Medline Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1404 (N.L.R.B. 1975)

1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dynacor Plastics and Textiles Division of Medline
Industries, Inc. and Textile Workers Union of
America, AFL-CIO . Cases 25-CA-6218, 25-CA-
6218-2, 25-CA-5905, and 25-CA-5905-2
June 30, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On October 31, 1974, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief.
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, fmd-
ings,1 and conclusions of the Administrative Law
Judge to the extent consistent herewith.
1. On December 27, 1973, Respondent entered
into an informal settlement of alleged violations of
Section 8(a)(1) and (3) of the Act in Cases 25-CA-
5905 and 25-CA-5905-2. On May 23, 1974, the
Regional Director for Region 25 vacated and set
aside that settlement agreement on the grounds that
Respondent had subsequently interfered with the
rights of employees and discriminated against some
of them in violation of Section 8(a)(1) and (3) of the
Act in the period from January through April 1974,
prior to and following the Board-conducted repre-
sentation election of March 7, 1974. The presettle-
ment cases were reactivated and consolidated with
the postsettlement cases (25-CA-6218 and 25-CA-
6218-2), and the Regional Director issued a consoli-
dated complaint in all four cases.
In his Decision, the Administrative Law Judge
found that Respondent committed various violations
of the Act by its conduct after December 27, 1973,
and that the Regional Director was justified in
setting aside the informal settlement agreement of
that date. Although we do not adopt all these
findings of violations, we agree, on the basis of the
findings we do adopt, that the Regional Director was
justified in setting aside the settlement agreement.
2. The Administrative Law Judge found that
Respondent's grant of an unscheduled holiday on
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
218 NLRB No. 216
Friday, November 23, 1973, the day after Thanksgiv-
mg, was an unlawful grant of benefits, in violation of
Section 8(a)(1) of the Act. We disagree.
The record reveals that, about a month before
Thanksgiving, some employees approached Respon-
dent's plant manager, Syed Kaleemuddin, and asked
whether the Company would give them the Friday
after Thanksgiving off if they worked on the
preceding Saturday, not a scheduled workday.
Kaleemuddin relayed their request to Respondent's
vice president, Noel Sterling, who rejected it.
According to Kaleemuddin, some employees again
inquired about a possible trade-off of days and
expressed a willingness to work 8 hours without
overtime on the Saturday preceding Thanksgiving.
Kaleemuddin telephoned Sterling and explained that
the proposed arrangement would not cost the
Company anything. Satisfied that Kaleemuddin's
evaluation was correct, Sterling "granted the day off
after Thanksgiving at no pay, based on the fact the
girls would come in the Saturday before and work a
full eight hours at straight time."
The Administrative Law Judge concluded that the
calculation by Sterling of no loss or cost to
Respondent represented no intrinsic change in
circumstances between the first request, denied, and
the second request, allowed, and that it was the
Union's organizing campaign which motivated Re-
spondent to grant the holiday. However, this analysis
fails to take into account Sterling's and Kaleemud-
din's explanation that the second request, unlike the
first one, included the employees' offer to work
Saturday without overtime. In view of this changed
circumstance proposed by the employees and the fact
that both requests were initiated by the employees
themselves, we do not believe that Respondent's
grant of the day off on November 23, 1973, has been
shown to have been unlawfully motivated.
3. We also disagree with the Administrative Law
Judge's finding that Respondent's grant of an
additional half day holiday on Monday, December
24, 1973, the day before Christmas, was an unlawful
grant of benefits, in violation of Section 8(a)(1) of the
Act. In past years, on the day before Christmas,
Respondent's employees worked a half day and were
given a free lunch and the afternoon off. In 1973, at
an unspecified time following the October 23 meeting
of Kaleemuddin and the plant employees concerning
the Union's organizing campaign, Kaleemuddin
announced that the employees would be given a
whole holiday on the day before Christmas. Sterling
explained that Respondent's president, James Mills,
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (CA. 3, 1951 ) We have
carefully examined the record and find no basis for reversing his findings
DYNACOR PLASTICS & TEXTILES DIV. OF MEDLINE INDUSTRIES 1405
contacted him with "a directive from the Board of
Directors of Medline Industries that the entire
Company throughout the country was closed down
for that day." Following the receipt of this commum-
cation, Sterling instructed Kaleemuddin to make the
announcement.
Noting that the Respondent offered no copy of a
minute or other record or purported corroboration of
its board of directors' alleged action, the Administra-
tive Law Judge found the grant of the half day
holiday on December 24, 1973, to be unlawful,
reasoning that the timing of the grant, while union
organizing was in progress, was more than coinci-
dence. We consider it significant, however, that
Respondent granted the half day off at all its plants,
e.g., in Florida, Colorado, Texas, and Michigan, and
we believe that this action serves to corroborate the
explanation offered by Sterling. In all the circum-
stances, we do not believe that the grant of this
additional half day holiday at all plants was designed
to influence employees at the Indiana plant herein in
their pursuit of union activities, and we find that it
was not a violation of Section 8(a)(1) of the Act.
4. The Administrative Law Judge found that
Respondent violated Section 8(a)(1) of the Act on or
about November 19, 1973, when it put into effect an
increase on the piecework rate on patient gowns from
74 cents to 85 cents per dozen for the principal work
called "serging." He based this fording primarily on
the timing of the grant and its combination with the
other grant of benefits which he found to be
unlawful. However, it is undisputed that the piece-
work rates for the sewing machine operators change
frequently and that the rate in issue has been
changed every 5 to 7 months from May 1972 through
November 1973. Furthermore, this new piece rate
was initially introduced at Respondent's Detroit
plant and was then instituted at the plant herein in
an effort to maintain comparable piecework rates at
the two locations. In view of the foregoing, we
believe that, by increasing the piecework rate,
Respondent did no more than continue past practice
with respect to piece rates at this plant before the
appearance of the Union. We, therefore, find that the
piecework rate increase on November 19, 1973, did
not violate Section 8(a)(1) of the Act.
5. Finally, we do not adopt the Administrative
Law Judge's fording that Respondent violated
Section 8(a)(1) of the Act when its vice president,
Sterling, told employee Ruth Larew she would be
fired if she missed a day of work after returning from
having surgery. Larew had assisted Union Business
Representative Cnpe at the representation hearing
held on January 24, 1974, but failed to return to the
plant for work when the hearing ended around noon.
Larew was in the plant office on January 29 filling
out her ticket prior to leaving for the hospital for
scheduled surgery, when Sterling asked her why she
had not returned to work after the Board hearing on
January 24. Larew responded that she stayed to talk
with Union Representative Cripe. Sterling then
commented that Larew had missed quite a bit of
work, and Larew explained that her absences were
due to her mother's illness which left no one but
Larew to care for her children at home. At this point,
according to Larew, Sterling told her "he didn't care
what my reason was when I got back from having
surgery, if I missed one day of work I was fired."
After the surgery, Larew returned to work, and she
remains employed by Respondent although she has
missed some work since returning.
The Administrative Law Judge found that Sterling
threatened Larew because she lost some time
assisting the union representative at the representa-
tion hearing. However, even according to Larew,
Sterling asked only why she had not returned to work
after the hearing ended; he said nothing about her
absence occasioned by the hearing itself. Then, after
noting Larew's prior poor attendance record, he
issued the warning about which the General Counsel
complains. It appears to us that Sterling's warning to
Larew, which was never implemented, was prompted
by Sterling's dissatisfaction with Larew's attendance
record for reasons wholly unrelated to her involve-
ment on the union side during the representation
hearing. We therefore find that Sterling's warning did
not violate Section 8(a)(1) of the Act.
6. In fashioning a remedy for the unlawful
discharge of Romayne Joy Raisor, we are cognizant
that Respondent had offered her reinstatement to her
former job before the hearing in this case took place,
and that she had declined such offer because she had
accepted permanent employment elsewhere. While
this offer of reinstatement was made pursuant to the
informal settlement agreement later revoked herein,
there is nothing in the record to indicate that it was
other than full and unconditional and therefore a
valid one. Accordingly, we shall not require the
Respondent to offer her reinstatement again, and
thus to that extent we do not adopt the portions of
the Administrative Law Judge's remedy and Order
requiring that an offer of reinstatement be made to
her.2
2 We also note that, in accordance with the terms of the revoked
settlement agreement , Respondent paid backpay due and owing to her from
the time of her discharge until her declination of an offer of reinstatement.
Since we cannot ascertain from the record whether these moneys were
returned by her or whether, indeed , the sum paid fully represents the
amount of backpay she would be entitled to, we shall order Respondent to
make her whole only to the extent that it has not already done so.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Dynacor Plastics and Textiles Division of Medline
Industries, Inc., Covington, Indiana, its officers,
agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union interest, sympathies, and activities.
(b) Threatening to discharge employees if they
engage in or support union activities or to close the
plant, or threatening other economic reprisal against
the employees if the Union is brought into the plant.
(c) Granting or promising free luncheons to
dissuade employees from pursuing their interest in
the Union.
(d) Instituting and maintaining a record of oral or
other reprimands of employees with the object of
intimidating employees from pursuing union activi-
ties.
(e) Issuing disciplinary warnings to employees
because of their union activities or sympathies.
(f) Discharging employees because they engage in
or are suspected of engaging in or supporting union
.activities.
(g) Discouraging employees from support of or
membership in the Union, or any other labor
organization, by discharge or notice of disciplinary
action, or other discrimination affecting their tenure
and conditions of employment.
(h) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the, policies of the Act:
(a) Make employees Romayne Joy Raisor and
Carolyn Hickman whole, in the manner set forth in
the section of the Administrative Law Judge's
Decision entitled "The Remedy," as modified, for
any loss of earnings incurred by them as a result of
their discharges on November 6, 1973, and March
26, 1974, respectively.
(b) Offer to employee Hickman immediate and full
reinstatement 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, employee Raisor having declined a previ-
ous offer of reinstatement.
(c) Rescind the disciplinary warning of April 12,
1974, issued to employee Joyce Humphreys, and
expunge from her personnel record any notation of
the warning and the notation of an alleged January
28, 1974, warning.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Post in its plant at Covington, Indiana, copies of
the attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by
the Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
s In the event that this 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
The National Labor Relations Board having found,
after a trial, that we violated the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT coercively interrogate you con-
cerning your union interest, sympathies, and
activities.
WE WILL NOT threaten to discharge you if you
engage in or support union activities.
WE WILL NOT threaten to close the plant, or
threaten other economic reprisal against you, if
the Union is brought into the plant.
WE WILL NOT grant or promise free luncheons
in order to persuade employees to stop pursuing
their interest in the Union.
WE WILL NOT institute or maintain a record of
oral or other reprimands of employees with the
object of intimidating employees from pursuing
union activities.
WE WILL NOT discharge employees, or issue
warnings of discipline to them, because they
engage in or are suspected of engaging in or
supporting union activities.
DYNACOR PLASTICS & TEXTILES DIV. OF MEDLINE INDUSTRIES 1407
WE WILL NOT discourage you from support of
or membership in the Union, or other labor
organization, by discharge or notice of discipli-
nary action or other discrimination affecting
tenure and conditions of your employment.
WE WILL NOT in any other manner interfere
with your rights to belong to or be active for a
labor union, or to refrain therefrom.
Because the Board found that we unlawfully
discharged employee Romayne Joy Raisor on
November 6, 1973, and employee Carolyn Hick-
man on March 26, 1974, and unlawfully issued a
disciplinary warning to employee Joyce Hum-
phreys on April 12, 1974, WE WILL offer employee
Hickman her, former job or, if suchjob no longer
exists , a substantially equivalent job, without
prejudice to her seniority or other rights and
privileges; WE WILL give to Hickman backpay
with 6-percent interest from the date of her
discharge; WE WILL give to Raisor, to the extent
that it has not already been given, backpay with
6-percent interest from the date of her discharge
until ,the date she declined our offer of reinstate-
ment to her former job; and WE WILL rescind the
disciplinary warning of April 12, 1974, to employ-
ee Humphreys and expunge any notation of the
warning from her personnel record and expunge
the notation of an alleged January 28, 1974,
warning.
DYNACOR PLASTICS AND
TEXTILES DIVISION OF
MEDLINE INDUSTRIES,
INC.
DECISION
HERZEL H.E. PLAINE, Administrative Law Judge: On
December 27, 1973, Respondent, a manufacturer of linens
and garments for hospitals and nursing homes, entered into
an informal settlement with Region 25 of alleged 8(a)(1)
and (3) violations of the National Labor Relations Act (the
Act), growing out of claimed interference by Respondent
with the rights of employees and discrimination against
some in the union organizing campaign begun in October
1973 by the Charging Party (Union) among Respondent's
production workers at the Covington, Indiana, plant.
On May 23, 1974, the Regional Director vacated and set
aside the settlement agreement because of Respondent's
alleged noncompliance with the agreement, comprising
further claimed interference with the rights of employees
and discrimination against some of them in violation of
Section 8(a)(1) and (3) in the period January-April 1974,
which was prior to and following the Board-conducted
representation election of March 7, 1974.
Also on May 23, 1974, the Regional Director reactivated
the presettlement cases , 25-CA-5905 and 25-5905-2,1 and
consolidated them with the postsettlement cases , 25-CA-
6218 and 25-CA-6218-2,2 issuing a consolidated com-
plaint for all four cases.
Contrary to the General Counsel , Respondent contended
that neither its postsettlement nor presettlement actions
had violated the Act and that there was no cause for
having vacated the settlement.
The cases were tried July 9-11, 1974, in Covington,
Indiana, pursuant to the Board practice , approved in
N.L.R.B. v. Northern California District Council of Hod
Carriers and Common Laborers of America, AFL-CIO
(Joseph 's Landscaping Service), 389 F .2d 721 (C.A. 9, 1968),
enfg. 154 NLRB 1384 ( 1965),3 under which the merit of
vacating the settlement was in issue, but permitting
admission of evidence of both presettlement and postsettle-
ment activity and consideration of the presettlement
evidence to establish the motive or object of the Respon-
dent's postsettlement actions.
Counsel for the General Counsel and Respondent have
filed briefs.
Upon the entire record in the cases , including my
observation of the witnesses and consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Illinois corporation with its principal
office in Northbrook, Illinois , and the Dynacor plant at
Covington, Indiana, where it has engaged in the manufac-
ture, sale, and distribution of hospital and nursing home
supplies.
In the 12 months prior to issuance of the consolidated
complaint, Respondent bought and caused to be directly
delivered to its Dynacor plant goods, valued in excess of
$50,000, from points in States other than Indiana. In the
same period, Respondent received gross revenues in excess
of $500,000 from its business operations.
Respondent is, as the parties admit, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The Union is, as the parties also admit , a labor
organization within the meaning of Section 2(5) of the Act.
H. THE UNFAIR LABOR PRACTICES
A. Respondent's Operations and Organization
Respondent Medline, headquartered in Northbrook,
Illinois , is in the hospital and nursing home supply
business . It has two sewing plants where reusable linens
and garments for hospitals and nursing plants are turned
out. One is the Dynacor plant in Covington, Indiana, with
which these cases are concerned; the other is the
I Based on charges filed by the Union on October 25 and November 30,
1973, respectively.
2 Based on charges filed by the Union on April 4 and April 8, 1974,
respectively.
3 And see Alkahn Silk Label Company, 193 NLRB 167, 168 (1971).
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kuttenauer Manufacturing plant in Detroit, Michigan,
acquired by Respondent in the fall of 1973.4
In overall charge of the Dynacor and Kuttenauer plants
is Respondent's vice president for the textile division, Noel
Sterling. Sterling's office is at the company headquarters in
Northbrook, Illinois, but he regularly visits the Dynacor
and Kuttenauer plants where there are under his charge
about 135 persons, 90 at Dynacor and 45 at Kuttenauer. In
the period embracing the union campaign, roughly
October 1973 to Match 1974, Sterling visited Dynacor
more frequently and stayed longer than usual, according to
Floorlady and Supervisor Rovme Auter.
Of the persons employed at Dynacor, about 70 employ-
ees comprised the unit of production employees, found
appropriate for collective bargaining in the representation
case, 25-RC-5578, who voted at the representation
election held March 7, 1974, where the Union lost. These
employees are mostly women, engaged in the sewing and
related work in producing and shipping the hospital and
nursing home linens and garments, plus a small group
producing some plastic products.
Directly in charge of the Dynacor plant, and answerable
to Vice President Sterling, was Plant Manager Syed
Kaleemuddin. Both men were conceded by Respondent to
be supervisors within the meaning of the Act.
Under Plant Manager Kaleemuddin's immediate direc-
tion were several floorladies who gave the working women
their orders, saw that their work was done correctly,
trained new girls , and effectively recommended hirings and
terminations. The floorladies were paid an hourly wage
rather than the piecework rates paid the sewing employees.
Among the floorladies, with about 35-40 women in the
sewing section under their direction, were Rovine Auter
and Isabel Turner, who were conceded by Vice President
Sterling and Manager Kaleemuddin to be supervisors and
proved by their testimony and the testimony of additional
witnesses to be statutory supervisors. See Brewton Fashions,
Inc. v. N.L.R.B., 361 F.2d 8, 11-12 (C.A. 5, 1966), cert.
denied 385 U.S. 842 (1966), holding floorladies similarly
supervising sewing sections to be supervisors within the
meaning of the Act.
B. Union Organizing and Election
Union Representative Daniel Cripe testified that the
organizing of the employees by the Union began October
4, 1973, with a union meeting that day and meetings
thereafter up until the time of the election of March 7,
1974, signing of union (combined) authorization-member-
ship cards and distribution of cards to obtain other signers
among the employees, and distribution of literature for
further circulation to other employees. Among the meeting
attenders were employees Joyce Humphreys and Romayne
Joy Raisor, and both signed union cards (Raisor, G.C.
Exh. 8b, dated October 22, 1973; Humphreys, G.C. Exh.
8a, dated October 23, 1973). As the campaign developed,
some of the employees wore union buttons, about 10 or 11
employees according to Floorlady Auter.
On October 23, 1973, Union Representative Cripe sent
Plant Manager Kaleemuddm a letter which Kaleemuddin
said he received (G.C. Exh. 3b), informing him that the
employees had formed an organizing committee actively
engaged in organizing on behalf of the Union. Manager
Kaleemuddin conceded that he was aware of the union
organizing activity before he received the written notifica-
tion and that he learned of it from various employees, but
claimed he did not learn of it earlier than October 22, the
day before he called a meeting of the employees on the
subject.
On December 18, 1973, the Union in a letter to
Respondent (G.C. Exh. 3c) claimed it had a majority of the
employees and asked for recognition and bargaining.
Respondent declined to do either in a reply letter dated
December 21, 1973 (G.C. Exh. 3d).
The Union filed a representation petition, December 19,
1973, 25-RC-5578, on which a hearing was held January
24, 1974, in Covington, Indiana, and an election conducted
at the plant March 7, 1974. The Union lost the election by
a 43-29 vote (G.C. Exh. 2f).
C. Respondent's Presettlement Actions
1. Plant meeting-interrogation, polling, threats
On Tuesday, October 23, 1973, Plant Manager Kalee-
muddin called a meeting of all of the plant employees. He
testified that he did so because some employees had
reported to him they were being importuned to join the
Union. The meeting was attended by about 70 employees,
mostly women, according to employee Mary Green, and,
according to employee Joyce Humphreys, lasted about I
hour and 20 minutes with Kaleemuddin doing most of the
talking.
Plant Manager Kaleemuddm testified that after express-
ing disappointment to the assemblage that a number of
employees were trying to bring a union into the plant he
said, essentially, only the following: What can a union do
in our plant? We do not need a union. I do not see how a
third party could help, since I have always worked closely
with the employees and listened to their complaints. In
these circumstances I do not think a third party, especially
one paid to talk for the employees, is needed in our plant to
talk for them.
According to Kaleemuddin, several employees spoke up
giving their experiences and opinions against a union.
Whereupon, he continued, I said it would be fair if some of
those in favor of the Union could talk and explain what
they know, we would like to hear from them. I asked,
several times , that someone in favor of the Union come
forward and explain what the Union could do because
others had spoken against the Union. No one came
forward, he said.
A half dozen employees plus two supervisors filled in
some of the detail of the meeting, providing compositely a
different version from Kaleemuddin's.
Employees Mary Osborn and Ruth Larew testified that
Manager Kaleemuddin said he heard that some of the girls
were trying to get the Union in the plant, and those who
were responsible should come forward and tell why, and
tell what was good about the Union and what it could do
4 Other corporate plants are in Houston , Texas, and Tampa, Florida, and there are warehouses located in Omaha, Nebraska , and in Colorado.
DYNACOR PLASTICS & TEXTILES DIV. OF MEDLINE INDUSTRIES 1409
for us. According to employee Joy Raisor, Kaleemuddin
said the starters of the Union were troublemakers and
should leave the plant.
According to employees Osborn, Mary Green, Carolyn
Hickman, and Larew, Manager Kaleemuddin said he
would close the plant down for 6 months if the Union talk
didn't quiet down or quit, and what would the widow
ladies and older women do. Employee Larew spoke up, she
testified, saying she was a woman with five children to
support. According to employees Raisor and Hickman,
Kaleemuddin said the Union would cause strikes and take
large chunks of their pay in dues and fees; and, according
to employee Larew, Kaleemuddin asked if the employees
knew how many plants had shut down or moved from
Covington because of union strikes to get into the plants.
No one answered, said Larew.
Employees Osborn, Larew, Raisor, Humphreys, and
Hickman and Floorladies Auter and Karushis testified to
Manager Kaleemuddin's questioning of several employees
in the meeting . Employee Osborn had noted a need for
daily instead of weekly rates, and Kaleemuddin asked her
had she signed a union card and was that the reason she
signed a union card. Osborn replied that was not the issue.
Kaleemuddin then said whoever started this thing (the
union organizing) should come up and talk to the group.
Kaleemuddin asked employee Larew if she wanted to get
up and tell about the Union, and she declined. Kaleemud-
din asked employee Osborn if she had anything to say in
support of the Union, and Osborn said no. Kaleemuddin
asked employee Angie Crowder if she had anything to say
in support of the Union, and she did not answer.
Kaleemuddm asked employee Newkirk if she knew
anything about having the Union organized in the plant
and she said she knew nothing. When no one responded to
these urgings to talk, said employee Larew, Kaleemuddin
commented that evidently none of the employees believed
in the Union.5
According to employees Green, Osborn, Larew, Hum-
phreys, and Hickman, Plant Manager Kaleemuddin asked
several times for a show of hands by those employees who
favored the Union. No hands showed. Several women
spoke against the Union and, according to Floorlady
Karushis, one of them suggested a show of hands for and a
show of hands against the Union. Plant Manager Kalee-
muddin then said, if the employees would give him the
name of the union representative and enough hands for the
Union showed, he would call the union man and take a
ballot then and there . Employee Mary Green spoke up and
said that a vote was personal and you did not tell how you
voted. Kaleemuddin replied, it was not personal, it
involved the whole plant.
I credit the foregoing testimony of the employees and
floorladies as to what transpired at the October 23 meeting.
5 After first denying that he had interrogated or called on employees for
their views on the Union, Plant Manager Kaleemuddm on further
examination, following the above-summarized testimony, conceded that he
had asked employee Ruth Larew and several others to come forward and
speak about the Union.
6 This alleged paucity of sales records is strange for a company that Vice
President Sterling said is publicly owned , and that had sales in fiscal 1974
2. Free lunch, special holidays, pay increase
On the day following the October 23 plant meeting,
Wednesday, October 24, 1973, Respondent gave the plant
employees a free lunch. Plant Manager Kaleemuddin said
he didn't remember when he made the announcement of
the lunch but thought it was made in the week before.
Significantly, none of the employee witnesses (on either
side of the case) and none of the plant supervisory
employees provided any corroboration of this claimed
early announcement.
Vice President Sterling claimed that the free lunch was
his idea, conceived in mid-October, before (he said) he
learned from Manager Kaleemuddin of the Union organiz-
ing at Dynacor, because it turned out that the month of
October produced a record sales total for Dynacor, and he
wanted to show his appreciation to the Dynacor employ-
ees. Of course, he didn't know in mid-October what
October's sales would total; nevertheless in mid-October,
he said, he told Manager Kaleemuddin to notify the
employees that they were doing a good job and to arrange
a lunch for them. This, said Kaleemuddin, is what he did.
Sterling said he had concluded in mid-October that it
was going to be a record month because he had tabulated
by the middle of the month 2 record days of sales and had
reached his goal for the month ($170,000), that developed,
by the end of the month, into a peak sales month
($248,100).
However, Sterling produced no daily records or totals of
sales, in fact testified that neither Respondent nor he kept
any and that he destroyed any daily totals he might have
penciled or put on an adding machine tab. He provided
only a handwritten tabulation of monthly totals, which he
said he personally kept, showing lump sum totals per
month of estimated and actual sales for Dynacor since
1971 (Resp. Exh. 4c).6
The timing of the free lunch on the heels of the previous
day's plant meeting to discourage the employees in their
union organizing, and the lack of any corroborative
evidence for the self-serving statements regarding the
reasons,for and timing of its announcement, lead me to
believe that the Sterling-Kaleemuddm explanation was an
afterthought, and that the free lunch was part of a
developing pattern of special benefits, as well as threats,
designed to inhibit free choice of the employees in deciding
upon a bargaining representative.7
Thereafter in November 1973, Respondent gave the
Dynacor employees an unscheduled holiday on Friday,
November 23, after the Thanksgiving Thursday, November
22, a scheduled holiday. About a month before, according
to employee Mary Green, Floorlady Karushis, and Plant
Manager Kaleemuddin, some employees (one identified as
Betty Stonebreaker) had asked management for a Thurs-
day-Friday Thanksgiving holiday by a trade-off of working
on the previous Saturday, not a scheduled working day, in
(ending March 1974) of $15.5 million of which the Dynacor division
produced about $2.3 million
7 I do not regard the company practice of having food or a party for the
employees on the day before Christmas as establishing, as Respondent
contends , that there was nothing unusual about the Wednesday free lunch
on October 24.
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
place of the requested Friday holiday. Kaleemuddin
testified that he put it up to Vice President Sterling, who
said no. According to Kaleemuddm, such a swap of days
had not been granted before and he did not have the
authority to grant it.
Following his October 23 meeting with the employees on
the matter of the union organizing, Plant Manager
Kaleemuddin said he renewed with Vice President Sterling
the previously denied request of the employees for the
swap of working days at Thanksgiving time. This time
Sterling said yes, and Kaleemuddin announced it to the
employees over the public address system. Sterling testified
that he calculated there would be no production loss or
extra cost to Respondent, and accordingly allowed the
Friday holiday in place of the employees working on the
previous Saturday.
Of course, this calculation by Sterling of no loss or cost
to Respondent represented no intrinsic change of circum-
stances between the first request, denied, and the second
request, allowed, for the swap of working days. What had
changed was the intervention, and management's full
awareness, of the union organizing campaign among the
employees.
Also at some (unspecified) time following the October 23
meeting of Plant Manager Kaleemuddin and the employ-
ees concerning the union organizing, Kaleemuddin an-
nounced an extra holiday period for the employees at
Christmastime, December 1973. Hitherto, said Kaleemud-
din, on the day before Christmas the employees worked a
half day, and were given a lunch and the afternoon off.
This time it was announced over the public address system
that the employees would have a whole day holiday on the
day before Christmas, December 24, 1973, and they were
given the day off. Vice President Sterling claimed that the
change in policy was a result of a directive from
Respondent's board of directors declaring the pre-Christ-
mas day a companywide holiday and that he got the word
from the company president and notified Plant Manager
Kaleemuddin. Respondent offered no copy of a minute or
other record or purported corroboration of the board of
directors' alleged action.
The testimony of a number of employees indicated that
the amount of the piecework rates set for the women had
been a source of open dissatisfaction among them. On or
about November 19, 1973, according to Plant Manager
Kaleemuddin, Vice President Sterling ordered, and there
was put into effect, an increase on the piecework rate on
patient gowns from 74 cents to 85 cents per dozen for the
principal work called serging (however leaving other
ancillary work on the gowns, such as taping, tacking,
inspection and folding, at the piece rates in effect since
May 1972, see Resp. Exh. 2b).
3. Distribution of antiunion literature
In the period from October 23, 1973, to March 7, 1974
(the date of the representation election), as attested by
Plant Manager Kaleemuddin, Respondent distributed
literature to its employees, usually on company letterheads
and variously over the signatures of Plant Manager
Kaleemuddin, Vice President Sterling, and Vice President
John Mills, stating Respondent's opposition to the Union
and warning the employees against dangers the Union
would cause in loss of work and wages from strikes, in loss
of money from union dues, fees, fines, and special
assessments, in broken promises, and in loss of mutual
trust between employer and employees (G.C. Exhs. 3a and
3e through 3p). Some of the company literature stressed an
alleged bad record for strikes of the Union 8
The complaint did not allege that the company literature
distributed to its employees violated the Act, but General
Counsel urged that the literature constituted further,
cumulative evidence of Respondent's antiunion hostility.
4. Discharge of employee Raisor
Employee Romayne Joy Raisor was hired on October 4,
1973, and her employment was terminated on November 6,
1973. She was told at the time that her termination was a
temporary layoff and that she would be called back, but
actually she was discharged and was not called back.
Employee Raisor was hired as a sewer and when hired,
she said, was guaranteed work without layoffs by Plant
Manager Kaleemuddin. Kaleemuddin testified she was
hired as a trainee sewer and offered steady employment if
she worked out. On the second day of her employment she
was moved to folding in the inspection department, where
she worked for a week, then was moved to the shipping
department, where she worked for 2 weeks, then was
moved back to folding, and, shortly thereafter, on
November 6, was told by her two immediate supervisors,
Floorladies Isabel Turner and Rovine Auter, that she was
laid off and would be called back when work picked up.
The promise that she would be called back was admitted,
and Plant Manager Kaleemuddin also admitted that two
other women employees, Lucas and Douglas, laid off at the
same time as employee Raisor, were called back but that
Raisor was not asked to return.
Plant Manager Kaleemuddin testified that Floorladies
Turner and Auter, particularly Auter, advised him that
employee Raisor wasn't capable of being a sewing machine
operator; but, in answering questions by Respondent's
counsel, Floorlady Auter testified that she and the other
floorladies could not tell in the first day or two whether a
new girl would make it on the sewing machine, it took 2 or
3 weeks, and only if the girls failed after such a trial period
would they let her go. (Floorlady Turner was not called to
testify.)
Plant Manager Kaleemuddin agreed with employee
Raisor that she came back to the plant several times in
November, seeking recall. Kaleemuddin testified that he
suggested, and Raisor was willing, that she go back on the
sewing machine, but that Floorlady Auter advised against
the arrangement on the ground that Raisor would never
make it, hence he did not recall her. Floorlady Auter
testified, in response to questions by Respondent's counsel,
that it was part of her job to recommend hirings and
terminations, that she was responsible for initial training of
b The Union in its distribution of literature (G.C. Exhs. 10 and I la in the later distributions defending its record in the matter of strikes and
through l li), referred to under section B, supra, in addition to describing noting an alleged record of company earnings and high profits in which (it
employee organizational rights in the earlier circulars, made counterclaims was said) the employees were not sharing.
DYNACOR PLASTICS & TEXTILES DIV. OF MEDLINE INDUSTRIES 1411
employees on sewing machines, and that she recommended
the hiring of employee Margaret Dunmgan, who succeeded
employee Raisor. However, counsel stopped short of, and
avoided, asking Floorlady Auter whether she recommend-
ed the termination, or against recall, of employee Raisor,
as Kaleemuddin claimed. Floorlady Auter was no longer in
the employment of Respondent when she testified, and
Respondent counsel's failure or refusal "to elicit this
readily available and crucial testimony of a disinterested
witness may well be taken to mean that the information
was adverse to his case." N.LRB. v. Ford Radio & Mica
Corporation, 258 F.2d 457, 463 (C.A. 2, 1958); and see
generally , International Union, UA W [Gyrodyne Co. of
America] v. N.LR.B. 459 F.2d 1329, 1335-46 (C.A.D.C.,
1972), on adverse inferences from failure to produce or
provide evidence within reach or control of a party.
Plant Manager Kaleemuddm's credibility in the matter
of employee Raisor's discharge was subject to further
impeachment when he claimed, and told her, that there
was no folding work in the inspection department for her.
On the contrary, on two of the occasions (November 14
and 26) following her termination of November 6, when
employee Raisor called at the plant seeking recall, she
observed her successor employee Dunnigan, who was hired
on the day Raisor was dropped and who Kaleemuddin
claimed was hired as a sewer, doing folding work in the
inspection department. Kaleemuddin conceded that em-
ployee Dunmgan was "temporarily" assigned from the
sewing department to the inspection department to do
folding.9
After her employment with Respondent had begun on
October 4, 1973, employee Raisor signed a union member-
ship-authorization card (G.C. exh. 8b) on October 22,
1973, on solicitation by employee Ruth Larew; attended
union meetings (testimony of union organizer Cripe, and
see G.C. exh. 9c re meeting of November 2, 1973); and,
when discussions arose among the women at the plant on
what the Union could do for them, made known that her
husband was a union official-trustee of the local
bricklayers union-and discussed what her husband's
union had done for its members.
Plant Manager Kaleemuddin and Vice President Sterling
denied that they were aware that employee Raisor
participated in the union activities of the employees or
signed a union card. However I regard it of some
significance, as Kaleemuddm testified, that Sterling had
directed Floorlady Auter, Raisor's immediate supervisor,
to speak to the women employees against the Union, and
to distribute to them the Company's antiunion literature
which she did, said Kaleemuddin. Floorlady Auter, when
testifying, did not deny this, but testified only that Vice
President Sterling had not directed her to ascertain, and
she had not asked, whether any employee was going to
9 Plant Manager Kaleemuddin claimed there was no shipping depart-
ment work for employee Raisor because her 2 week's work there had been
to fill in for an absent employee, who returned to work; but that , anyway,
he would not put her back there because after her discharge on November 6,
it was discovered , he said , that she had put the wrong label on some of the
cartons. This testimony was based on the deduction of employee Olivia
Miller of the shipping department, who attributed the mistake to employee
Ratsor because all of the other employees of the shipping department said it
wasn 't their mistake , and Raisor was no longer there to be questioned or to
vote for or against the Union. It is perhaps even more
significant that at least by his October 23, 1973, meeting
with the employees, supra, Plant Manager Kaleemuddin
was already aware of the names of a number of employees
who were participants in the union meetings and card
signers and displayed that knowledge by calling on some
by name to defend their espousal of the Union.
5. 8(a)(1) and (3) findings
Respondent's conduct in the October 23, 1973, meeting
with its employees, embracing coercive interrogation of the
union views, sentiments, and activities of the employees, in
a context of avowed employer hostility to the Union and
threats of job loss and closing of the plant if the Union
were brought into the plant, and the threats themselves,
constituted unlawful interference, restraint, and coercion
proscribed by Section 8(axl) of the Act. N.L.R.B. v. Henry
Colder Company, 416 F.2d 750, 753 (C.A. 7, 1969); Daniel
Construction Co., Inc. v. NLRB., 341' F.2d 805, 812, 813,
814 (C.A. 4, 1965), cert. denied 382 U.S. 831 (1965).
Among other things, there was no legitimate reason for
management asking whether or why an employee had
signed a union card, or for a show of hands by those who
favored the Umon, or for singling out employees by name
to stand up and declare why they favored or wanted the
Union or what they knew about the union organizing in
the plant. The illegitimacy of the prying and its coercive-
ness was particularly obvious because, rather than giving
assurances against reprisal, the questioning was accompa-
nied by threats of retaliation against employees responsible
for seeking out the Union and against the employees
generally if the Union came in. N.LR.B. v. Camco, Inc.,
340 F.2d 803, 804-807 (C.A. 5, 1965), cert. denied 382 U.S.
926 (1965).
Contrary to Respondent' s contention, the plant manag-
er's statement to the employees on October 23, that he
would close the plant for 6 months if the union talk didn't
quiet down or end , was "not cast as a prediction of
`demonstrable economic consequences' " of plant unioni-
zation , "but rather as a threat of retaliatory action," if the
employees persisted in their support of the Union.
N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 619
(1969).
Respondent's subsequent actions , between the October
23 meeting and Christmas 1973, giving the employees the
free lunch on October 24, the special or extra holidays at
Thanksgiving and Christmas, and the pay increase of
November 19, against the background of a flow of written
materials distributed by Respondent opposing and discour-
aging unionization by the employees, likewise constituted
interference forbidden by Section 8(axl) with the employ-
ees' right to organize . As the Supreme Court said in
NLRB. v. Exchange Parts Company, 375 U.S. 405, 409
deny or admit it.
On the other hand, while employee Raisor was still employed , according
to Raisor, there were no complaints about her work and Floorlady Turner
commented on Raisor 's performance on one occasion to Floorlady Auter,
m Raisor's presence , that, she's really good isn't she , and Auter agreed, said
Raisor Floorlady Auter, who testified as already indicated , did not
contradict the praise or any of Raisor's testimony , indeed was asked nothing
by Respondent concerning Raisor s performance or ability, and Floorlady
Turner was not called by Respondent to testify.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1964);, such actions contain "the inference that the source
of ,benefits now conferred is also the source from which
future„benefits must flow and which may dry up if it is not
obliged ." The timing of the grant of these benefits, while
the union organizing was in progress , was more than
r,oincidence , and the combination of them constituted a
substantial grant of these economic benefits designed to
influence the choice of the employees , in violation of
Section 8 (a)(1) of the Act . N.LR.B. v. Western Reserve
Telephone Co., 323 F .2d 564, 566 (C .A. 6, 1963)..,
Part of this series of unlawful acts , aimed at discouraging
and preventing unionization of the employees, was
Respondent 's discharge of employee Raisor on November
C, ;1.973 . Though a comparatively new employee, she
immediately associated herself with the employees interest-
ed in unionizing the shop , signed a union membership
card , attended union meetings, and engaged in in-plant
discussions on what the Union could do for the employees,
noting for them that her husband was a trustee of the local
bricklayers union and telling them what her husband's
union had done for its members . From the evidence
already discussed above , there is reason to find that Plant
Manager Kaleemuddin was aware of these facts concern-
ing Raisor , notwithstanding his denial . Addition-
illy, the small number of employees in the shop , the timing
of the discharge , and the unconvincing reasons offered to
justify it , support an inference of knowledge by Respon-
del► t of employee Raisor 's union activity among the
gniployees. Wiese Plow Welding Co., Inc., 123 NLRB 616,
¢I7-61'8 (1959); Big Town Super Mart, Inc., 148 NLRB
5,95, 606 (1964).
1Rèsp9ndent 's explanation for the discharge , labeled
layoff, of employee Raisor "failed to stand scrutiny."
1VLR. B. v. Griggs Equipment, Inc., 307 F.2d 275 , 278 (C.A.
^ 1962). Raisor was not given a chance to train or work at
the sewing job for which she was hired , but instead was
moved on the second day of her employment to folding in
the inspecting department , then to the shipping department
to, fill An for an absent employee , then back to folding in the
inspection department , from which she was laid off,
all egedly for lack of work , with a promise to be called back
that was never fulfilled . The claim that she was incompe-
tent to ado or to learn the sewing for which she was hired
was wholly unsupported , and the contention that there was
nb4folding work in the inspection department for her was
refuted ' by the evidence that the replacement employee
hired the same day Raisor was fired was doing folding
work in the several weeks following Raisor 's discharge.
J16twithstanding Raisor 's vigorous efforts to be restored to
employment , Respondent did not claim that there was no
sewing work for her to return to and for that matter did not
claim that there was no other work available for her;
indeed i Respondent had returned to work two other
employees , who had been laid off at the time of Raisor's
discharge . On the contrary, Respondent 's claim , which has
proven to be sham , was that employee Raisor was not
called back because of her alleged incompetence.
Given Respondent 's strong and openly exhibited hostili-
t' !to' the union organizing in the shop , including its
Aui erated activities in violation of Section 8(a)(1) of the
Act designed to frustrate such organization, Respondent's
inability to satisfactorily explain the layoff-discharge of
employee Raisor suggests that the true reason for the
discharge was her union affiliation and activity and
Respondent's intention to discourage further union activity
and membership among the employees. Great Atlantic and
Pacific Tea Co., Inc. v. N.LR.B., 354 F.2d 707,709 (C.A. 5,
1966); McGraw-Edison Company v. N. L R B., 419 F.2d 67,
75 (C.A. 8, 1969). The discharge was in violation of Section
8(a)(3) and (1) of the Act.
The fact that Respondent did not, at the same time,
select other active adherents of the Union for discriminato-
ry discharge does not absolve Respondent, or stay the
hand of the Board in correcting action taken against the
one employee for impermissible reasons under the Act.
Rust Engineering Company v. N.LR.B., 445 F.2d 172, 174
(C.A. 6, 1971).
D. The Settlement of December 27, 1973
In entering into the informal settlement of Cases 25-CA-
5905 and 25-5905-2, approved by the Regional Director,
December 27, 1973 (G.C. exh. li), Respondent, without
admitting the commission of any unfair labor practice,
agreed, among other things, to post a notice for 60 days in
the Dynacor plant. By the notice, Respondent notified its
employees that it would refrain from asking those among
them who favored the Union to identify themselves or
whether they had signed union cards, that it would not
threaten to close the plant or to go out of business in order
to discourage employee support of or membership in the
Union, and that it would not grant special holidays and
free lunches or increase piecework rates in order to
encourage the employees to reject the Union. Additionally,
the employees were notified that Respondent would offer
employee Raisor immediate and full reinstatement to her
former or substantially equivalent job and make her whole
for backpay lost as a result of the discrimination against
her. Elsewhere in the agreement the gross backpay was
agreed to be $345.60. Lastly, by the notice, Respondent
informed the employees that it would not in any manner
interfere with, restrain, or coerce the employees in the
exercise of their rights under Section 7 of the Act.
Respondent posted the notice from January 21 to March
25, 1974, and paid employee Raisor the gross backpay of
$345.60 minus payroll deductions. Raisor, who had
obtained other employment with the Essex Wire Company
sometime in December 1973, waived an offer of reinstate-
ment by Respondent.
On May 23, 1974, the Regional Director set aside the
December 27 settlement agreement because in the Janu-
ary-March 7, 1974, preelection period and the March 7-
April 1974 postelection period, Respondent allegedly
violated its undertaking not to interfere with the Section 7
rights of the employees, by further alleged coercive
interrogation of, or threats of reprisal against, employees
concerning their union activities or affiliation, by discrimi-
natory discharge of employee Carolyn Hickman, by
instituting for discriminatory purposes a recordkeeping
system of warnings of discipline, and by issuing a
discriminatory warning of discipline to employee Joyce
Humphreys. At the same time the Regional Director
DYNACOR PLASTICS & TEXTILES DIV. OF MEDLINE INDUSTRIES 1413
reinstated the earlier complaints against Respondent and
consolidated them with the postsettlement complaints.
E. Respondent's Postsettlement Actions
1. Interrogation, threats
The Union filed a representation petition on December
19, 1973, and a hearing was held on the petition on January
24, 1974, at Covington. The election was held at the
Dynacor plant in Covington on March 7, 1974.
According to Plant Manager Kaleemuddin, Vice Presi-
dent Sterling came to the plant more often than usual in
the period from January 1974 to the March 7 election, and
mixed with and talked to the employees in that period.io
Employee Ruth Larew attended the representation
hearing on January 24, at the county courthouse, and
assisted Union Representative Cripe. A few days later, on
January 29, before leaving for the hospital for scheduled
surgery, employee Larew was questioned by Vice President
Sterling on why she didn't come back to work on January
24 after the Board hearing. She explained she had stayed
on to talk with Union Representative Cripe (and also
explained that she had missed work on another occasion
because her mother, who stayed with her five children to
make it possible for her to go to work, was ill). Sterling told
employee Larew that he didn't care for her reason for
being out and that, after her surgery, if she missed 1 day of
work she would be fired."
Employee Mary Green, who had been an hourly
employee in the shipping department until after the
election , testified that about three weeks before the
election, Vice President Sterling engaged her in conversa-
tion in the shipping department concerning the Union. He
asked if she had any questions about the Union and she
said no. Sterling asked if the Union could do any good,
and she replied it would help her in getting fair Saturday
overtime. Sterling then said to employee Green, if the
Union got in it would not mean that the Company would
not go back to $1.60 per hour from the then current $1.80
per hour, that the Company did not have to go forward but
could go back to the minimum $1.60 per hour pay, and
similarly could change and make reductions in the 2-week
vacation pay and change other policies.
Employee Green further testified that a few days before
the election Plant Manager Kaleemuddin was in the
shipping department and asked her what she thought the
Union could do. She replied, she said, it could help a girl,
injured at work, get herjob back. Kaleemuddin asked, if he
could prove to her that the Union was lying, would she
vote against it. Employee Green answered yes. He then
showed her a financial statement but she did not
understand it, she said. Kaleemuddin then commented, she
said, if the Union got in and the plant were in jeopardy or
eliminated, he, with his education, could go to California to
get a job, but that the widow ladies would not have that
opportunity and what would they do if the plant closed.
10 Floorlady Auter testified that in the approximate same period, a man
named Swartz , said to be a lawyer , was also brought to the plant several
days a week, and in the 3-week period before the election was there 5 days a
week, working with Vice President Sterling and the other supervisors with
Employee Mary Osborn testified that just before the
election Vice President Sterling engaged her in a conversa-
tion saying he didn't see why the employees wanted a
union. According to Osborn, Sterling asked questions and
she answered some, and he commented on the disadvan-
tages of a union, mostly the matter of strikes. He showed
her a comparison of company income or profit figures, one
prepared by the Company, the other allegedly prepared by
Union Representative Cripe, and asked employee Osborn
whose figures was she believing. Employee Osborn did not
reply, and Sterling left her with the comment that Cripe
was just a high-priced salesman.
Employee Carolyn Hickman, a 7-year employee who had
worked throughout the shop and for the past several years
performed the office, clerical, and other functions that kept
her in constant touch with supervision and employees,
testified that Plant Manager Kaleemuddin engaged her in
conversation about the Umon in his office in January 1974,
asking if she had heard any rumors about the Union.
Employee Hickman answered that she didn't want to get
mixed up in it, to which Kaleemuddin replied, she said,
that she should take an interest and should work against
the Union in order to protect her job. He talked at some
length against the Union, employee Hickman said, and she
spoke up at one point saying her husband had been a
union member for 30 years and he had told her the unions
were not all good but had done good in this country.
A short time later, according to employee Hickman,
Plant Manager Kaleemuddin called her attention to a local
newspaper article in which he said it was reported that the
union at the nearby Hyster's plant, whose employees were
on strike in sympathy for employees at a Kewanee plant,
had ordered its members to pay $5 each in support of the
Kewanee plant strikers. Employee Hickman testified that
she corrected Kaleemuddin, saying she had read the
newspaper article and it said that the Hyster employees
voluntarily voted to make the payment and were not
forced to pay by the union.
Just prior to the election Vice President Sterling asked
employee Hickman if she had any questions about the
Union, said Hickman, and she answered no.
Employee Joyce Humphreys testified that several times
in the January-March 7 preelection period Plant Manager
Kaleemuddin and Vice President Sterling, separately,
talked to her about the Union, particularly Kaleemuddin.
According to employee Humphreys, Kaleemuddin asked
her what can the Union do for you if it gets in. He
reminded her, she said, of union strikes and lack of income
during strikes, that the Union charged dues and could levy
fines against employees, and that the plant did not have to
stay in Covington but could be closed down or moved.
Employee Humphreys, who was openly prounion and wore
union buttons, reading "vote yes" and displaying the
Union's initials, said that after some of these conversations
she told Plant Manager Kaleemuddin that he was not
changing her mind and she saw no reason to talk further.
He persisted however, according to employee Humphreys,
the object of discouraging the Umon.
ii Employee Larew further testified that she came back to work after the
surgery on April 15, and did miss some work since then, but was still
employed
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and said to her after the election that he had persisted
because he thought she was smart enough to know that the
Union couldn't do anything for the employees in this (the
Dynacor) plant.
About 3 weeks after the Board-conducted election of
March 7 (at which the Union lost and where employee
Humphreys had served as union observer), Vice President
Sterling and Plant Manager Kaleemuddin conducted
individual interviews of various of the sewing machine
operators and inspectors at the plant for the purpose, said
Sterling , of learning what the girls wanted and what needed
changing . Employee Humphreys was among those inter-
viewed on March 27, and she said her talk with them took
over an hour. Humphreys testified that the employees were
being asked their opinions about improving the plant and
that Sterling asked her if she had a list . Employee
Humphreys said she did and produced a list, and
proceeded to discuss such things as low piece rates, the
need for weekly pay, and the need for a plant air filter
system . Sterling lectured her for presenting "what the girls
wanted ," stating that she didn 't represent them , and that he
did not want to hear what they wanted but what she
wanted . He told her, said Humphreys, that he had fired
employee Carolyn Hickman and Floorlady Auter on the
previous day, whereupon Humphreys said she didn't care if
he fired her too. His reply was that most women in the
plant were not like her , they depended on the one
paycheck and didn't have two paychecks, as in her family.
Sterling added that , if the Union had gotten in, he wouldn't
be concerned about hurting the girls , all he could think of
was to fight the Union and win; and, if there was any hint
of trying to organize a union again in the plant, any
employees involved would be fired at the first hint, and
Humphreys would be among the first if she was one of
them.
Vice President Sterling did not deny his involvement in
the conversations with the employees antagonistic to the
Union or the employees ' descriptions of the conversations
(except the threat to fire Humphreys if she brought the
Union in); indeed he conceded on cross-examination that
he spoke to employee Humphreys and others in the plant
about the Union, that he told them Dynacor didn't need a
union, and that he persisted in talking on the matter even
when employees indicated they did not want to discuss it.
He also admitted that Floorlady Auter advised him to stop
talking to the ladies during the preelection campaign and
that he didn't listen to her.
Plant Manager Kaleemuddin likewise admitted having
the various conversations with the employees concerning
the Union attributed to him, but claimed that compositely
they were along the (somewhat self-contradictory ) line: we
don't need a union in our plant, but make up your own
mind, don't let someone else make a decision for you.
In my view, the foregoing testimony of the employee
witnesses was in good measure substantiated by Respon-
dent's two management witnesses , Sterling and Kaleemud-
din, and I do not credit the portion of the testimony, or
denials , by either of the two attempting to shade out the
coercive aspects of what was said to the employees . In this
regard, not only is the credibility of Sterling and Kalee-
muddin subject to question, as indicated under section C,
supra, but the testimony of the employees is largely entitled
to added support because (with the exception of two of
them) they were in the vulnerable position of current
employees testifying adversely to their employer, Davis
Food City, Inc., 198 NLRB 94 (1972).
As already set out in section C,3, above , the flow of
company literature hostile to unionization of the plant
continued in the postsettlement period to the time of the
representation election , March 7, 1974.
2. Discharge of employee Hickman
Employee Carolyn Hickman came to work for Respon-
dent in August 1967 and was discharged on March 26,
1974. In her approximately 7 years as an employee she had
done just about every kind of work that is performed in the
Dynacor sewing plant , including working on the sewing
machines , button machines , and tackers , inspecting,
shipping, and office work . In the last several years of her
work employee Hickman had moved into doing all of the
so-called office work which was a complex of preparing,
distributing, and keeping records of work tickets, job
writeups, price changes , and the data and documentation
by and with which the supervisors and employees on the
production floor and in the several departments func-
tioned.
Based on the combined testimony of Vice President
Sterling, Plant Manager Kaleemuddm , employee Joyce
Humphreys, and employee Hickman herself, Hickman's
office work included filling out the piecework tickets that
went with each job to indicate instructions or operations to
be performed and the piece rates, preparing and keeping
up-to-date the writeup pages of the cost books (there were
eight books) which describe each operation on various
garments and the piece rate assigned to each operation and
from which the piecework tickets are prepared, preparing
and distributing timework papers; typing the bills of lading
for all shipments, purchase orders , employee timecards and
personnel records, and letters , including letters for Sterling
when he came to the plant; running the mimeograph
machine , which entailed among other things, running off a
regular supply of piecework tickets and labels , including
shipping labels; distributing to production employees
bobbins , threads, labels , and other work accessories, and
maintaining inventories of such accessories ; checking
employee timecards and daily attendance; and driving the
plant station wagon for miscellaneous supplies , for print-
ing, for payroll, or to deliver persons to airport or hospital.
Hickman's desk was outside the office close to the sewing
machines and she also answered the telephones when in or
near the office.
When employee Hickman first started on the office work
there were no records on the employees or records of tax
forms filed, and she set up, first , a notebook system on this
data, later supplanted by a card file which she maintained.
Sometimes information on price changes did not reach her
until after work tickets had been issued, requiring that she
go into the cutting room and remark tickets with corrected
prices in bundles ready for work . Keeping these changes in
prices currently marked on the writeup pages of the cost
books was a function requiring constant attention because
of frequent changes , and to meet the needs for speed and
DYNACOR PLASTICS & TEXTILES DIV. OF MEDLINE INDUSTRIES 1415
the press of other work, the changes were as often as not
inked in with pen rather than typed. The project that Vice
President Sterling wanted Hickman to do, namely to retype
and keep typed the writeup pages of the cost books, did not
receive her constant attention and frequently said Hick-
man, was laid aside in order to keep up with the essential
and pressing daily and hourly production problems.
Nevertheless, Hickman testified, she kept these records up-
to-date in 1972, 1973, and 1974 sometimes by retyping of
sheets and changes and sometimes by pen and ink
changes.12
Employee Hickman testified that she did not sign a
union card or attend the union meetings or ask others to do
either, but that on March 5, 1974, 2 days before the
election she went outside the plant where Union Repre-
sentative Cripe was distributing union literature, got from
him several copies of the handbill he was giving out,
brought them back into the plant, and handed them to girls
who asked for them, keeping one for her own reading.
Cripe testified that she had volunteered to distribute the
handbill to employees who had not seen it and he gave her
several pieces to take back into the plant.
Employee Hickman further testified that she did not
work for or against the Union but that she said things that
could have been interpreted as favoring the Union. There
were indicia, already noted under the previous heading,
that Plant Manager Kaleemuddin believed she was a
supporter of the Union, among other things warning her to
get involved and work against the Union to protect her job,
learning that her husband was a long-time union member
and that she subscribed to his views that unions were not
all good but had done good generally in the nation, and her
defense against Kaleemuddin's verbal attack on the union
at the neighboring Kewanee plant-all of which events
Kaleemuddin admitted happened.
The circumstances of employee Hickman's discharge
shortly after the March 7 election provided evidence that
Vice President Sterling also shared Plant Manager Kalee-
muddin's belief that employee Hickman was a supporter of
the Union. Sterling called her to a meeting on March 26,
1974. There was no disagreement between them on what
was said. In the presence of Plant Manager Kaleemuddin
and Floorlady Turner, Sterling told employee Hickman,
that he had to let her go because she didn't seem to want to
grow or to exercise authority over the girls. Hickman
replied that she didn't know she had authority over the
girls, that there never had been an indication to her about
advancement, and that she was satisfied with her job.
Sterling said he felt badly about having to drop her, that
12 Notwithstanding this multitude of duties under the heading of office
work, Vice President Sterling claimed employee Hickman spent a part of
her time , though less than in earlier years, operating a sewing machine, and
Plant Manager Kaleemuddin testified in the January 1974 representation
hearing , according to employee Humphreys, that employee Hickman spent
10 percent of her time as a sewing machine operator . Kaleemuddin also
thought it was Hickman 's function to keep and store samples prepared for
customers but Hickman pointed out that the pattern maker , Moody, kept
and stored the samples.
is There was evidence that after her discharge , the work that employee
Hickman had been doing alone, was spread among at least four employees
(Peelman , Thompson , Karushis , and Newell).
i4 Plant Manager Kaleemuddm said that he blamed employee Hickman,
when Vice President Sterling chewed him out because the stock items cost
book sheets had not been completely retyped. Nevertheless , shortly
she was a real good worker, and that he would give her a
very good recommendation for a job elsewhere. Hickman
asked if she could be transferred back to the shipping or
inspecting department, where she had seniority over any
one of the employees in those departments. Sterling said
no. Hickman commented that she didn't think Sterling was
giving the real reason for letting her go.
At trial, Vice President Sterling admitted that he had not
given employee Hickman the real reasons for her discharge
and for his refusal to transfer her to other work in the shop
where she was experienced as well as senior . Conceding
that she had had a great many duties, as enumerated
above, in the job from which she was fired, 13 Sterling
claimed that he fired her because in the last 3 years she had
not been doing a good job. There was no record of
complaints against employee Hickman or that she was told
she was doing a poor job, and Sterling based his claim (of a
poor job done over the last 3 years) on his request to her, at
the end of 1973 or the beginning of 1974, to retype all of
the writeup or cost sheets of the regular stock items book,
which sheets, as already noted, were being kept up to date
with pen and ink changes usually by her ( and sometimes
by Plant Manager Kaleemuddin or Floorlady Turner when
Hickman's time was needed for pressing daily production
requirements). 14 Hickman pointed out (to both Sterling
and Kaleemuddin) that she didn't have the time to do all
the retyping of pages entailed by every price change as it
occurred; that if she had to retype a page everytime one
item was changed it meant typing over the same pages
several times , and if she did this she'd never get done what
she had to do to keep up with shop production. She
volunteered to work several nights, after dinner, to see if
she could catch up and meet Sterling's request, and he
agreed. Employee Hickman put in 52 hours overtime in
February and 9-1/2 hours in early March 1974, when
Sterling told her not to overdo the overtime and she
stopped. Employee Hickman testified that she got a start
on retyping the stock items piecework cost book in the
overtime, but did not finish because she had to spend part
of the overtime in getting the production piecework tickets
ready for the next days' current orders to keep ahead of the
cutting room. (Sterling said he didn't know what work
employee Hickman did in the overtime.) 15
Employee Hickman testified that in February 1974, at
Vice President Sterling's request, she had begun doing
work for the Detroit Kuttenauer plant at the Covington
Dynacor plant, making cost sheets and piecework tickets
for Detroit which would also become the style of paper
work to be used at Covington. At the end of February or
thereafter Sterling added to employee Hickman 's already heavy work load
by having her do work for the Detroit Kuttenauer plant, see infra
is Vice President Sterling said that he had to have the retyped book for
use in converting the Detroit Kuttenauer plant , acquired at the end of 1973,
to the style of operation at the Dynacor plant . However it was not until
almost a month after the discharge of employee Hickman that he caused to
be assigned to a recently hired clerk-typist, Joyce Peelman, the job of
retyping the stock items cost book , and had her doing only that in a 2-week
period until the retyping of the book was completed at the end of April
1974, according to Peelman . Peelman noted that the pen and ink changes
continued to be made in the cost books , not by her, but by the supervisory
personnel who have taken over the production-related functions formerly
performed by employee Hickman . Perlman retyped only the one book, not
the other seven cost books.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
early in March, Vice President Sterling asked her if she
would be willing to go up to Detroit for a period of time to
help set up the Kuttenauer books, and suggested she
discuss it with her husband, and if he agreed to her going,
she would fly up to Detroit and fly back when the job was
completed. Sterling told Hickman that there would be no
hard feelings if her husband decided against her going.
Hickman talked it over with her husband, who was against
her being away from home alone, and she so notified Vice
President Sterling. Sterling agreed that Hickman's testimo-
ny was accurate.
Vice President Sterling admitted that he gave employee
Hickman no explanation , at the time of her discharge, for
his refusal to transfer her to the shipping department as she
asked (rather than fire her), or to the inspection depart-
ment, where she had experience and seniority. At trial he
gave as his reason for the refusal to move her, that he
didn't think she would do better elsewhere in the shop, and
that he thought this was a downward move and contrary to
a company policy against moving people down and
retaining them. He provided no evidence of such a policy,
or that such a policy applied where the employee requested
the move, or that the move Hickman requested was indeed
a downward move. On the contrary, the only evidence
supplied indicated that the company moved retained
employees about from department to department, such as
employees Jean Montague and Mary Green, and, in
Montague's case , acceded to the employee's request to be
kept in the shipping department. Employee Hickman
herself had previously moved to and from the various
departments in her 7 years with the Company.
3. Discipline of employee Humphreys
Employee Joyce Humphreys worked in the sewing
department where she operated a single needle machine
and also did single needle hemming. She had worked over
a period of years for Respondent, with some breaks in
continuity.
Employee Humphreys was one of the activists for the
Union among the employees, who signed a union card,
attended the union meetings, wore the Union's buttons in
the plant, and served as the union observer at the
representation election of March 7, 1974. Vice President
Sterling and Plant Manager Kaleemuddin were aware of
her prounion sympathies and, as already described, spent
considerable time and effort in attempting to discourage
her from pursuing unionization of the shop. In addition to
what has already been described, Floorlady Auter testified
that employee Humphreys spoke out for the Union stating
that there should be somebody to help between the
employees and Plant Manager Kaleemuddin if the girls
were to succeed in getting the piece rates up to a living
wage. Auter said that, as a result, Vice President Sterling
and Kaleemuddin talked pretty rough or "dirty" to
employee Humphreys, and that she (Auter) was present on
one such occasion about 2 weeks before the election, after
Humphreys had asked if she could put up union literature
in the plant because antiunion literature was being put up
by another employee, and Humphreys was told she could
not put anything identified with the Union on anything in
the plant other than the union button she wore on her
person.
Floorlady Auter further testified that later, just prior to
the election, on an occasion when she was at employee
Humphreys' sewing machine, turning material for Hum-
phreys while she sewed, Vice President Sterling called her
(Floorlady Auter) into the office and told her to leave
employee Humphreys alone, "she thinks she's some kind of
god come to save the women." Sterling did not contradict
Auter's testimony.
After a union handbill of March 6, 1974 (G.C. Exh. 10),
noted for the employees, among other items, that a worker
was harassed to tears on the job by the boss (employee
Humphreys conceded at trial that she was the worker to
whom the item referred), Sterling attempted to talk to
Humphreys about it, and Humphreys told him, she said,
she didn't want to talk anymore she had heard enough lies
he had told about her. (Sterling, on the other hand, claimed
she made no reply, only smiled.)
Following the March 27 interview, when Sterling
reprimanded Humphreys for presuming to tell him what
the employees (rather than she) wanted for the shop, and
warned her against trying again to organize a union in the
shop, supra, on April 9, 1974, according to Humphreys, her
sewing machine was moved closer to the office window, by
about 10 feet. She asked why, and Plant Manager
Kaleemuddm replied, for the purpose of getting work to
her better. (Kaleemuddin said, at trial, that he concealed
the reason, but moved her 10 feet closer to the office
because she talked too much.) Three days later, on April 2,
employee Humphreys and employee Ardena Rush were
called into the office by Vice President Sterling, who
reprimanded them for talking too much. According to
employee Humphreys, Sterling said they talked 30 percent
more than any other women in the plant. Humphreys said
this wasn't so and told Sterling if he would explain how
much was too much she would stay under that amount.
Sterling said he replied, to keep it at a reasonable level.
According to Sterling he directed Plant Manager Kalee-
muddin to note the oral reprimand on the personnel cards
of the two employees, which Kaleemuddin did (Resp. exhs.
7 and 8). The personnel card system had been newly
inaugurated by Sterling in the fall of 1973, he said. The two
employees, Humphreys and Rush, were not apprised of the
card system or the notations on their cards. However,
Sterling issued a written warning signed by him on the
same day, April 12, to employee Humphreys, but not to
employee Rush. The warning told employee Humphreys
that her constant talking was disruptive to production and,
if it continued, disciplinary action would be taken (G.C.
Exh. 4).
Vice President Sterling claimed that he issued the written
warning of disciplinary action to employee Humphreys
(and not to employee Rush) because Humphreys had a
previous notation on her personnel card, put there at his
direction on January 28, 1974, noting a verbal warning for
alleged "progressively lower production performance."
Humphreys had not been told of this record notation. She
said she had a discussion with Sterling in mid-January
concerning 4 weeks (two in December, two in January) in
which she had received "makeup" pay, i.e. the difference
L)YNACOR PLASTICS & TEXTILES DIV. OF MEDLINE INDUSTRIES 1417
between the value of the work turned in at the piece rate
and the minimum hourly rate of $1.80. Humphreys said
she had explained to Sterling the two causes of the problem
in those 4 weeks, late revision of erroneous directions on
one batch of work requiring her to correct and rehem the
gowns, and a new folder attachment to her sewing machine
that was slowing down her production pace. Plant
Manager Kaleemuddin knew of this, she said, and in the
matter of the new attachment had told her, and she so told
Sterling, that she would be paid at her average if her
production dropped Employee Humphreys further testi-
fied that, at the tune, Sterling told her that he preferred an
increase in her piece rate rather than giving her makeup
pay.
Vice President Sterling conceded that employee Hum-
phreys was a good operator and that the foregoing was the
tenor of the discussion he had with her in January on the
matter of makeup pay. However, he did not inform her
that he was making a notation of a warning of
"progressively lower production" on her record.
Plant Manager Kaleemuddin testified that the written
warning to employee Humphreys on April 12, 1974, was the
first written warning to an employee issued by Respondent
at the Dynacor plant. Vice President Sterling testified that
he inaugurated the personnel card system with its notations
respecting employees' alleged misconduct at the end of
1973, because the number of employees had grown from 20
in 1971 to 90 in 1974, and that, with the addition of the 40
to 45 Kuttenauer plant employees in Detroit, he became
responsible to keep track of a total of from 125 to 135
people. Further, said Sterling, production had wilted in
December 197316 and an alleged study placed the cause on
girls walking about and talking on worktime, hence he was
pushing his supervisors to keep the wandering and talking
to a reasonable level, and besides, he added, employee
Joyce Humphreys was a special problem as the biggest
waster of time by talking and walking about.
4. Additional 8(a)(1) and (3) findings
The evidence has established that, notwithstanding its
settlement agreement of December 27, 1973, and the
undertaking not to interfere further with exercise by
employees of their Section 7 rights under the Act,
Respondent breached the settlement agreement by com-
mitting additional violations of Section 8(a)(1) and (3) of
the Act, in both the preelection and postelection period of
January-April 1974.
Respondent's management for the plant, Vice President
Sterling and Plant Manager Kaleemuddin, in the context
of stating that they didn't see why the employees wanted a
union , and vigorously opposing the organizing Umon,
continued to ask employees individually (Green, Osborn,
Hickman , Humphreys) why they wanted the Union, and
what good could it do for them, did they have questions
about the Union that they wanted the employer to answer,
and would they believe the Union's representations over
the representations of the employer. This questioning of
the employees violated Section 8(a)(1) because interroga-
18 Sales had dropped in December 1973 according to the personal
records Sterling kept , see fn 6, supra, but other than his statement that
production had wilted there was no such evidence On the contrary , Sterling
tion of employees concerning their union interest is
coercive and violates Section 8(a)(1) when the "probable
effect is to inhibit union activity," N.LRB. v. The Bin-
Dicator Company, Southern Electronics Co., 356 F.2d 210,
213-214 (C.A. 6, 1966); and the determination "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," Joy Silk Mills, Inc., v. N.L.RB., 185
F.2d 732, 743-744 (C.A.D.C., 1950), cert. denied 341 U.S.
914.
Likewise, Vice President Sterling and Plant Manager
Kaleemuddin renewed threats of economic reprisal against
the employees collectively (to Humphreys and Green) that,
if the Umon came into the plant, the plant could be closed
down or moved, that the women employees would lose
jobs, and that the company could reduce wages and
vacation pay; and threatened employees individually
(Hickman, Larew, Humphreys), that the employee must
work against the Union in order to protect her job, that the
employee would be fired for any future absence regardless
of cause because she lost some time on the day of the
Board representation hearing assisting the union represent-
ative at and after the hearing, and that the employee or
employees would be fired if she or they took part in a
future attempt to organize the plant. These threats of
reprisal violated Section 8(a)(1), see N.LR.B. v. Taber
Instruments, 421 F.2d 642, 643-644 (C.A. 2, 1970); Wausau
Steel Corporation v. N.LRB., 377 F.2d 369, 371-372 (C.A.
7, 1967); N.LR.B. v. Roslyn Bakeries, Inc., 471 F.2d 165,
167-168 (C.A. 7, 1972); and were violations with or
without proof that an employee was actually coerced by
the statements, Peerless of America, Inc. v. N.L.RB., 484
F.2d 1108, 1115 (C.A. 7, 1973).
Respondent's discharge of employee Hickman, shortly
after the representation election, was the discharge of an
experienced and competent employee who was performing
an increasingly wide range of duties in support of
supervisory production functions that brought her into
daily contact with the sewing room employees as well as
floor supervisors and plant management. The reason given
to her for the discharge (her alleged unwillingness to grow
or to exercise authority over the girls) was admittedly false,
and the changed reason assigned at trial (her alleged
incompetence) proved to be both a pretext and an
afterthought. Likewise the reason for Respondent's refusal
to transfer employee Hickman to other work in the shop,
for which she was a qualified and senior employee (as she
requested when told she was being fired), was a pretext and
afterthought.
Employee Hickman had not taken part in the union
activity of the plant employees, except the one in-plant
distribution of several union leaflets she made 2 days
before the election. However, she had refused to join the
plant supervisors in working against the Union notwith-
standing the threat by Plant Manager Kaleemuddin that
she might lose her job by not doing so, and she had given
other verbal indications of prounion leanings . The com-
testified in connection with the luncheon given to the employees , just prior,
that it was a reward for their outstanding and record production
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bined circumstances left the plant management with the
impression and belief that she was actively supporting the
Union.
In the light of Respondent 's strong union ammus , and its
shifting and untruthful reasons for the discharge of
employee Hickman and refusal to retain her in other
available work for which she was qualified, the inference is
inescapable that her discharge was motivated by Respon-
dent 's belief that she was engaging in union activities. A
discharge motivated by the employer's belief that the
employee was engaging in union activities , notwithstand-
ing the absence of actual participation , is a discriminatory
discharge within the meaning of Section 8(a)(3) of the Act,
N.L.R.B. v. Ritchie Manufacturing Company, 354 F.2d 90,
98 (C.A. 8, 1965); N.L.R.B. v. Clinton Packing Co., Inc.,
468 F.2d 953, 955 (C.A. 8, 1972); the "non-activity" of the
employee is not decisive , it is the motivation and conduct
of the employer that is tested, N.L.R.B. v. Hertz Corpora-
tion, 449 F.2d 711, 715 (C.A. 5, 1971). Respondent's
discharge of employee Hickman violated Section 8(a)(3)
and (1) of the Act, since it was an interference with
employee Section 7 rights as well as discriminatory.
Respondent 's written warning, April 12, 1974, of
disciplinary action against employee Humphreys was also
discriminatory and interfering action within the meaning
of Section 8(a)(3) and (1) of the Act. It was based not only
on Respondent's hostility to the Union but upon Respon-
dent's hostility specifically to Humphreys' union activities
and outspokenness on the need for a union even after the
election . Though another employee (Rush) participated in
the alleged offense of talking too much on the job, no
similar warning was issued to her . Compare , Hayes-Albion
Corporation, 195 NLRB 935, 936-937 (1972); Union
Carbide Corporation, 166 NLRB 441, 451 (1967). Respon-
dent's claim that the difference in treatment between
employees arose because employee Humphreys had a
previous oral warning of progressively lower production
was a distortion of an earlier discussion between Hum-
phreys and Vice President Sterling in January 1974, and
was based on a record of alleged warnings and discipline
that began to be kept by Respondent when the union
organization campaign began , without any plant rules or
guides , or any information disseminated to employees in
the matter of warnings or discipline or notices thereof. The
development and keeping of such a unilateral record,
concomitant with the Union's organizational campaign,
was itself an interference and restraint upon employee
union activities , in violation of Section 8(a)(1) of the Act.
Mississippi Tank Company, Inc., 194 NLRB 923, 925 (1972).
As these findings establish , the Regional Director was
justified in setting aside the settlement agreement of
December 27, 1973, and seeking the remedies , provided
herein , to correct Respondent 's unfair labor practices from
their inception in October 1973.
CONCLUSIONS OF LAW
1. By coercively interrogating employees concerning
their union interest , sympathies , and activities ; by threat-
ening economic reprisal including closing of the plant if the
Union came in or firings if employees persisted in union
organization; by granting special holidays, a free luncheon,
and a pay increase to dissuade employees from pursuing
their interest in the Union ; and by instituting and
maintaining , contemporaneously with the union organizing
campaign , a record of alleged oral reprimands of employ-
ees with the object of intimidating employees from
pursuing union activities , Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
2. By discharging employees Raisor and Hickman, and
by issuing a warning of disciplinary action against
employee Humphreys, because of their union or suspected
union activities and in order to discourage such activities
or union membership of its employees , Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
4. The unfair labor practices were committed in the
period October 1973-April 1974, and the commission of
many of them after the informal settlement of December
27, 1973, justified the action of the Regional Director in
setting aside the settlement.
THE REMEDY
In connection with the unfair labor practices, it will be
recommended that the Respondent
1. Cease and desist from its unfair labor practices.
2. Offer to reinstate employees Raisor and Hickman
with backpay from the time of discharge, backpay to be
computed on a quarterly basis as set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), approved in N.LR.B.
v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344
(1953), with interest at 6 percent per annum as provided in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962),
approved in Philip Carey Manufacturing Company v.
N.LR.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379
U.S. 888 (1964).
3. Rescind the disciplinary warning of April 12, 1974,
issued to employee Humphreys and expunge from her
personnel record any notation of the warning and the
notation of the alleged January 28, 1974, warning.
4. Post the notices provided for herein.
5. Because the Respondent violated fundamental em-
ployee rights guaranteed by Section 7 of the Act, and
because there appears from the manner of the commission
of this conduct an attitude of opposition to the purposes of
the Act and a proclivity to commit other unfair labor
practices, it will be further recommended that the Respon-
dent cease and desist from in any manner infringing upon
the rights guaranteed by Section 7 of the Act. N.LR.B. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); P. R.
Mallory & Co., Inc. v. N.LR.B., 400 F.2d 956, 959-960
(C.A. 7, 1968), cert. denied 394 U.S. 918; N.LR.B. v. Barra
Company, 353 F.2d 320, 323-324 (C.A. 5, 1965).
[Recommended Order omitted from publication.]