Liberty Sportswear Corp.

National Labor Relations Board - Board DecisionsFeb 2, 1973

201 N.L.R.B. 590 (N.L.R.B. 1973)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Liberty Sportswear Corp . and International Ladies' Garment Workers' Union, AFL-CIO. Case 9-CA--6889 February 2, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On October 19, 1972, Administrative Law Judge Arnold Ordman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Liberty Sportswear Corp., Liberty, Kentucky, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A 3). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE ARNOLD ORDMAN, Administrative Law Judge: This case was tried in Liberty, Kentucky, on August 8, 1972, on a complaint issued by General Counsel on May 2, 1972, pursuant to a charge filed by the Union on March 15, 1972. The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by threats of reprisal directed to employees because of their union activities, and by discharging and refusing to reinstate employee Myrtle Woods because of her union membership, sympathy, and activity. Respon- dent denies that it engaged in unfair labor practices. Upon the entire record and upon my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent, a Kentucky corporation manufactures and sells ladies' garments at its plant in Liberty, Kentucky. Its interstate inflow and outflow of products, respectively, exceed $50,000 in value. Respondent is admittedly an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint and answer also establish that the Union, the Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The litigation in this case apses out of events allegedly occurring, for the most part, in September and October 1971 in the course of a long-continued effort to organize Respondent's employees. An earlier phase of this effort, occurring in 1968, is detailed in a Board decision, captioned "Liberty Sportswear Co., Inc., Case 9-CA-5193" and reported at 193 NLRB No. 127 (1970), in which Respondent was found to have engaged in certain unfair labor practices in the course of its opposition to the unionization effort.' The principal management representatives alleged to have engaged in the unfair labor practices asserted in the instant case are David Kimbler, plant manager, and Jewel Wilhelm, a floorlady. Both are admittedly supervisors and agents of Respondent. David Kimbler was also involved in the events recounted in the earlier proceeding and testified in that proceeding. The principal employee involved in the instant case is Myrtle Woods, alleged to have been discriminatorily discharged on October 21, 1971. B. The Evidence Relating To Threats The complaint alleges that David Kimbler in late September or early October 1971 threatened an employee with discharge because the employee had engaged in union activity, and that Kimbler had also, on several occasions during late September or early October 1971, threatened an employee that the plant would close if the employees selected the Union as their bargaining representative. In the same tenor the complaint further alleges that Jewel Wilhelm, on or about October 1, 1971, threatened an employee with reprisal if she continued to support the Union. The evidence in support of these allegations derives largely from the testimony of Myrtle Woods, testimony which is sharply controverted in critical respects. Certain preliminary matters are undisputed, however. Thus, it appears that Woods was hired by David Kimbler in 1967 and worked for Respondent until October 21, 1971, when her employment with Respondent ended. Woods' fob was that of inspector, I of over 50 persons in that classification, all of whom worked under the immediate supervision of floorlady, Jewel Wilhelm. The job duties of an inspector were to examine all garments brought to the inspector's I Certain other unfair labor practice allegations made in that proceeding were dismissed 201 NLRB No. 96 LIBERTY SPORTSWEAR CORP. 591 worktable to see that the work was done properly, to trim all loose threads, to insert a ticket number with each garment, usually in the pocket, to show who had done the inspection, and to put together the garments which passed inspection in bundles of a dozen garments each so that they could be taken from the inspection department to the shipping department. The normal work schedule for inspectors was a 5-day workweek and an 8-hour workday. The minimum wage for inspectors was $1.60 an hour but it was expected that inspectors would earn $16 per day. The actual wage paid inspectors was computed on the basis of a fixed price per dozen garments, the price varying with the type of garment, so that the amount any given inspector earned could be more or less than the guaranteed minimum wage. If the inspector earned more than the minimum wage guarantee, the inspector received the extra pay. There was conflict in the testimony as to what happened when the employee earned less than the guaranteed minimum on any given day. Myrtle Woods testified that in such circumstances the inspector was required to work overtime. Kimbler testified that overtime work was not mandatory but conceded that employees who failed to make the minimum were "asked" to work overtime.2 Resolution of this conflict, largely a matter of emphasis, is not required for purposes of this case. Woods testified that she first became involved in organizational activities on behalf of the Union in 1969. From that time on she distributed union authorization cards and solicited union support among her fellow employees. Her estimate was that during this period she distributed 35 to 40 authorization cards, a number of them in the period shortly before her termination, to employees and that about 20 of these cards were signed. Employees Hazel Harness, Wendell Brown, and Betty Corn testified that Woods had solicited their signatures to authorization cards. Woods named Joyce Taylor, also known as Wanda Taylor, as another employee whose support she had solicited. According to Woods, her solicitation of Taylor took place early in October about 3 weeks before Woods' employment ended. During the morning work break Woods approached Taylor at the latter's worktable and handed her a union authorization card for signature. Taylor signed the card and returned it to Woods. Thereupon Jewel Wilhelm immediately confronted Woods and said to her, "I told you. You're going to keep handing out cards and you won't have no work to work." Woods said she responded, "Don't you want to sign a card?" .3 Wilhelm denied making the statement attributed to her. She further denied ever talking to Woods about the Union and disclaimed any knowledge that Woods was handing out union cards. Wilhelm further specifically denied that anyone in her department, which numbered about 75 to 80 employees including inspectors, was working for the Union. On cross-examination, however, Wilhelm conceded knowledge that the Union had been trying, at least since 1969, to organize the plant. 2 On cross-examination Kimbler testified that Respondent 's overall production target was a thousand dozen garments per day and that on days when this goal was not achieved during the regular working day, Respondent would "ask" but not require particular girls to work overtime. Kimbler said this request would be directed to "the better production girls" Plant Manager Kimbler likewise denied any knowledge that Woods was soliciting support for the Union . Kimbler testified also that he never discussed the Union with Woods and that he never threatened Woods or anyone else with reprisals for engaging in union activity . Kimbler also professed failure to recall the decision in the earlier Board proceeding against Respondent or that notices were to be posted as a result of that proceeding. In view of the long-continued organizational campaign, the prior litigation involving that campaign, Kimbler's involvement in that proceeding as a key representative of management and as a witness, and Wilhelm's grudging admission that she knew that the Union had been trying to organize the plant at the least since 1969 , I cannot credit their professions of ignorance in these respects . I find that Woods actively solicited union support among her fellow employees in the plant, that Wilhelm and Kimbler were aware of these union activities and that Wilhelm did tell Woods on the occasion of the Taylor card incident that there would be no work for Woods if she kept handing out cards. As to Kimbler, Woods testified that he came to her table in September 1971, about a month before the termination of her employment, and informed her that the plant would close before he would work under a union. Woods testified further that Kimbler regularly assembled the employees on the inspection line and made statements to them that he would move out before he would work under a union. According to Woods, Kimbler went through this procedure about every 2 weeks going back to 1969. As already indicated, Kimbler made a blanket denial that he made antiunion statements to Woods or to anyone else at the plant. For reasons already indicated , Kimbler's sweeping denials in this regard are suspect . I believe and find that Kimbler did tell Woods that he would close the plant before he would work under a union . More troublesome is the evidentiary support for the assertion that Kimbler regularly assembled the employees on the inspection line to inform them that he would move out before he would work under a union . Because other inspectors would obviously have been present on these occasions and because several of these inspectors did testify, it would appear probable that they would offer corroborative testimony in this regard . They did not. In these circumstances I find that Woods' unsupported testimony is insufficient to meet the burden imposed upon General Counsel to establish that Kimbler regularly threatened the employees on the inspection line that Respondent would move or close the plant before it yielded to unionization. C. The Evidence Relating to the Termination of Woods' Employment The complaint alleges that on or about October 21, 1971, Respondent terminated Woods' employment and thereaft- er denied her reinstatement and that Respondent took and that Myrtle Woods was in this category 3 Taylor was not a witness in this proceeding . According to Wilhelm, Taylor had married , left Respondent's employ, and moved to another community. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these actions because of Woods' union membership, sympathy, and activity and in order to discourage membership in the Union. Respondent pleads in the alternative: (1) that it did not discharge Woods on October 21, 1971, but that she voluntarily quit on that day; and (2) that it did discharge Woods on October 21, 1971, but not for antiunion reasons. Respondent contends, in essence , that shortly prior to October 21, 1971, it discovered that Woods was falsifying her work tickets to show increased production and increased earnings; that, on October 21, Respondent presented Woods with proof of this falsification and gave her the option of quitting or being discharged; and that Woods elected to quit. General Counsel argues that the alleged falsification was merely a pretext and that the real reason for the termination of Woods' employment was her union activity as alleged in the complaint. The burden of proof in these circumstances is upon General Counsel to establish that Respondent was aware of Woods' union activities, that Respondent was hostile to these activities, and that this hostility motivated, i.e., was the real reason for, the discharge. As already indicated, Woods' activities in distributing union authorization cards and soliciting union support among her fellow employees in the plant were widespread and were known to Respondent. Respondent' s expressions of hostility to Woods' activities in this regard have also been described. In addition to the events already mentioned, one other item of evidence warrants note here. Hazel Harness, who had worked for Respondent in the summer of 1970 as an inspector at a work station immediately behind that of Myrtle Woods, testified that in August of that year she saw David Kimbler approach Woods and heard Kimbler ask Woods to come to his office to talk about the Union .4 Myrtle Woods, recalled to the witness stand, confirmed that this incident had occurred and testified further that Kimbler told her in the office interview which followed that she would have to stop passing out cards or there would be no more work and "the plant would close down." On cross-examination Woods acknowledged that she had not mentioned this incident in a prehearing affidavit which she had furnished to a Board investigator. Kimbler denied that the incident had occurred. I do not regard the omission in the affidavit as critical. On this controverted matter I credit the testimony of Hazel Harness and Myrtle Woods. I find that Kimbler was aware of, and manifested his displeasure with, Woods' union activity on this occasion. However, Respondent asserts that the reason for Woods' termination was her falsification of her production figures and not her union activities. Nevertheless, evidence was adduced relating to Woods' work performance generally. Woods characterized herself as an average production worker. Plant Manager Kimbler, on the other hand, testified that Woods was one of his "better production girls." According to Woods, Kimbler did make a comment to her about her work in September 1971. Prefacing his remark with the statement, "We want to do you a favor," Kimbler told Woods that her work had been checked the previous evening and that she had not been attaching her identifying number to the garments she had been checking. Woods challenged this assertion and, since the garments in question had not yet been removed , showed Kimbler that her identifying number was in the garments . Kimbler then interjected , "I didn't say I didn 't believe you," to which Woods replied , "Well, what are you jumping on me for? On account of me working union ." Kimbler made no reference to this incident and Woods' statement in this regard stands uncontradicted . I credit it. A more significant incident occurred involving a collar incorrectly sewn on a garment . According to Woods' best recollection this incident also occurred in September 1971 although Respondent placed it a few months earlier. Woods testified that she was told by her floorlady, Jewel Wilhelm , that Kimbler wanted to see her . Wilhelm escorted Woods to Kimbler's office and Kimbler told Woods, in Wilhelm 's presence , that Woods had "passed" a dress which had a collar sewed on upside down. Woods said she did not believe it. Kimbler told Woods her identifying number was in the pocket of the dress . Kimbler found two numbers in the dress only one of which was hers . Woods testified that Wilhelm then said to Kimbler that such an error "would be very easy to pass up when you lay those dresses down, how the collar stands up." Woods then said , "Mr. Kimbler, you know I know what this is all about. On account of me working union." Kimbler replied , according to Woods , "You run ahead. Just don't even tell none of the other girls about the dress or about the union." Kimbler and Wilhelm both testified as to this incident. Kimbler confirmed that he had directed Wilhelm to bung Woods to his office . He identified a warning slip dated "6-22-71" issued to Myrtle Woods and bearing the notation that it was a first offense and denominating the offense as "poor quality ." Kimbler testified that this warning slip related to the collar in question . Kimbler testified that Woods refused to sign the warning slip. He denied that the subject of union was mentioned during the interview. Wilhelm testified that she brought Woods to Kimbler's office and that a warning slip was issued . On cross- examination Wilhelm admitted making a comment to the effect that an incorrectly sewn collar could have been overlooked and stated that Kimbler may have agreed with her in that regard . Wilhelm could also recall that Woods said she (Woods) knew what it was all about . But Wilhelm could not recall mention of the Union. Appraising the testimony of all three participants in this matter , I am satisfied that the incident occurred as Woods 4 Respondent objected to the introduction of any evidence as to this incident on the ground that it predated by more than 6 months the filing and service of the unfair labor practice charge in the instant case and, hence, was inadmissible under Sec 10(b) of the Act An earlier objection to the introduction of such evidence was sustained insofar as the evidence was offered to show prior unfair labor practices However, such evidence is admissible, where its sole purpose is "to shed light on the true character of matters occurring within the limitations period" Local Lodge No 1424, International Association of Machinists (Bryan Manufacturing Cal v NLRB, 362 U.S 411, 416 ( 1960). Here the objection was overruled and the evidence admitted for the limited purpose of shedding light on the character of Woods' termination which took place on October 21, 1971, within the limitations period LIBERTY SPORTSWEAR CORP. 593 testified and as Kimbler and Wilhelm largely corroborated. I find further that Woods did state her belief that her alleged dereliction was raised because of her union activity and that Kimbler dismissed her with the admonition not to tell the other girls about the dress or about the Union.5 Woods' termination occurred on Thursday morning, October 21. The testimony of Woods and Kimbler is in accord that on the preceding Monday Woods reported to Kimbler that her husband was sick and that she was excused from work. Woods did not work that Monday or the following 2 days and reported back to work on Thursday morning. Very shortly after her arrival she was summoned to a conference in Kimbler's office, was accused of "cheating" on her production cards, and her employment was terminated. The daily production cards were the basis on which the employees' wage earnings were determined. Under the procedure then applicable, a bundle boy would pick up the completed bundles from under each inspector's worktable during the course of the working day. The bundle boy would then punch on the particular inspector's production cards a number of holes corresponding to the number of bundles (dozens) he picked up from under her worktable. At the end of each working day Respondent's supervisor would collect the inspectors' production cards and turn them over to the payroll office. The number of bundles times the rate per bundle inspected would determine the amount of wages earned. Three different punchers were used in Respondent's operations. Russell Murphy, the bundle boy principally involved here, testified that he kept one puncher on his person during his working day. The other two punchers were kept in an open drawer in Floorlady Jewel Wilhelm's desk. One of the punchers had shorter jaws so that it was necessary on occasion to fold the production cards to punch the appropriate holes. Russell Murphy testified that the puncher he was using at the time relevant here was dull and was later sharpened. Respondent adduced testimony, however, that all three punchers punched identical holes. Turning now to the events critical here Kimbler testified that some time prior to October 21 he was informed by Jewel Wilhelm that there was a discrepancy between the number of holes punched in Woods' production cards and the amount of work she had done. Kimbler immediately called in Russell Murphy, a bundle boy, and directed that, starting immediately Murphy alone was to pick up the bundles Woods had inspected, punch the appropriate number of holes in Woods' card, and keep a separate record on a piece of paper indicating how many bundles he had picked up.6 At the office conference to which Woods was summoned on October 21, Kimbler was present, Russell Murphy was present, and several of Respondent's supervisors including Jewel Wilhelm were present. Except for Murphy, Woods was the only rank-and-file employee there. It is undisputed that Kimbler at the outset of the conference accused Woods of cheating the Company by putting extra holes in her production cards and, notwithstanding Woods' vehe- ment denials, told Woods that her job with Respondent was at an end. In the course of the conference Kimbler showed Woods two of her production cards dated, respectively, "10-13-1971 and 10-15-1971" (Wednesday and Friday of the preceding week) and told her she had falsified those cards. Kimbler pointed specifically to four holes in the latter card which he had marked off in ink on the face of the card as holes made by Woods. Kimbler, whose testimony in this regard was corroborated by Russell Murphy, told Woods that Murphy's notations, made at Kimbler's direction, showed that Murphy had picked up only 18 bundles from Woods on October 15 and punched only 18 holes in Woods' card but that Woods' card showed 22 holes. Kimbler also sent Murphy out to get the other punchers and used them to punch additional holes on the cards for purposes of comparison. Kimbler rejected Woods' repeated protests that she had not made any of the holes, that she had inspected all the bundles indicated, and that Kimbler knew that on some days she had done even a greater amount of work. According to Kimbler, he then told Woods she had the option of quitting or being discharged forthwith and that Woods elected to quit so as to protect her record if she sought another job. Kimbler testified that he then escorted Woods to the personnel office where a termination slip was prepared indicating that Woods had violated a company rule and had voluntarily quit. Woods admitted signing this slip but said she had not read it because she was told her employment was terminated in any event. Kimbler testified that the termination slip was not read to Woods nor its contents discussed with her. Woods' testimony as to the conference was in general accord with that of Kimbler. Woods denied, however, that Kimbler made any mention of quitting and said that Kimbler insisted only that her employment was at an end. Woods testified also that she told Kimbler during the conference that she was being terminated because of her union work and that Kimbler replied, "We will walk out before we have a union." 5 Woods testified that the "upside down collar" incident was the only occasion prior to her termination when her work was adversely criticized. Respondent introduced countervailing evidence in the form of two warning slips issued to Myrtle Woods, dated respectively "I 1-14-68 and 12-9-68." The first slip carried the notation "excessive absenteeism" and the second "low production." Woods admitted that her signature appeared on the first slip but otherwise disclaimed knowledge or recollection of these matters. Nonetheless, it appears that both slips were issued in the regular course of Respondent's business and I so find. The legal significance of the issuance of these slips in the context of the present case is, however, quite another matter. Some evidence was introduced of a rule of Respondent that an employee could be discharged after three written warnings. But Wilhelm testified that she could recall no instance in which the rule was ever invoked. Both warning slips here were dated in 1968, three years before Woods' termination ; both, like the warning slip relating to the collar episode, were marked as first offenses; and Kimbler acknowledged that Woods was one of his "better production girls." Moreover, Respondent makes no contention that poor work performance was the reason for the termination but predicates that termination solely on Woods' alleged falsification of her production figures. 6 As this directive suggests , there was usually more than one employee performing the function of bundle boy and this was true during the period critical here . Generally, bundle boys were assigned to specific areas but occasionally , for one reason or another, there would be an overlap. The directive to Murphy was designed to guard against this contingency. The record also shows that at the time here involved Murphy was bundle boy not only for Myrtle Woods but for over 50 other inspectors. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jewel Wilhelm, Myrtle Russell, and Norman Luttrell, all supervisors, and Russell Murphy, the bundle boy, were present at the conference and testified as Respondent's witnesses . Each of them corroborated , generally, the testimony of Plant Manager Kimbler . Wilhelm , Russell, and Luttrell denied that the subject of union was mentioned. Based on all the testimony I find that the conference was essentially as Kimbler and Respondent 's witnesses de- scribed it and as Woods , who testified for General Counsel, substantially confirmed. Having been told virtu- ally at the outset of the conference that she was "cheating" the company and her job was over, Woods would obviously have been deeply disturbed and her recollection as to the succeeding colloquy could quite naturally be less than wholly accurate. Accordingly, I find on the basis of the relevant evidence that there was no mention of union at the October 21 conference. I find further that Kimbler did present Woods with the alternative of quitting or being discharged. Considerable testimony was also adduced with reference to the kind of holes which appeared in Woods' production cards and with special reference to the difference , if any, between the holes allegedly made by Woods and the other holes . The testimony was based merely on visual examina- tion . Woods testified she saw no difference. Respondent's witnesses , without exception , saw differences although their individual descriptions of the differences varied widely. The four holes marked by Kimbler as having been made by Woods were described as "smaller," "not smooth," and even as "jagged." The best evidence in this regard , as the parties agree, is the two cards to which reference has already been made and which were introduced into evidence.? The Adminis- trative Law Judge has made his own visual examination both from the front of the cards where Kimbler's markings are visible and from the back of the cards where such markings are not visible . Based on this examination I am satisfied that all the holes on the cards are not identical. However , the differences that do exist are not confined to the four holes which Kimbler marked as having been made by Woods. In sum , I find that, on the basis of the physical evidence , it cannot fairly be concluded that the four holes allegedly made by Woods were markedly different from other holes purportedly made by Murphy .8 D. Analysis and Concluding Findings As noted, General Counsel called attention at the outset of the instant hearing to a prior decision of the Board in which Respondent was found to have engaged in certain unfair labor practices in relation to an earlier phase of the current organizational campaign . David Kimbler, a key management representative, was centrally involved in the events in that case also . The decision in that case has been considered together with other evidence of record in the instant proceeding in connection with Respondent's disclaimer of knowledge of current organizational activity. On the other hand , the fact that Respondent was found to have committed unfair labor practices in 1968 is not probative evidence that it committed the unfair labor practices alleged here . As Respondent's counsel correctly contends , findings of such unfair labor practices must be based on evidence furnished in the present record. 1. The 8(a)(l) violation The complaint and answer in the present proceeding establish that Plant Manager David Kimbler and Floor- lady Jewel Wilhelm are supervisors and agents of Respon- dent acting in its behalf . It has been found herein that Jewel Wilhelm told Myrtle Woods on the occasion when the latter was soliciting her fellow -employee Wanda Taylor to support the Union that, if Woods kept handing out union authorization cards, she would not have any more work. It has also been found that David Kimbler told Woods that he would close the plant before he would work under a union . That these statements constituted threats calculated to discourage organizational activities in viola- tion of the guarantees of Section 7 is self -evident. I find that by these statements Respondent violated Section 8(a)(1) of the Act. 2. The 8(a)(3) violation The question whether the admitted termination of Woods' employment on October 21, 1971, constitutes an unfair labor practice is a more complex issue. It has already been found that Woods openly engaged in organizational activity in behalf of the Union and that Respondent was aware of, and hostile to, her activity in this regard. However , these findings alone are insufficient to establish that the termination of Woods' employment on October 21 was discriminatorily motivated. Union activity is not a shield against discharge for valid cause even where, as here , the employee involved is on Respondent's own evaluation among the better employees on his payroll. Preliminarily , it should be noted that Respondent pleads, in the alternative , that Woods was not discharged at all but voluntarily quit her employment. As already found herein, Kimbler told Woods at the October 21 conference that she 7 Respondent also offered into evidence a large number of other cards of Woods which it said it had examined and suggested that Woods made, or may have made, holes in these cards also No indication was given as to which of the holes were suspect No cards of other inspectors were submitted Under these circumstances it was felt that the additional cards of Woods would be of no probative value Accordingly, the offer of the additional cards was rejected and they were placed in the rejected exhibit file s General Counsel offered into evidence copies of a decision made by a referee in a case before the Kentucky Division of Unemployment Compensation ansing out of a claim by Woods against Respondent herein that she had been ternunated by Respondent Respondent, as here , opposed the claim on the ground that Woods had voluntarily quit and that she had falsified her production figures by making holes in her cards The referee found, inter alia, that Woods had engaged in substantial organizational activity, that she had not voluntarily quit but had been discharged, and that an "examination of the holes punched is inconclusive ." Woods' claim was upheld General Counsel, in offering the decision into evidence, stated that the referee's decision was a matter of public record but correctly conceded that that decision was not controlling in the instant case . At the hearing the Administrative Law Judge ruled against the admissibility of the decision and ordered that the decision be placed in the rejected exhibit file. Upon reconsideration , I am now of the view that the rejection of the exhibit was in error and that the referee 's decision should have been , and it is now, admitted into evidence. In the first place . the decision-its authenticity is not questioned-appears to be a public record which could be administra- tively or judicially noticed In the second place , the Board has held that such decisions, while not controlling in Board proceedings , do have probative value and are admissible . Mitchell Plastics, 117 NLRB 597 (1957), Cadillac Marine, It 5 NLRB 107 (1956) LIBERTY SPORTSWEAR CORP. had cheated the Company, that her employment was at an end, and that she had the option of quitting or being discharged forthwith. While the testimony as to Woods' response to this ultimatum is controverted, I find that Woods did agree to quit and her signature does appear on a termination slip so indicating. However, under all the circumstances, the option thus given Woods was at best a "Hobson's choice." I find that Woods did not "voluntari- ly" quit but that Kimbler dictated her termination. Respondent's alternative defense is that it did discharge Woods on October 21 but that the termination was not for antiunion reasons but because of her falsification of her production reports. Such falsification, if established, would be valid ground for discharge; indeed, if Respondent believed that Woods had engaged in such falsification, the discharge would have been justified whether or not the falsification had actually occurred. On the other hand, if Respondent, as General Counsel contends, merely seized upon the falsification, real or alleged, as a pretext to rid itself of an active union adherent to whose organizational efforts it was hostile, then a finding of unfair labor practice is warranted. Here Respondent's hostility to organizational activity among its employees generally and to Woods' efforts in this regard in particular is patent. Within a matter of a few weeks before her discharge Woods was twice summoned to Kimbler's office for asserted derelictions in her perform- ance. Respondent did not press either matter. In the first instance relating to Woods' supposed failure to put her identifying number in the garments she had inspected, Woods was able to establish that she had done so. In the second instance relating to the "upside down collar," Wilhelm herself noted, with Kimbler's apparent agreement, that the asserted offense was not serious. Woods was more hard put, however, when Kimbler, shortly thereafter and immediately upon Kimbler's return from an excused absence, confronted her with the charge that she had falsified her production figures a week or more earlier. Here, as often occurs in cases of this kind, direct evidence of illegal motivation for a discharge is not available. Respondent asserts that Wood had falsified her production figures and that this was the reason for its action. Unlike the earlier two situations, the garments in question were not available so that the accuracy or validity of Respondent's claim could be tested. In such circum- stances, as the Court of Appeals for the Ninth Circuit observed in Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (1966), a self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book .9 In the instant case, however, the record is not totally devoid of relevant evidence and Respondent's assertion of a lawful motive is less than convincing. Woods was, on Kimbler's own evaluation, one of his "better production girls." Under these circumstances Woods' insistent denials that she had actually done all the work indicated on the 9 A decision issued 16 years earlier by the Court of Appeals for the Fourth Circuit and frequently cited, Hartsell Mills Co v. N LR.B., l l 1 F.2d 291, 293 (1940), is in accord. There Chief Judge Parker had occasion to observe that "direct evidence of a purpose to violate the statute is rarely 595 questioned production cards and her assertion that Kimbler knew she had done even more work on occasion would appear to have warranted something more than total disregard . This would appear to be especially germane in view of Respondent's knowledge that on occasion more than one bundle boy picked up bundles from inspectors . Indeed , Kimbler's directive to Murphy that starting immediately Murphy alone was to pick up Woods' bundles and keep a record was indicative of Kimbler's knowledge that other bundle boys could and did perform this function . Kimbler and Wilhelm must also have been aware that Murphy performed the bundle boy function for a large number of inspectors-more than 50 according to Murphy-and that there was a possibility of error on his part . Moreover, Respondent was also aware that not one puncher , but three different punchers, were available for use by bundle boys or by supervisors. Under these circumstances it would appear that Woods ' emphatic denials of wrongdoing on her part would be entitled to something more than summary rejection or that a preliminary inquiry would have been made before Respon- dent peremptorily decided upon immediate dismissal of an admittedly good production employee . Further doubt as to the validity of Respondent 's asserted defense is the fact that it relied solely on Murphy 's report and the "discrepan- cy" in the punched holes as grounds for its action and utilized no other methods, such as a count of actual bundles, to verify whether Woods' production records were accurate. Instead, it was apparent from Kimbler 's own testimony that the determination had already been made in advance of the October 21 conference that Woods' employment was to be terminated and that the conference to which Kimbler summoned several of his supervisors and Russell Murphy was merely a staged performance to consummate the termination and, hopefully, to induce a "voluntary" quit. Contributing to this conclusion was the almost enthusiastic readiness of the invitees to the conference to confirm Kimbler's judgment that the four holes which he had marked on Woods' card were markedly different from the other holes on the cards. In the total context of the case I am satisfied that even if Respondent may have entertained some suspicion of wrongdoing on Woods' part this was not the real reason for the summary dismissal of Woods but rather that Respon- dent, as General Counsel contends, seized upon this circumstance as a plausible ground upon which to predicate the termination of a union adherent to whose activities it was avowedly hostile . I find that the real reason for Respondent 's termination of Woods was to rid itself of a union adherent and to discourage organizational activity as the complaint alleges . Accordingly , I find that Respon- dent by this action violated Section 8 (a)(3) and (1) of the Act. REMEDY In order to effectuate the policies of the Act, I find it necessary and appropriate to order Respondent to cease and desist from the unfair labor practices found and obtainable , and that where the finding of the Board is supported by circumstances from which the conclusion of discriminatory discharge may legitimately be drawn , it is binding...... 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of the character and scope of these violations (as well as the character and scope of violations previously found against this Respondent) from infringing in any manner upon the rights guaranteed employees in Section 7 of the Act. I further find it necessary and appropriate to order Respondent to reinstate Myrtle Woods with backpay, computed on a quarterly basis, plus interest at 6 percent per year, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Company, 138 NLRB 716 (1962), from the date of her termination to the date reinstatement is offered. Upon the foregoing findings of fact and conclusions of law, upon the enhire record, and pursuant to Section 10(c) of the Act, I recommend the following Order: 10 ORDER Respondent, Liberty Sportswear Corp., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees to deprive them of work or to close the plant because of organizational or union activity. (b) Discharging or otherwise discriminating against employees because of their activities in behalf of Interna- tional Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary and appropriate to effectuate the policies of the Act: (a) Offer Myrtle Woods immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges, and make her whole for her lost earnings in the manner set forth in the section of this Decision entitled "Remedy." (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of her right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its plant in Liberty, Kentucky, copies of the attached notice marked "Appendix."" Copies of the notice, on forms to be provided by the Regional Director for Region 9, after being duly signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof , and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 10 In the event no exceptions are filed as provided by Sec 102 .46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and the order herein shall, as provided in Sec 102 .48 of the Rules and Regulations , be adopted by the Board , and all objections thereto shall be deemed waived for all purposes. ii In the event the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees to deprive them of work or to close the plant because of their union or organizational activities. WE WILL NOT discharge or otherwise discriminate against employees because of their activities in support of International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with the right of employees to engage in self-organization or collective bargaining or to refrain from such activities. WE WILL offer to take back Myrtle Woods to her old job with backpay suffered as a result of the discrimina- tion against her. All our employees are free to belong to, or not to belong to, the above-named labor organization or any other labor organization. LIBERTY SPORTSWEAR CORP. (Employer) Dated By (Representative) (Title) Note: We will notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board 's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.