when she was commended
by Supervisor Curtis.39 After Taylor's discharge, the remaining fellers worked
overtime for 2 weeks, working 1 hour extra each day and on Saturdays until dinner.
3s In its cross-examination of Taylor, Respondent made a misleading attempt to show
that for the payroll period of June 1 to 13, Taylor's makeup (difference between actual
production and hourly wage) was $45.34, far in excess of that of Norrell whose makeup
was only $16 94. However, as is evidenced by Respondent's own records, Taylor worked
in excess of 85 hours during that period, while Norrell worked only 23 hours Thus, on
an hourly average, Taylor's makeup was only 53 cents as against 73 cents for Norrell.
31 The uncontradicted testimony of Taylor
HAMBURG SHIRT CORPORATION 529
When Plant Manager Grantham testified at the outset of the hearing, he testified
that Taylor was discharged because of "low production." 40 After the General
Counsel had proved that Taylor was the highest producer among the fellers and
produced substantially more than the fellers who were not discharged, Grantham
again took the stand and ascribed additional reasons for Taylor's discharge, viz, that
Taylor had told people in the community that Grantham was going out socially
with girls who had had their red marks removed; that while others had improved
continually, Taylor had not; and that Taylor had told him that the production quota
could never be made.
The record is convincing that the reasons advanced by Grantham toward the end
of the hearing were purely afterthoughts. Thus Grantham testified that Locke had
told him in May that Taylor had accused him of going with the girls. Yet Grantham
did not discharge Taylor until June 30. Manifestly, if this were a basis for Taylor's
discharge, Grantham would have reacted with righteous indignation and would have
discharged her at once. Apparently, then, Grantham did not consider it "of suffi-
cient importance to warrant a discharge at the time ... [it] occurred" (N.L.R.B. v.
Greensboro Coca Cola Bottling Company, 180 F. 2d 840, 843 (C.A. 4)).
The second reason advanced, viz, that Taylor was not improving, is not supported
by Respondent's records. Thus, for the pay period beginning May 18, her production
exceeded her prior average, then dropped to approximately her average for the next
pay period, and again rose in her last pay period.41 Moreover, the fact remains
that until the last pay period she was still the highest producer among the fellers.
Nor did the other fellers, with the exception of Hughes, show any significant or
steady improvement, and clearly were far below Taylor in production.42 The last
reason advanced by Grantham fares no better. Taylor's statement that the produc-
tion quota could never be made appears to be substantiated not only by Respondent's
action in reducing the quota after Taylor left, but it is also supported by Grantham's
admission in his speech of June 5 that some of the quotas were too high and would
be restudied and by the statement of Supervisor Riley that she did not think she
could do any better than the fellers were doing.43 It is thus apparent that none of
the reasons advanced by Plant Manager Grantham for Taylor's discharge was the
true reason. Rather, I am convinced that each of these reasons is purely a pretext
for a discriminatory discharge. Taylor was a known union adherent, and her dis-
charge during a pay period and at a time when it was necessary for the other fellers
to work overtime in order to make up for the loss of Taylor's production demonstrates
quite clearly that her discharge was because of her union membership and activity,
and I so find.
b. Betty J. Streeter
Streeter began her employment with the Respondent on March 29, 1963, and for
approximately a year before her discharge on June 30, 1964, worked on top-stitching
cuffs. Like Taylor, she was discharged during a pay period. Like Taylor, Streeter
was an active union adherent, a fact which was known to Respondent. On two
occasions, both within a week before she was fired, she spoke in favor of the Union
to other employees. On the second occasion, a day or so before she was fired,
Supervisor Rankin was present.44 Unlike Taylor, however, Streeter was not a fast
operator. When the red mark system was in effect, she had received one red mark.
Respondent's stated reason for Streeter's discharge is low production, and Plant
Manager Grantham sought to justify her discharge by comparing her production
40 In an attempt to support Grantham's testimony, Respondent brought out the fact
that, when Taylor reapplied for employment and filled out Respondent's application form,
she put down as the reason for her previous discharge "low production." I do not con-
sider this as an admission that her production was low. This was the reason given to
her by Plant Manager Grantham when he discharged her, and an employee reapplying
for a job could have no real expectancy of being rehired if she put down a different reason
for her discharge, as for example, that she had been discharged for union activity.
41 In view of the foregoing I do not attach any significance to the fact that Taylor was
afraid she would be fired in April, at a time when the red mark system was in effect,
for failing to improve her production.
4a As the General Counsel aptly suggests, this reason is analogous to the manager of a
baseball team benching a player because, although he was the team's leading hitter, he
was not improving his batting average.
4s The rncontradicted testimony of Hughes.
44 Nesbitt, Plant Manager Grantham's cousin, was present on both occasions.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with that of the other employees doing this work, Watt and Hale 45 However, an
analysis of Respondent's records offered in support of this comparison shows that
Streeter's production compares favorably with that of the other employees. Thus,
for the last five pay periods preceding her discharge, Streeter's production averaged:
60, 65, 62, 62, and 62.46 During the same period, Watt's production averaged 55,
58, 64, 57, and 45. Thus, Streeter's production exceeded that of Watt for four out
of five pay periods.47 Nor was Watt's subsequent production record significantly
higher, averaging: 60, 60, 64, 54, 62, 76, 67, 79, and 67, despite the fact that on or
about September 15, 1964, the top stitching quota was lowered from 200 to 175
dozen per day. An analysis of Hale's production shows that although in her last
five pay periods she achieved production of 77, 84, 89, 95, and 78, these figures are
based upon the reduced production quota of 175 dozen, whereas Streeter's produc-
tion is based upon a quota of 200 dozen48
Obviously, Streeter was not an outstanding operator, as was Taylor. Neverthe-
less, her production compared favorably with that of Watt, the other operator who
top stitched cuffs. Certainly it was not so poor as to warrant her precipitate dis-
charge in the middle of a payroll period. On the other hand, Streeter had made
known in Supervisor Rankin's presence her union adherence 2 or 3 days before the
discharge. Considering all of the foregoing, I find and conclude that the reason as-
signed by Respondent for Streeteer's discharge was merely a pretext and that the
true reason for her discharge was her known union adherence. By such action,
Respondent violated Section 8 (a) (3) of the Act.
c. Carrie Leasure
Leasure, the third employee discharged without warning on June 30, allegedly for
low production, had worked for the Respondent for 13 months, most of the time
on yoking. She had signed a union card and had talked to several employees about
joining the Union. On June 8, at the courthouse meeting, she signed a withdrawal
card after Locke had spoken about the fact that two other plants had closed because
of the advent of a union.49 Thereafter, she apparently had a change of heart and
spoke to employees, including Clyda Faye Brown, a pronounced antiunion employee,
about union benefits and told them about her husband's favorable experience as a
union member.
Leasure was an average, though careful, producer.50 She had received one red
mark when the red mark system was in effect.-51 However, there is ample evidence
that Leasure was handicapped by working with inferior equipment and that Respond-
ent failed and refused to remedy this situation. Thus, the uncontradicted evidence
is that Leasure was doing yoking work on a pocket-setting machine. Furthermore,
the machines of Christine Riley and Skinner, the other yokers, were equipped with
a cutting attachment and yoking table and bar which Leasure's machine did not have.
Thus, instead of putting the shirts under the bar on a yoking table and flipping them
over as she finished them, Leasure had to put them on the back of a chair and keep
one knee on the chair to prevent it from toppling over. On some occasions, the
chair did fall over and she would have to pick up the shirts and restack them. After
each bundle, Leasure had to take time to cut the threads which joined all the shirts
in the bundle, and then shake the bundle and straighten each shirt individually.
16 As in the case of Taylor, Respondent brought out the fact that Streeter in applying
for reemployment after her discharge had stated on her application that the reason for
her discharge was low production. For reasons previously stated, I do not consider
this to be admission on her part that she was, in fact, discharged for low production.
1e The figures represent cents per hour earnings.
17 It may be noted that Watt did not commence working for the Respondent until
September 30, 1963, some 7 months after Streeter. This, however, is not significant, as
Watt's training period had ended long before the periods used for comparison purposes.
18 Hale was put on top-stitching cuffs after Streeter's discharge. However, the produc-
tion figures cited above were achieved after her training period had ended.
"The record does not show that Respondent was aware of the fact that she had signed
a withdrawal card.
60 She testified without contradiction that since moving into the new plant (approxi-
mately 7 weeks before her discharge) she had only six shirts returned to her for repairs.
m She had originally worked as a pocket setter, but was transferred to yoking because
she did not do well as a pocket setter.
HAMBURG SHIRT CORPORATION 531
Because their machines were equipped with a cutting attachment and yoking table
and bar, Riley and Skinner did not have to take time to perform these extra opera-
tions. Leasure testified that the added work cost her an hour or more per day.52
Leasure admittedly made several requests for a yoking table and bar and was told
by both Grantham and Supervisor Riley that they would try to get her one "when
we got around to it." The last time she asked for one was 1 week before her
discharge.
It is quite apparent that Respondent was well aware of the handicap under which
Leasure was operating and tolerated her comparatively low production for an
extended period. Consequently, it is astonishing that Respondent should suddenly
find her production so unsatisfactory as to warrant a discharge without warning in
the middle of the pay period, at the same time when it discharged two other known
union adherents.53 In view of all the foregoing, I find and conclude that low pro-
duction was not the real reason for Leasure's sudden discharge. Rather, I am con-
vinced that the reason assigned was merely a pretext and Leasure was, in fact, dis-
charged because of her adherence to, and activity on behalf of, the Union, in
violation of Section 8 (a) (3) of the Act.
3. As to the discharges of Cotton, Biggs, and Jackson
In his speech of July 16, Bernstein told the employees that the prior terminations
were for the benefit of all the employees and that he was satisfied with the production
of everybody remaining and that they did not need to worry about their jobs.54
However, on August 27, Plant Manager Grantham made a speech to the employees
in which he said that there was agitation in the plant and that such agitation would
have to stop or the guilty persons would be fired. On August 28, despite Bernstein's
earlier assurance that he was satisfied with everybody's production, Respondent dis-
charged employees Cotton, Biggs, and Jackson, allegedly for low production.
a. Imogene Cotton
Cotton started to work for the Respondent on February 18, 1964, and was
employed as a trimmer. Her adherence to the Union was known to the Respondent
at the time of her discharge, as she was named in objections Nos. 4 and 12, filed by
the Union to the conduct of the election. Also, when she and Margie Rowe inter-
viewed Bernstein in the office the day before the election, Cotton indicated to
Bernstein that she had had some pleasant experiences working in a union shop.
Plant Manager Grantham testified that she was discharged because of low produc-
tion. The record does not substantiate this reason. While admittedly she was pro-
ducing less than trimmers Bozeman, Pennington, and Rowe, an analysis of Respond-
ent's records demonstrates that she produced more than trimmers Foster and
Williamson. The comparison of Cotton's production with that of Foster and
Williamson for the pay periods beginning May 4, until Cotton's discharge is as
follows:
Cotton ------------ 72 59 79 87 80 82 80 72
Williamson------_ 50 46 76 67 63 61 66 62
Foster------------- 67 58 78 s0 77 76 71 69
Although Cotton's production exceeded that of Williamson and Foster, the latter
were not discharged. I find and conclude that low production was not the real
reason for Cotton's discharge, but was merely a pretext. Cotton was discharged
52 Supervisor Riley testified that Leasure lost a very few minutes a day because of the
additional operation. I am of the opinion that Leasure was more qualified to testify as
to the amount of time lost, and I credit her version. Supervisor Riley also testified that
she put Leasure on Christine Riley's machine one day and that Leasure told her she
thought she could do better on her own. However, Supervisor Riley admitted that it
takes about 2 or 3 days to get used to a yoking machine with a bar on it.
55 As in the case of Taylor and Streeter, Respondent brought out the fact that Leasure
in applying for reemployment after her discharge had stated that the reason for her dis-
charge was low production For the reasons previously stated, I do not consider this
to be an admission on her part that she was, in fact, discharged for low production.
'4 The credited testimony of Dodd, Cotton, Merlene Swan, and Biggs.
217-919-66-vol. 15 6-3 5
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of her adherence to the Union. Even though the election had already been
held and the Union had been defeated, the fact is that on August 19, the Regional
Director had recommended that the election be set aside and a new election be
directed. Respondent was therefore faced with the possibility of another election
and a resurgence of union activity. In this posture, by discharging Cotton, it rid
itself of another union adherent. Respondent thereby violated Section 8(a)(3) of
the Act, and I so find.
b. Gay Nell Biggs
Biggs began to work for the Respondent in September 1963, and was employed
as a presser. She was a known union adherent. On or about July 3, she had told
Supervisor Howell that she was on the organizing committee and was working to
organize the plant. In addition, she was referred to in objection No. 9 filed by
the Union to the conduct of the election.
As in the case of the other dischargees, Plant Manager Grantham testified that
Biggs was discharged because of low production. Biggs was an average producer,
but the record indicates that a presser's production could be affected by differences
in the material of the shirts and the sizes of the shirts which a supervisor distributed
to the various pressers. Thus, Biggs testified without contradiction that the medium-
sized shirts are the easiest to work on, and the small and large sizes are harder to do
and take longer. Supervisor Howell favored Denton who outproduced Biggs, and
Carter whose production, after the end of her training period, was far below that of
Biggs. Also, Supervisor Howell assisted Carter by buttoning shirts for her, number-
ing collar strips, and pressing for her.55 It is significant that both Carter and
Denton in their interview with Bernstein had expressed their appreciation to him for
their jobs,56 and therefore could be consideied as loyal employees.
It is apparent that if production were the criterion for discharge, Carter, rather
than Biggs, would have been discharged. For the last three pay periods (after
Carter's training period had ended) Biggs far outproduced Carter:
Carter
Hfl
82
60
Biggs -----------------------
Nor was Biggs' production significantly different from that of Carpenter who was
also retained.57 While Biggs' production was not high, it was not low compared
to that of Carter and did not warrant a precipitate discharge. I am convinced that
her discharge, like that of Cotton was motivated by her union adherence, in viola-
tion of Section 8(a)(3) of the Act, and I so find.
c. Dianne Jackson
Jackson, whose performance records are carried by the Respondent under her
maiden name of Glennon, was employed by the Respondent in March 1963 as a
cuff closer. She was a member of the Union, and on the day of the election was
seen by Bernstein in the company of the Union's organizing committee, National
Representative Hebner, and Union Officials Cohen and Metker 58
While Jackson was one of the slower producers among the four cuff closers,59 the
record shows that within 3 weeks before her discharge, she had been complimented
es The credited and uncontradicted testimony of Thornhill
51 The credited and uncontradicted testimony of Thornhill
c The comparison of Biggs' production with that of Carpenter for the pay periods be-
ginning May 4 is as follows -
Biggs ----------------------- 97 100 106 95 95 85 82
88
Carpenter-__-_ _ 92 96 97 94 92 88 87 95
58 The credited testimony of Jackson, Miller, and Holland
°Plant Manager Grantham testified that on one occasion (date not specified) he had
told Jackson that she had entirely too much makeup work and that if she could not bring
it down she would be discharged However, Jackson testified in rebuttal that the only
time Grantham spoke to her alone was in the summer of 1903, when on the previwns day
he had talked to the cuff closers as a group about improving, their production Jackson
had been absent that day, and Grantham spoke to her on the following day when she
returned to work
HAMBURG SHIRT CORPORATION 533
by Supervisor Riley who later told Miller that she thought that Jackson was going
to be a good cuff closer. Also, about a week before the discharge, when Jackson
spoke to Supervisor Riley about a possible layoff, Supervisor Riley assured her that
she did more shirts than Vlrgie Bussell, and if she was going to lay off anybody
it would be Bussell.60
As is apparent from the Respondent's production records, Supervisor Riley was
apparently mistaken in believing that Jackson's production was significantly greater
than that of Bussell. An analysis of Respondent's production records for the pay
periods since May 4 indicates that the two employees were producing approximately
the same amount:
Average
Jackson. ------- 60 76 78 69 70 85 83 83 7538
Bussell.-------- 78 62 61 72 76 85 88 79 7538
It is also apparent from the foregoing analysis that Jackson was earning an average
of 70 cents an hour when Bernstein made his speech on July 8, assuring the employ-
ees that everybody was making satisfactory progress. For the next three pay periods
she produced an average of 83 cents, a substantial increase. One may well ask:
If a rate of 70 cents an hour was satisfactory in July, why did a rate of 83 cents
an hour suddenly become unacceptable 6 weeks later?
If the reason assigned for the discharge of Jackson were a shortage of work
necessitating the layoff of one of the four cuff closers, Respondent might be able to
justify retaining Bussell over Jackson , as the production of both of these employees
was approximately the same . However , this was not the reason assigned for dis-
charging Jackson ; rather it was Jackson 's low production . Since Jackson 's produc-
tion was slightly greater than that of Bussell , it is apparent that low production was
not the real reason for the discharge. Considering the fact that Jackson was dis-
charged in the middle of a pay period at the same time as Cotton and Biggs, two
active union adherents, I am compelled to conclude that it was her union member-
ship that was the real reason for her discharge, and I so find. Accordingly,
Respondent violated Section 8(a)(3) by discharging Jackson.
4. As to the layoff of Williams
Williams was employed as a sleever and began to work for the Respondent on
February 20, 1963. She worked last on August 21, 1964 , when she was taken ill
with pneumonia . She returned to work on September 21, and was told by Plant
Manager Grantham that she had been laid off.61
Next to Taylor, Williams was the most active union adherent . She had invited
employees to come to the first union organizing committee meeting at the roadside
park on May 29. In addition , she distributed union cards and secured approximately
10 signatures . Respondent was aware of her adherence to the Union . Her name
appeared on the union telegram of June 1 (and a subsequent one sent September 2)
as a member of the union organizing committee . In addition , during the interview
with Bernstein just prior to the election, when Williams complained about the folding
attachment on her machine , she told him that the maladjusted folding attachment
affected her production and would probably be used by Respondent as an excuse to
fire her because of union activity.
Plant Manager Grantham testified that : Williams' employment was terminated
because she operated a surging machine, and that the use of Burgers had been dis-
continued . Toward the end of the hearing, Grantham testified that he intended to
recall Williams "when I find something that I figure she can do , which will have to
be a straight needle machine."
66 The uncontradicted testimony of Jackson , corroborated by Miller
61 There is a suggestion in Respondent 's cross-examination of Williams that the doctor's
statement which she presented to Grantham when she sought to return to work on Sep-
tember 21, was not in accordance with Respondent's rules, because it was not written on
the doctor's letterhead. However, Grantham admitted later that this had nothing to
do with his failure to reinstate her
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Williams was hired, the sleeving operations was performed on a surging
machine. Later, Respondent gradually eliminated the surging machines and replaced
them with folding machines.62 While operating a surging machine, Williams was
the fastest operator.63 Eventually, Williams was placed on a folding machine.
However, she had difficulty in obtaining production because the folding attachment
was not properly adjusted. Williams complained about the folding attachment, and
Bernstein stated that he would have the machine fixed even if it were necessary to
procure special help from Little Rock. However, nothing was done. Because of
the condition of the folding machine, Williams divided her time between the folding
machine and the surging machine. After Williams' layoff, Jeffers, who worked on
Williams' folding machine, also had difficulty because of the maladjusted folding
attachment. Curtis, Respondent's mechanic, took the folding attachment off and
worked on it. It was finally adjusted.64
Williams reapplied for a job on October 7, but was not hired, despite the fact
that since her layoff, Respondent has hired many employees for various sewing jobs
including four on sleeving.65 As previously noted, Grantham testified that he
intended to reinstate Williams "when I find something that I figure she can do,
which will have to be a straight needle machine." I find no basis in the record for
the precondition stated by Grantham. In view of her high production on a surger
and Respondent's failure to adjust the folding attachment when she operated a folding
machine, there is no showing that Williams was incapable of operating other types
of sewing machines. Also, Bardin, a sleever who had been laid off on September 18,
was recalled on October 27, without requiring her to reapply, although Williams
admittedly had outproduced Bardin.66
Respondent argues that its failure to recall Williams before Bardin cannot be
ascribed to Williams' union activity. It points to the fact that Bardin was also a
member of the Union, a fact known to Respondent when it recalled Bardin, by
virtue of the fact that Bardin's name had been mentioned in charges filed against
the Respondent. Respondent also states in its brief that, since the hearing, Williams
has been recalled to operate a surger and argues that if her layoff and Respondent's
failure to recall her sooner were due to her union activity, Respondent would not
have recalled her at all. The argument is fallacious. First, it compares only the
recall of Bardin and Williams, and ignores the fact that in the interim Respondent
had hired new employees as sleevers and to operate other sewing machines. Second,
the facts underlying the argument are equally capable of supporting the conclusion
that Respondent may have decreed a longer layoff for Williams who was one of
the most active union workers, while Bardin's union activity was limited to signing
a card.
In sum , I find and conclude that the Respondent's layoff of Williams and its
failure to recall her while hiring other employees was discriminatorily motivated
in violation of Section 8 (a) (3) of the Act.
5. As to Respondent's refusal to recognize the Union
a. The Union's majority
As previously noted , by June 5, when it made its demand for recognition, the
Union had signed up 92 out of a total of 123 production and maintenance employees
52 The surging machine, attaches the sleeves to the body of the shirt in the same manner
as sleeves on men's jackets are sewed on to the coat, whereas a folding machine makes
2 parallel rows of stitches . Both machines are double -needle machines ; on a surger, one
needle is behind the other, while on a folding machine they are side by side. The fold-
ing machine has an attachment called a folder which is bolted onto the machine and
guides both pieces of the material to the needles , whereas on the surger, the operator puts
both pieces of the material together manually and then sews them together.
83 The credited testimony of Williams, corroborated by Hughes and Hammil.
64 The credited testimony of Marcell Norrell, after Plant Manager Grantham testified
evasively that if there were any repairs performed on the machine, he did not know
about it.
85 Indeed, two new employees started to work on the very day that Williams was laid off.
66 Grantham stated that he called Bardin back in preference to Williams because the
latter had too much absenteeism . Although Grantham told Williams that he would recall
her after Bardin, he said nothing to her about absenteeism.
HAMBURG SHIRT CORPORATION 535
in the appropriate unit.67 Respondent , however, contends that a majority of the
employees did not designate the Union as its bargaining representative because a
great number of those who signed the union cards did so on the basis of misrepre-
sentations as to the purpose and the effect of the cards , and consequently such cards
were not valid designations . Before analyzing the testimony in this regard, it should
be recalled that the card had a twofold purpose: ( 1) it was an application for mem-
bership in the Union , and (2 ) it appointed the Union to represent and negotiate for
the signer in all matters pertaining to wages, hours , and other conditions of employ-
ment. As to the first purpose of the card , Respondent points to the fact that a
number of employees testified that they were told that the card did obligate them
to the Union . However, even though the cards was not valid as an application for
membership , its validity as a designation of the Union as bargaining representative
was not affected thereby. Greenfield Components Corporation, 135 NLRB 479, 490,
enfd. 317 F. 2d 85 (C.A. 1); Continental Oil Company v. N.L.R.B., 113 F. 2d
473, 480 (C.A. 10). Thus the Supreme Court pointed out in Ford Motor Company
v. Huffman, 345 U.S. 330, 338:
A bargaining representative , under the National Labor Relations Act, as
amended, often is a labor organization but it is not essential that it be such.
The employees represented often are members of the labor organization which
represents them at the bargaining table, but it is not essential that they be such.
With regard to the second stated purpose of the card , viz, the designation of the
Union as bargaining representative , the Board in several recent cases has made it
clear that the representation of a union official or soliciting employee that the card
was for the purpose of securing an election , does not invalidate the designation of
the Union as the bargaining representative , unless the representation relied on by
the signer was to the effect that this was the only purpose of the card. Cumberland
Shoe Corporation, 144 NLRB 1268, amended by unpublished order dated January 13,
1964, S.N.C. Manufacturing Co., Inc., 147 NLRB 809, enfd sub nom. International
Union of Electricians, Radio and Machine Workers, AFL-CIO v. N.L.R. B., 352
F. 2d 361 (C A.D.C.); Gotham Shoe Manufacturing Co., Inc., 149 NLRB 862;
Boot-Ster Manufacturing Company, Inc., 149 NLRB 933.
In evaluating the testimony of employees regarding any alleged misrepresenta-
tions made to them , I have considered the testimony of each witness as a whole.
Since most of the witnesses appeared to be unsophisticated in semantics , I do not
consider as reliable the affirmative answers which they gave in response to leading
and suggestive questions propounded by Respondent 's counsel, where such answers
appear to be in conflict with the rest of their testimony . Thus, after testifying to
what they had been told as to the purpose of the card (e g., to get an election), the
witnesses were then asked by Respondent's counsel: "Were you told that this was
the only purpose of the card?" Many replied in the affirmative. Yet it is clear
from their subsequent interrogation by counsel for the General Counsel that what
they meant was that what they had testified to was all that they had been told, and
that the person who had solicited them to sign did not affirmatively tell them that
this was the only purpose of the card. I believe that the truth is best revealed by
that portion of the testimony in which each witness stated in her own words what
she was told when she was asked to sign the union card.ss For the same reason, I
e7 The appropriate unit as set forth in the stipulation for certification upon consent
election consists of: all production and maintenance employees , excluding office clerical
employees , professional employees , guards, and supervisors as defined in the Act.
In determining the number of employees in this unit , I have excluded employee Fair-
child who signed a union card but was terminated on June 2 before the Union made its
demand for recognition . Also excluded are Supervisors Rankin , Curtis , Howell , Jackie
Grantham , and Riley , Walter Rayburn who is a guard within the meaning of the Act,
and office employees Betty Hobbs and Lowry.
a° In this connection , I note the Board ' s recent statement in Cumberland Shoe Corpo-
ration, 144 NLRB 1268 , footnote 3, added by unpublished order issued January 13, 1964,
amending the Board 's Decision and Order
The record indicates that the testimony to this effect consisted of affirmative re-
sponses by the signatories to leading questions propounded by Respondent 's counsel,
upon cross -examination , as to whether they were told that the purpose of the cards
was to secure an election . We do not deem such testimony sufficient to controvert
the statement of the purpose and effect of such cards contained on the face thereof,
nor do we consider it inconsistent with an 'understanding that the cards serve the
dual purpose of designating a representative and of securing an election.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
give no weight to what might otherwise be impeachment consisting of conflicting
answers given to Attorney Sutton's questionnaire during the pretrial interviews.
In particular, the employees interviewed were asked:
4. Were you told that the card was merely for the purpose of getting a chance
to vote on the union? [Emphasis supplied.]
Most of those interviewed answered in the affirmative. Yet when they testified, it
became clear that they did not understand the significance of "merely" in the
question.
I find that 68 employees signed union cards without any misrepresentation made
to them concerning the purpose and effect of the card as a designation of representa-
tives. Thus, 16 employees: Banks, Golden, Hagood, Harville, Holland, Merlene
Swan, Joyce Pennington, Dodd, Rial, Taylor, Thornhill, Williams, Hughes, Christine
Carpenter, Johnson, and Bellott, were present at the initial meeting of the organizing
committee on May 29 at the roadside park when National Representative Hebner read
the card to them and had the employees, themselves, read the card, and told them
that the card could be used for several purposes: (1) to get an election, (2) to
negotiate a contract, and (3) as a card check.69
The following 16 employees were told that the card was for membership in the
Union or to get a Union in the plant, or were asked to sign if they were interested
in a union or in forming a union: Blocker. Cotton, Charlotte Cunningham
(Rowe),70 Frisby (Watt), Margie Rowe, Eubanks, Gifford, Gulledge, Hayden,
Hollis, Hopkins, Leasure, Wilson, Pilgrim, Stewart Farmer, and Molly Bozeman.71
Accordingly, their cards should be considered valid designations.
The following were told that the purpose of the card was to get a card check:
Lena Carpenter, Laverne Swan, and Louise Swan. Their cards are, therefore, valid
designations of the Union as their bargaining representative.
The following 22 employees were told nothing about the purpose of the card by
the person who solicited their signatures: Alexander (Green), Bardin, Biggs, Nora
Bozeman, Rebecca Brown, Donald Cunningham, Doss, Ellis, Guthrie, Hale (William-
son), Jackson, McLeod, McManus, Martin, Barbara Ann Miller, Sue Miller, Mallie
Norrell, Marceil Norrell, Barbara J. Pennington, Slocum, Stell, and Streeter. I
therefore, find and conclude that no misrepresentation was made to them.
w The credited testimony of Hebner who impressed me as a responsible, honest union
official His testimony was corroborated by Banks, Beliott, Holland, Joyce Pennington,
Thornhill, and Taylor.
Harville testified that she was present at the first union meeting at which Hebner told
her ",that it was to get an election and that's all." In view of the abundant credible
testimony that Hebner fully explained the purposes of the cards at this meeting, I do
not credit Harville's limited version.
Johnson testified that she received her card from Hebner who told her that the pur-
pose of the card "was to show that I was interested in hearing what the Union had to
offer," and that Hebner told her that this was the only purpose of the card. It is not
clear from her testimony where Hebner's solicitation occurred. Presumably it was at
the original organizing meeting held on May 29, as there is no evidence in the record
that Hebner solicited any employee individually. If Hebner's solicitation of Johnson
occurred at the organizing meeting, then Johnson's testimony cannot be credited, as it is
in conflict with the greater weight of the credible evidence that Hebner fully explained
the purposes of the card to those present. In any event, Hebner impressed me as being
a straightforward person. Thus, according to Johnson, at the general union meeting at
Crossett on June 5, he candidly told the employees that while they could not get their cards
back, they could sign a card to kill the effects of the first one. It is also significant that
although Johnson testified that she first heard of a card check at the meeting in Crossett,
she did not indicate to Hebner that she did not sign for that purpose and that she there-
fore wanted to withdraw her designation, as did Kilerease In sum, I find and conclude
that there was no misrepresentation made to Johnson.
40 In some instances, an employee as single when she signed the card, and used her
married name when she testified. The name in parentheses is the maiden name which
she used when she signed the card.
'n Molly Bozeman's testimony was somewhat vague The gist of it, however, is that
Golden told her "that the girls that were interested in a union for Hamburg Shirt Fac-
tory-should sign the card and a representative would be sent down there if enough cards
were received." She also testified that she read the card before she signed it. Farmer's
testimony is somewhat similar. On the whole, I am satisfied that there were no mis-
representations made to either Molly Bozeman or Farmer and their cards should be con-
sidered valid designations of the Union as bargaining representative.
HAMBURG SHIRT CORPORATION 537
The next group of employees to be considered consists of those who were told by
the solicitor that the purpose of the cards was to get an election.
Barrett testified that Taylor presented the card to her and told her it was to find
out if there were enough people interested in having an election. She was then
asked whether she was told anything else about the card, and answered that she did
not think so, except that it did not obligate her in any way. She was then asked;
Q. Were you told that the card didn't have any other purpose, other than
getting an election call?
A. Yes.
However, on cross-examination she testified that she read the card before she
signed. Then ensued the following colloquy:
Q. Did she tell you the card didn't mean what was printed on it?
A. Well, she said that it didn't mean that you were joining the Union.
Later she was asked:
Q. Did Mrs. Taylor say the only reason that you are signing this card was
for the purpose that she said?
A. I don't think she used the words, "the only reason."
Based upon all of Barrett's testimony I find and conclude that Taylor did not
.represent to her that the only purpose of the card was to get an election.
Bonds testified that Harville gave her a card and told her that the purpose of the
card was to get an election. Bonds testified that she read the card, took it home,
and read it several times. Bonds admitted that when she was interviewed by
Attorney Sutton shortly before the hearing she was asked: "Were you told that the
card was merely for the purpose of getting a chance to get an election called?" and
that she answered, "Yes, I don't know whether I would have signed the card if this
statement had not been made to me." However, she testified that she did not
remember the word "merely" in the question. Bonds also testified that she refused
to sign the questionnaire. Based on all of the foregoing, I find and conclude that
Bonds was not told that the only purpose of the card was to get an election.
Burns testified that Taylor told her that the purpose of the card was to get an
election, but that Taylor did not use the word "only." She testified further that she
read the card before she signed it. I therefore find and conclude that there was no
misrepresentation to her.
Hammil testified that Taylor told her that the purpose of the card was to get an
election, but that she did not think that Taylor told her that this was the only purpose
of the card. I find and conclude that no misrepresentation was involved.
Kelley testified that Holland told her that if 51 percent of the employees signed
cards, they could bring it to a vote. She testified further that that was all that she
was told and that she did not remember Holland's saying that the card had no
other purpose or that it did not mean what it said. I find and conclude that no
misrepresentation was made to Kelley.
Julia Woods testified that Holland told her that they had to get a certain number
of cards signed before they could have an election. She was not told that the card
had no other purpose. I find and conclude that her card was not procured by
misrepresentation.
Consistent with the Board's holdings cited above, I find and conclude that the
cards of Barrett, Bonds, Burns, Hammil, Kelley, and Julia Woods were valid desig-
nations of the Union as the signers' bargaining representative.
The following persons did not testify with any specificity as to the identity of the
person who made any alleged representation to them concerning the purpose of
the card:
Fox testified that she did not remember who presented the card to her but
believed it was Banks and that the alleged representation, viz, that the purpose of
the card was to get more information about getting a union down in the shirt
factory, was a statement made in the course of a general discussion of a group of
people standing around her machine.
Jeffers testified that she did not remember who presented the card to her, but
that she was told it was "an interest to find out more about the Union." She testified
further that she read the card before she signed it and that nobody told her that
the writing on the card did not mean what it said.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coulter testified that there were several employees handing out cards and several
asked her to sign, that she did not remember who gave her the card or who talked
to her about the purpose of the card. She testified further that she was told that
there had to be a certain majority signed in order for the Union to send a repre-
sentative to explain the Union to the employees. She testified that that was the
only purpose that was stated to her, but she did not remember whether the word
"only" was used.
Virgie Bussell testified that she did not remember who gave her the card, that
she was told that "it was to see if we could have a union in our building, if we
were interested, and we would have meetings later on to see what the Union could
give us and that we weren't obligated in any way, that we would have an election
if we had enough cards signed."
Rushing testified that she was told the purpose of the card was to have a chance
to vote for or against the Union, that she did not remember who presented the card
to her, and did not recall that she was told that this was the only purpose. She
testified further that she read the card before she signed it.
The defense of misrepresentation is not established by testimony which fails to
identify the person making the alleged misrepresentation. Nor is it established by
proof of statements of employees, other than the person soliciting the signature to
the card, made in the course of an informal discussion regarding the cards. In
the foregoing group, the testimony is either that the employee signing the card
could not identify the person making the alleged misrepresentation or that she got
the impression from a general conversation of a group of employees. Accordingly,
I find and conclude that the defense of misrepresentation is not established as to
the cards of employees Fox, Jeffers, Coulter, Virgie Bussell, and Rushing, and such
cards must properly be counted as designating the Union as bargaining representative.
We now come to a group of employees who testified that the person who solicited
their signatures told them that the purpose of the card was one of the following:
(a) to have someone come down to talk about the Union; (b) only for the purpose
of having an election; (c) to show she was interested in hearing what the Union
had to offer; and (d) to go to a union meeting and hear more about the Union.
In this group are 23 employees: Bennett, Caine, Courson, Judkins, Ladd, Paskell,
Bobbie Pennington, Marcile Pilgrim, Pollack, Pullin, Ridgell, Riley, Sparkman,
Tucker, Don Woods, Clyda Faye Brown, Winnie Bussell, Tommy Carpenter,72 Cecil,
Chadwick, Clark, Coleman, and Coody. The above purposes are so limited in nature
as to negate the concept that the signer was designating the Union as its bargaining
representative. Accordingly, I find and conclude that the cards signed by the above-
named persons should not be counted as designations of the Union.
Nor have I counted as a valid designation for the Union the card signed by
Kilcrease. She testified that Johnson asked her to sign the card and "that it would
show that I was interested in the Union, that if I was interested in it to sign the
union card." However, at the general union meeting at Crossett on June 8, when
National Representative Hebner was discussing a card check, Kilcrease openly
stated that she did not sign the card for that purpose. This occurred after the Union
had made a demand for recognition and Plant Manager Grantham had committed
the unfair labor practice discussed above. It is quite possible that Kilcrease's action
may have been influenced thereby. However, inasmuch as a majority of the employ-
ees had validly designated the Union as its bargaining representative, I need not
decide whether Kilcrease's card should be considered as a valid union designation.
In view of all the foregoing I find and conclude that 68 out of a total of 123
maintenance and production employees in the appropriate unit validly designated
the Union as its bargaining representative and that on June 8, when Respondent
received the Union's request to bargain, the Union represented a majority of the
employees in the appropriate unit.
b. As to Respondent's good-faith doubt of the Union's majority
Respondent contends that it had a good-faith doubt as to the Union's majority
because a number of employees had come to Plant Manager Grantham and told
him that they had signed the union cards on the basis of misrepresentations as to
the effect and purpose of the cards, while other employees had told him that they
had signed the cards because they had been informed that if they did not sign,
72Although Carpenter did not testify to any alleged misrepresentation, he testified
that he returned his card to National Representative Hebner and told him that he was
not signing as a member , but to get an election.
HAMBURG SHIRT CORPORATION 539
they would be deprived of their jobs. On the basis of the record, I must reject this
contention . As previously noted, the only employee Grantham identified as com-
plaining to him was Marcile Pilgrim, who told him that she signed because she
feared she would otherwise lose her job. Only two other employees, Ladd and
Coody, testified that they had told Grantham that they would like to get their cards
back. Furthermore, Bernstein testified that he knew nothing of the meeting at the
courthouse on June 8 until he came to Hamburg on June 15.73 There is no evidence
that Respondent attempted to determine whether there were any misrepresentations
made to the employees as to the purpose and effect of the cards until Attorney
Sutton interviewed the employees approximately 2 weeks before the hearing. It
therefore appears that Respondent's claim that it had a good-faith doubt as to the
majority because of the alleged misrepresentations is an afterthought. Moreover,
it is clear from the record that Respondent utilized the time intervening between
the Union's request for recognition and the election to dissipate the Union's majority
by the unfair labor practices detailed above, which were patently calculated to
accomplish that purpose. Accordingly, I find and conclude that the Respondent
did not entertain a good-faith doubt as to the Union's majority when it refused to
recognize the Union and thereby violated Section 8(a)(5) and (1) of the Act.
6. As to the objections to the election
In his report on objections, the Regional Director recommended that objections
Nos. 1, 2, 7, and 8 filed by the Union be overruled, that objection No. 13 be sustained,
and that the election be set aside and a new election be directed. In the event that
the foregoing recommendation was not adopted, he recommended further that a
hearing be held to resolve the issues raised by objections Nos. 3, 4, 5, 6, 9, 10, 11,
and 12. The objections referred to me for decision are as follows:
3. On or about June 30, 1964, the Employer terminated the employment of
Lula Taylor, Carrie N. Leasure and Betty Joe Streeter because of their mem-
bership in and activities on behalf of the Amalgamated.
4. On or about July 16, 1964, the employer's President, I. J. Bernstein and
Plant Manager, Robert Grantham, unlawfully interrogated employees Ima Jean
Cotton and Marjorie Rowe with respect to their sympathies in the forthcoming
election.
5. On or about July 16, 1964, the employer's President I. J. Bernstein
threatened employee Elvie Thornhill and a group of other employees with
plant removal and stated that he would refuse to bargain with the Amalgamated
in the event that they should win the election.
6. On or about July 15, 1964, the employer, by its Supervisor Margaret Riley,
inquired of employee Rebecca Brown when she would prefer to have her vaca-
tion. Prior to this time the employees were not definitely informed that they
would be granted a vacation.
9. On or about July 11, 1964, Howard Scroggins, a farmer and member of
the local Chamber of Commerce, told Allen Biggs and his wife that the employ-
er's plant would close if the Amalgamated won the election.
10. On or about July 15, 1964, Cearey Wilcox, a member of the Chamber of
Commerce told employee Lydia Steel that the employer would close its plant
if the Amalgamated won the election.
11. On or about July 15, 1964, Bruce Smith, a member of the Local Chamber
of Commerce told employee Leone Bardin that the employer would close the
plant if the Amalgamated won the election.
12. On or about July 10, 1964, Hudson Rogers, a member of the local
Chamber of Commerce stated to employee Ima Jean Cotton that the plant would
move if the Amalgamated won the election.
13. On July 16, 1964, an advertisement was placed in the Ashley County
Leader, the substance of which threaten the employees with plant removal in
the event that the Amalgamated was successful in the election.74
78 It does not appear from the record that Respondent ever saw the withdrawal slips or
was advised who signed them at the courthouse meeting.
74 It is noted that the spelling of some of the names in the foregoing objections is in-
correct. The correct spellings are used in my findings , supra. Thus , an objection No. 10
the name "Cearey Wilcox" is obviously a reference to Searcey Wilcoxon , Jr, and "Lydia
Steel" should be Lydia Stell.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Objections Nos. 4, 6, and 9 are not supported by a preponderance of the evidence
and should therefore be overruled . Objection No. 5 contains two allegations. As
to the allegation that Bernstein threatened employee Thornhill and a group of other
employees with plant removal , although there is no evidence that Bernstein directly
threatened these employees with plant removal, I have heretofore found that he
was specifically asked about the threats of the businessmen that the plant would
close and did not repudiate such threats . To that extent the objection should be
sustained . As to the second part of objection No. 5, that Bernstein stated he would
refuse to bargain with the Amalgamated in the event that they should win the election,
while I have credited Thornhill's version of her conversation with Bernstein, I do
not find that the effect of his statement was that he would refuse to bargain with
the Amalgamated . The findings that I have heretofore made fully support objec-
tions Nos . 3, 10, 11 , 12, and 13. These objections are meritorious and should be
sustained . In view of the foregoing , I find and conclude that during the critical
preelection period Respondent engaged in a course of conduct which interfered with
the employees ' freedom of choice in the selection of a bargaining representative.
The election should therefore be set aside.
I have heretofore found that the Union represented a majority of the employees
in the appropriate unit when it made its request for bargaining and that the Respond-
ent did not entertain a good-faith doubt as to the Union 's majority , but engaged in
extensive and flagrant violations of Section 8(a)(1) and ( 3) of the Act for the
purpose of undermining the majority status. Accordingly, instead of recommending
that a new election be held , I shall recommend that the Respondent be ordered to
bargain with the Union . Bernel Foam Products Co., Inc., 146 NLRB 1277; S.N.C.
Manufacturing Co., Inc., 147 NLRB 809, enfd. sub nom. International Union of
Electricians, Radio and Machine Workers, AFL-CIO V. N.L.R.B., 352 F. 2d 361
(C.A.D.C.); The Colson Corporation v. N.L.R.B., supra.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Hamburg Shirt Corporation set forth in section IV, above, occur-
ring in connection with the operations of Respondent set forth in section I, above,
have a close , intimate, and a substantial relation to trade, traffic , and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
VI. THE REMEDY
Having found that the unfair labor practices affected the results of the Board-
conducted election held on July 17, and that there is merit to some of the objections
to conduct affecting result of election , I shall recommend that the election be set
aside.
Since I have found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1), (3 ), and (5 ) of the Act , I shall recommend
that it cease and desist therefrom and that it take certain affirmative action designed
to effectuate the policies of the Act.
Having found that Respondent discharged Lula Taylor , Carrie N. Leasure, Betty
Jean Streeter, Gay Nell Biggs , Imogene Cotton , and Dianne Jackson, and laid off
Lois Williams because of their membership and/or activity on behalf of the Union,
I shall recommend that, if it has not already done so, the Respondent be required
to offer them immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other rights , dismissing,
if necessary , any employees hired after their discharge or layoff. Respondent should
also be required to make them whole for any loss of earnings they may have suf-
fered because of the discrimination against them , with backpay computed in the
customary manner.75 I shall further recommend that the Board order the Respond-
ent to preserve and on request , make available to the Board or its agents, payroll
and other records to facilitate the computation of the backpay due and the right of
employment.
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act , I shall recommend
that it cease and desist from infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
75F. W. Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co., 138
NLRB 716.
HAMBURG SHIRT CORPORATION 541
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I recommend that the Respondent, Hamburg Shirt Corporation,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Amalgamated Clothing Workers of America,
AFL-CIO, or in any other labor organization of its employees, by discharging, lay-
ing off, or in any other manner discriminating against employees in regard to hire
and tenure of employment or any term or condition of employment.
(b) Threatening to go out of business or to curtail expansion if a majority of the
employees select Amalgamated Clothing Workers of America, AFL-CIO, or any
other labor organization of its employees, to represent them.
(c) Promising and/or unilaterally granting benefits in violation of Section 8(a) (1)
of the Act.
(d) Interrogating employees concerning their or other employees' membership
in, or activities on behalf of, Amalgamated Clothing Workers of America, AFL-CIO,
or any other labor organization of its employees, in a manner constituting inter-
ference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist any -labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all such activities.
(f) Refusing, upon request, to bargain collectively with Amalgamated Clothing
Workers of America, AFL-CIO, as the exclusive representative of all employees in
the following appropriate unit:
All production and maintenance employees at the Respondent's Hamburg, Arkan-
sas, plant, excluding office clerical employees, professional employees, guards, and
supervisors as defined in the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer to Lula Taylor, Carrie N. Leasure, Betty Jean Streeter, Gay Nell Biggs,
Imogene Cotton, Dianne Jackson, and Lois Williams immediate and full reinstate-
ment to their former or substantially equivalent positions (if Respondent has not
already done so), without prejudice to their seniority or other rights and privileges,
dismissing, if necessary, any employees hired subsequent to their discharge or
layoff, and make them whole for any loss they may have suffered as a result of the
Respondent's discrimination against them in a manner set forth in the section of
the Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the deter-
mination of the amount of backpay due.
(c) Notify any of the above-named employees presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the Armed Forces.
(d) Upon request, baigain collectively with Amalgamated Clothing Workers of
America, AFL-CIO, as the exclusive representative of the employees in the appro-
priate unit with respect to rates of pay, wages, hours of employment, and other condi-
tions of employment, and, if an understanding is reached, embody such understanding
in a signed agreement.
(e) Post at its Hamburg, Arkansas, plant copies of the attached notice marked
"Appendix." 76 Copies of such notice, to be furnished by the Regional Director for
Region 26, shall, after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
70 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "a Recommended Order of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice shall be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order"
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken by the Respondent to insure that said notices are
not altered , defaced, or covered by any other material.
(f) Notify the Regional Director, in writing, within 20 days from the date of the
receipt of this Decision , what steps Respondent has taken to comply herewith.77
I further recommend that the election held July 17, 1964, in Case No. 26-RC-
2203, be set aside.
77 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 26, in writing, within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Amalgamated Clothing Workers of
America, AFL-CIO, or in any other labor organization of our employees, by
discharging, laying off, or in any other manner discriminating against employ-
ees in regard to hire and tenure of employment or any term or condition of
employment.
WE WILL NOT threaten to go out of business or curtail expansion if a majority
of the employees select Amalgamated Clothing Workers of America, AFL-CIO,
or any other labor organization of our employees, to represent them.
WE WILL NOT promise and/or unilaterally grant benefits in violation of Sec-
tion 8 (a) (1) of the Act.
WE WILL NOT interrogate employees concerning their or other employees'
membership in, or activities on behalf of, Amalgamated Clothing Workers of
America, AFL-CIO, or any other labor organization of our employees, in a
manner constituting interference, restraint, or coercion within the meaning of
Section 8(a) (1) of the Act.
WE WILL NOT refuse, upon request, to bargain collectively with Amalgamated
Clothing Workers of America, AFL-CIO, as the exclusive representative of all
employees in the following appropriate unit:
All production and maintenance employees at our Hamburg, Arkansas,
plant, excluding all office clerical employees, professional employees, guards,
and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist any labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from
any and all such activities.
WE WILL offer to Lula Taylor, Carrie N. Leasure, Betty Jean Streeter, Gay
Nell Biggs, Imogene Cotton, Dianne Jackson, and Lois Williams immediate and
full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, dismissing, if necessary,
any employees hired subsequent to their discharge or layoff, and make them
whole for any loss they may have suffered as a result of our discrimination
against them.
WE WILL, upon request, bargain collectively with Amalgamaeted Clothing
Workers of America, AFL-CIO, as the exclusive representative of the employ-
ees in the appropriate unit with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named Union or any other labor organization.
HAMBURG SHIRT CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
CAL-SAMPLE PRINTERS, INC. 543
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service and the Universal Military Training
and Service Act, as amended , after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis , Tennessee, Telephone
No. 534-3161.
Cal-Sample Printers , Inc. and Offset Workers, Printing Pressmen
& Assistants Union #78 of Los Angeles & Vicinity, affiliated
with The International Printing Pressmen & Assistants Union
of North America, AFL-CIO; Bookbinders' & Bindery Wom-
en's Union Local #63, affiliated with The International Broth-
erhood of Bookbinders , AFL-CIO; Los Angeles Typographical
Union #174, affiliated with The International Typographical
Union, AFL-CIO, Joint Petitioners. Case No. 31-RC-17 (for-
merly f1-RC-9600). December 30,1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Barton W. Robertson. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Briefs have been filed by the Employer and by the Joint Petitioners.
Pursuant to Section 3(b) of the National Labor Relations Act, as
amended, the NationalLabor Relations Board has delegated its powers
in connection with this case to a three-member panel [Chairman
McCulloch and Members Fanning and Jenkins].
Upon the entire record in this case, the' Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The Employer takes the position that the only appropriate unit
is a production and maintenance unit of both Cal-Sample Printers,
Inc., and Cal-Sample Service, Inc. The Joint Petitioners, however,
contend that a departmental unit of all pressmen, compositors, and
cutters in the printshop is also an appropriate one.
156 NLRB No. 48.