Springfield Garment Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 1, 1965

153 N.L.R.B. 1126 (N.L.R.B. 1965)

1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that the complaint herein be dismissed insofar as it
alleges that Respondent engaged in any conduct violative of Section 8(a)(1) of the
Act, other than as found above, and that Respondent violated Section 8(a)(3) and
(1) of the Act by discharge of Ernest Stephens and Clifton Mitchell.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees about their sympathies for or
activities on behalf of Local #405, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any other labor organization, engage
in surveillance of their union meetings or other concerted activities, make
remarks to them indicating that we have been watching and receiving reports
about their union meetings and other concerted activities, advise them that we
are not required to sign a contract with the above union after collective bargain-
ing, promise or give wage raises to induce them to forego union representation,
or threaten them with reprisals, including denial of wage raises and improvement
of working conditions, for the same purpose.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of any or all rights guaranteed to them by Section
7 of the Act.
All of our employees are free to become, remain, or to refrain from becoming or
remaining, members of the above-named union or any other labor organization.
BALTZ BROTHERS PACKING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material
Employees may communicate directly with the Board's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No.
534-3161, or 3507 Federal Building, 700 West Capitol Avenue, Little Rock, Arkansas,
Telephone No. FR 2-4361, Extension 512, if they have any question concerning this
notice or compliance with its provisions.
Springfield Garment Manufacturing Company and Amalgamated
Clothing Workers of America , AFL-CIO. Case No. 17-CA-
0479. July 1, 1965
DECISION AND ORDER
On April 16 , 1965, Trial Examiner Sidney S. Asher , Jr., issued his
Decision in the above -entitled proceeding , finding that Respondent
had engaged in certain unfair labor practices as alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision . The Trial Examiner further found that Respondent had
not engaged in certain other unfair labor practices alleged in the com-
plaint . Thereafter , Respondent and the General Counsel filed excep-
tions to the Trial Examiner 's Decision with supporting briefs.
153 NLRB No. 88.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1127
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's findings," con-
clusions,2 and recommendations,3 as modified herein.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Recommended
Order of the Trial Examiner and orders that Respondent, Springfield
Garment Manufacturing Company, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order.4
IIn affirming the Trial Examiner's 8(a)(1) finding based upon Respondent ' s job ap-
plication form, we do not pass upon the Trial Examiner's distinction that employees were
"requested" rather than "required" to answer the question , for the finding of a violation
is warranted in either situation in view of the coercive context of other unfair labor
practices , as found by the Trial Examiner . Respondent contends that the Trial Examiner
improperly credited the testimony of certain adverse witnesses as against the testimony of
the witnesses supporting Respondent's position It is the Board ' s established policy not
to overrule a Trial Examiner 's resolutions as to credibility unless the clear preponderance
of all relevant evidence convinces us that they are incorrect Such a conclusion is not
warranted here. Standard Dry Wall Products , 91 NLRB 544, 545, enfd 188 F 2d 362
(C A 3).
3 We agree with the Trial Examiner that Respondent did not violate Section 8(a) (3)
of the Act with respect to Ward. However, in reaching this conclusion , we do not ac-
cord the same weight as the Trial Examiner to the fact that certain known union adher-
ents were not alleged by the General Counsel to have been the object of unlawful
discrimination.
In view of our finding that Respondent violated Section 8(a) (4) by its harassment of
Collins because of her testimony in an earlier unfair labor practice proceeding and the
Order which we are issuing herein, we find it unnecessary to decide whether such harass-
ment was also violative of Section 8(a) (3).
3 Unlike the Trial Examiner , we find that Respondent counsel's persistent questioning
of Ward and Collins in the face of their refusal to volunteer information , and in the cir-
cumstances otherwise detailed in the Trial Examiner ' s Decision , constitutes coercion of
those employees in violation of Section 8(a) (1) of the Act as alleged in the complaint,
as amended . The Recommended Order of the Trial Examiner , which we are adopting,
are adequate to remedy this additional violation.
' The telephone number for Region 17, appearing at the bottom of the Appendix at-
tached to the Trial Examiner's Decision, is amended to read: Telephone No. 221-2732.
TRIAL EXAMINER 'S DECISION
On June 24, 1964 , Amalgamated Clothing Workers of America , AFL-CIO, herein
called the Union , filed charges against Springfield Garment Manufacturing Company,
Springfield , Missouri , herein called the Respondent . Amended charges were filed on
August 10 , 1964 . On August 31, 1964 , the General Counsel 1 issued a complaint
1 The term General Counsel refers to the General Counsel of the National Labor Rela-
tions Board and his representative at the hearing.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleging that on or about July 16, 1964 , the Respondent threatened an employee
with reprisals because of his union activities and his testimony at a prior unfair labor
practice hearing , that on or about June 27, 1964, the Respondent granted employees
wage increases for the purpose of discouraging union activities and membership; that
since January 1964 the Respondent has required employees to reveal their union
membership on its employment application form ; that in late July 1964 the Respond-
ent disciplined and harassed employees because of their union membership and
activities and because of their testimony at a prior unfair labor practice hearing; and
that on or about May 26, 1964 , the Respondent discharged employee Charles A.
Horsey, and since then has failed and refused to reinstate him because of his interest
in and activities on behalf of the Union It is alleged that this conduct violated Sec-
tion 8 ( a)(1), (3), and ( 4) of the National Labor Relations Act, as amended (61
Stat. 136 ), herein called the Act. Thereafter the Respondent filed an answer denying
the commission of any unfair labor practices , and alleging that Horsey was discharged
"for just cause unrelated to , or motivated by, any alleged union activity."
Upon due notice , a hearing was held before Trial Examiner Sydney S. Asher, Jr, on
November 4, 5, and 6, 1964 , in Springfield , Missouri . All parties were represented
and participated fully in the hearing . The General Counsel moved to amend the
complaint by adding an allegation that on or about November 2, 1964 , the Respond-
ent threatened employees with reprisals and intimidated them for refusing to give
Respondent statements concerning the issues herein The motion was granted. The
Respondent orally denied the allegation . The General Counsel requested that I take
official notice of the record in Case No . 17-CA-2413, which involved the same
parties and the same Trial Examiner as the instant case. The motion was granted.
At the close of the General Counsel 's case, the Respondent moved to dismiss that por-
tion of the complaint which alleged that on or about July 16, 1964 , the Respondent
threatened an employee with reprisals because of his union activities and his testimony
at a prior unfair labor practice hearing, and that portion which alleged that on or
about June 27, 1964 , the Respondent granted wage increases to employees. These
motions were granted. After the close of the hearing , all parties submitted briefs
which have been duly considered."
Upon the entire record in this case and in Case No. 17 -CA-2413, and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it is found that the Respondent is,
and at all material times has been, an employer engaged in commerce as defined in
the Act, and its operations meet the Board's jurisdictional standards; 3 and that the
Union is, and at all material times has been, a labor organization within the meaning
of the Act.
A. Introduction
As found in Case No. 17-CA-2413, the Respondent employs a total of approxi-
mately 450 employees at three locations in Springfield, Missouri. The two main
buildings are separated by an alley about 20 feet wide. The north building houses
one sewing line, the pressing department, a shipping dock, the cateferia, and general
offices. The south building houses the other sewing lines, the cutting room, and the
general manager's office. The shipping department is located in a separate building
approximately 11/2 miles away
So far as the record shows, the Respondent has never recognized or bargained with
any union as the representative of its employees. As far back as 1944 unions had
tried, without success, to organize the Respondent's employees. In 1959 the Union
lost an election conducted by the Board among the Respondent's production and
2 Tn his brief, the General Counsel urges me to reconsider and reverse my ruling dis-
missing the allegation of the complaint that the Respondent violated the Act by grant-
ing employees wage increases I have reconsidered the ruling and reaffirm it for reasons
stated at the hearing See Fetzer Television, Inc, 129 NLRB 660, at 6GS-669, enfd. 295
F 2d 244 (C A 6), cert denied 368 U S 953
3 The Respondent is, and at all material times has been, engaged in the manufacture and
wholesale distribution of men's nearing apparel at three buildings in Springfield, Mis-
souri The Respondent annually receives at its plants from sources outside the State of
Missouri materials valued at more than $50,000. The Respondent annually ships from
its plants to destinations outside the State of Missouri products valued at more than
$50,000.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1129
maintenance workers. In early January 1964 the Union began a renewed attempt to
organize these employees. On March 10 4 the Respondent received, from a sender or
senders not identified on the record, a telegram which read
YOU ARE HEREBY PUT ON NOTICE THAT THE FOLLOWING SHIP-
PING ROOM EMPLOYEES OF YOUR SHIPPING ROOM IN SPRING-
FIELD, MO. ARE MEMBERS OF OUR ORGANIZING COMMITTEE:
ALLEN CAREL, ROBERT J. WALKER, WANDA COLLINS, LINDA
DEWHIRST, LLOYD W. EVANS, JAMES R. PUTNEY, JAMES R. BARON,
JERRY L. WARD, RAY E. COWENS, JOHN E. MILLER, FLOYD R.
BURKS.
WE WILL INFORM YOU IN THE FUTURE, FROM TIME TO TIME, OF
ADDITIONAL SHIPPING ROOM EMPLOYEES ON SAID ORGANIZING
COMMITT [SIC]
SPRINGFIELD GARMENT SHIPPING ROOM EMPLOYEES ORGA-
NIZING COMMITTEE-AMALGAMATED CLOTHING WORKERS OF
AMERICA AFL-CIO 1627 LOCUST ST LOUIS MO
On April 9 the Union filed with the Board three representation petitions (Cases Nos.
17-RC-4461, 17-RC-4462, and 17-RC-4463) seeking to represent certain employees
of the Respondent in three separate units. To date, no elections have been held on
these petitions.
Meanwhile, on March 20, the Union had filed with the Board in Case No 17-CA-
2413 charges of unfair labor practices against the Respondent, upon which the
General Counsel issued a complaint on May 22. A hearing thereon was held before
me from July 8 to 15. Thereafter, on March 8, 1965, I issued a Decision in that case,
in which I found that the Respondent's officials became aware of the Union's cam-
paign almost from the beginning, that they opposed the unionization of the employees,
and that they did not conceal their opposition. I also found that:
1. In January a supervisor illegally directed an employee to spy upon the
union activities of other employees and to ascertain and report, if possible, the
identity of the employee who was working in the Union's behalf.
2. In February and March supervisors illegally interrogated several employees
regarding their own and other employees' union sympathies, affiliations, and
activities.
3. In April the Respondent made the working conditions of an employee
intolerable and forced her to leave her employment, thereby constructively dis-
charging her, in order to get rid of an active union adherent.
The Respondent filed exceptions to these findings, and the matter is now pending
before the Board. I also found that the General Counsel had failed to prove that the
Respondent committed other unfair labor practices alleged in the complaint. The
General Counsel filed exceptions to some of these findings. These exceptions are
also pending before the Board.
B. The employment application forms
1. Facts
Prospective employees are furnished by the Respondent with application blanks
which they fill out at the Respondent's office and leave with the Respondent. Job
applicants are not given any instructions as to how to fill out the application blanks.
The application form in use by the Respondent from at least 1959 until July 8 or 9,
1964, contained, among others, the question "Union- Yes- No" During the
first half of 1964, 226 applicants for employment were furnished with such forms,
filled them out, and left them with the Respondent. Of these, more than one-third
failed to answer the question about unions.
On or about July 8 or 9, 1964, the Respondent ceased using this form and since then
has been using a new form, from which the above-quoted union question has been
deleted.
2. Contentions of the parties
The complaint alleges, and the answer denies, that since January the Respondent
has "require[d applicants for] employment to reveal their union membership on the
employment application form." In his opening statement at the hearing the General
Counsel contended that the Respondent "on the application blanks required the
employees to state whether or not they were for the Union." During the hearing the
• All dates hereafter refer to the year 1964, unless otherwise noted.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel took the position that the Respondent had violated the Act merely
by requiring a job applicant to reveal his union membership on the application, and
alternatively , if it was not a per se violation , it was a violation here when considered
along with other unfair labor practices committed by the Respondent . The General
Counsel does not maintain , however, that the answers to the question were given
weight in respect to hiring applicants , or in any other personnel action. In his brief
the General Counesl states- "It is not contended that the question about union mem-
bership contained on the Respondent 's application blank is a per se violation of the
Act. It is, however, submitted that requesting applicants for employment to reveal
... their union membership . . . in the context of other violations falls within the
proscription ... of the Act." [Emphasis supplied.] The General Counsel 's brief also
points to the Respondent 's failure "to offer any believable or legitimate justification"
for the question 's presence on the application forms.
The Union , in its brief , acknowledges that the inquiry regarding union affiliation
"is not per se a violation of Section 8(a)(1)." It argues , however: "Considering the
use of this application in light of the Respondent 's numerous other unfair labor prac-
tices, the only probable impact of this question is the coercion of the applicant." It
also remarks - "Respondent 's attempt to justify the use of the question is not only
incomplete but also unbelievable."
The Respondent , in its brief , denies that it required applicants to answer the union
question , and argues that the mere presence of the question does not constitute a per
se violation of the Act.
3. Conclusions
It may be that the General Counsel, in his brief , abandoned his per se theory.
However, this is not clear . Therefore , lest the General Counsel's position be misun-
derstood , it is necessary to rule on the issue. It is found that the mere presence of the
union question on the application form does not constitute a per se violation of the
Act.5
As noted above , the complaint alleges that the Respondent required job applicants
to answer the union question. The record shows that the Respondent made no
effort to insist that this question be filled out , the form contained no admonition to
answer all questions , and an applicant 's failure to answer this particular question had
no effect on his employment eligibility. Indeed, of 107 new employees hired during
the first half of 1964 , 42 (approximately 40 percent ) had left the union question unan-
swered. In view of these facts, I conclude that the evidence does not support the
complaint 's allegation that an answer to the union question on the form was required
of job applicants . 6 Instead , it is found that applicants were requested to answer the
union question . However, I do not consider this difference a fatal variance between
complaint and proof.
The issue then boils down to this- Does an employer violate the Act by requesting
job applicants to answer such a question, or by using application blanks containing
such an inquiry , in the absence of proof that the answer was used in any discrimi-
natory or coercive manner ? The response given by the Board is yes , if the form is
used in the context of other unfair labor practices committed by the employer.? In
applying this principle to the facts of the instant case, it should be recalled that the
application form in question was in use all during the first half of 1964, and that it
has been previously found ( in Case No 17-CA-2413) that the Respondent engaged
in certain unfair labor practices in January , February , March, and April, 1964. And,
as further found in that case, the Respondent 's general manager made an antiunion
speech to some of the employees in March 1964 . Thus the application form was
being utilized at the very time the Respondent was campaigning against the Union and
also interfering with its employees ' rights under Section 7 o f the Act . It follows, and
I find, that the inclusion of the union question in the application blanks, under these
circumstances , violated Section 8 (a) (1) of the Acts
6Wayside Press, Inc. v. NL.R.B., 206 F. 2d 862, 864 (CA 9) ; Parkhurst Manufactur-
ing Company, Inc, 136 NLRB 872, 881, enfd 317 F. 2d 513 (C.A. 8) ; and Clark Print-
ing Compaiuj, Inc, 146 NLRB 121.
°For this reason Transamerican Freight Lines, Inc, 122 NLRB 1033, remanded 275
F 2d 311 (CA. 7), cited by the General Counsel, is inapposite here. See also Efco Corpo-
ration, 150 NLRB 1505.
7 Schott Metal Products Company, 128 NLRB 415, 430; and Clark Printing Company,
Inc., supra. See also D'Armigene, Inc., 148 NLRB 2.
8 Over the General Counsel's objection, I permitted the Respondent's general manager
to testify that if an applicant answers the union question affirmatively "it is a good sign
to us that they have experience " I now reverse that ruling and strike such testimony
as immaterial . The test of the legality of the Respondent 's conduct is neither the Re-
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1131
C. The discharge of Charles Horsey
1. Facts
The Respondent's cutting room has one employee known as a bundle boy. The
duties of a bundle boy include transporting bundles of pants from the cutting room
to the five sewing lines in the sewing department, by means of a cart, and stacking the
bundles at the designated sewing line in a prearranged sequence. It takes between
3 days and a week to train an average new employee in the duties of bundle boy.
Until May 12, 1964, the bundle boy had been Jerry Miller. On that date his job
was changed to that of spreader, and Charles Horsey (referred to in the complaint as
Charles A. Horsey) was hired to take over his duties as bundle boy. William E.
Blakely, the cutting room foreman, was the supervisor of both Miller and Horsey. He
directed Miller to teach Horsey the bundle boy's job. Miller did so.
On May 26, at lunchtime-between 11.30 a.m. and noon-a group of the Respond-
ent's employees was addressed by Union Representative George Ryan. This took
place in an alley adjacent to the Respondent's main buildings. Horsey attended this
meeting. After it was over, Horsey engaged in an individual discussion with Ryan
for a few minutes in the alley, and then returned to work at noon, the end of his
lunch period.
About 12:15 or 12:20 p.m., Blakely conferred with Grover McKinney (Joe Mac),
the Respondent's general manager. Blakely complained to McKinney about Horsey's
unsatisfactory work performance, stating: "I can't seem to keep him on the job."
Just then Miller was returning from the sewing room to the cutting room with an
empty cart. Calling him over, McKinney asked him "Jerry, why are you still taking
up work to the sewing room?" Miller replied that he had to keep the sewing lines
going, and that Horsey "didn't fully understand the ticket and he was a little slow."
In response to an inquiry as to what he thought of Horsey, Miller answered, "He just
didn't think [Horsey] was going to make it." Turning to Blakely, McKinney stated.
"There is your answer. He [Horsey] is fired." Miller protested. "Don't fire him for
any thing I have said" but McKinney responded either: "We are not, Jerry, we have
been having trouble with him," or that "they" had been watching Horsey and did not
think he had been able to take over the job. Blakely asked McKinney whether he
should give Horsey his check or send him to the office; McKinney answered: "Send
him to the office." 9 A few minutes later Blakely told Horsey that he was dissatisfied
with the way Horsey performed his work, and that Horsey was discharged.'° Horsey
was paid off and left. He has never returned to the Respondent's plants and has not
been offered reinstatement.
Horsey's separation notice, filled out and signed by Blakely on the date of the dis-
charge, states that Horsey was discharged because he "could not perform his assigned
duties efficiently. His work was below standard."
2. Contentions of the parties
The complaint alleges, and the answer denies, that the Respondent discharged
Horsey on May 26, and thereafter failed and refused to reinstate him, because of his
"interest in and activity on behalf of the Union." In support of this allegation, the
General Counsel maintains that Blakely saw Horsey conferring with Ryan at noon
on May 26, and discharged him within an hour because he suspected that Horsey was
an active union adherent, and that Horsey's alleged unsatisfactory work performance
was a mere pretext and subterfuge to cover up the actual reason for the discharge.
The answer alleges that Horsey was discharged "for just cause unrelated to, or moti-
vated by, any alleged Union activity." The Respondent's conduct at the hearing and
spondent's motive in including the union question on the application form nor the use to
which the Respondent ultimately put the answers. Rather "the test is whether the
employer engaged in conduct which, it may reasonably be said, tends to interfere with
the free exercise of employee rights " American Freightways Co., Inc., 124 NLRB 146,
147. To put it in other words, "It is the tendency of an employer's conduct to interfere
with the rights of his employees . . . rather than his motives, that in controlling "
Welch Scientxfc Co., Inc. v. N.L R.B , 340 F. 2d 199, 203 (CA. 2).
B The findings of fact regarding this conversation are based upon a synthesis of the
testimony of McKinney, Blakely, and Miller.
10 The findings of fact regarding this conversation are based upon a synthesis of the
testimony of Horsey and Blakely. Horsey testified that he refused to pull his timecard
and that, after an argument, Blakely did It for him Blakely denied that there had been
any disagreement as to the timecard , and testified that, upon ibeing told to do so, Horsey
took his timecard and punched out. I deem it unnecessary to resolve this conflict.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its brief indicate that it does not now contest the fact that Horsey was an employee or
that the Respondent discharged him on May 26, and since then has not reinstated him.
The only remaining issue is the motive for the discharge. The Respondent contends
that Horsey was discharged for cause; namely, the unsatisfactory nature of his work
performance. In addition, the Respondent in its brief maintains that the "General
Counsel has failed to meet the burden of proof because of the lack of any substantial
evidence that Blakely was aware of any Union activity by Horsey."
3. Conclusions
Admittedly, Horsey did not engage in any union activities before lunchtime on the
day of his discharge, nor is there any evidence that, prior to that time, the Respondent
suspected him of being a union sympathizer 11 The General Counsel's prima facie
case must therefore necessarily stand or fall on what transpired during the period of
time (less than an hour) commencing with Horsey's talk with Ryan and ending with
Blakely's discharge of Horsey.
There is no evidence that any management representative knew that a union meet-
ing was being held near the plants during lunchtime. On the day in question, between
11.30 a.m. and noon, McKinney and Blakely ate lunch in the plant cafeteria. As the
cafeteria is in the north building and the cutting room in the south building, Blakely's
route of return to the cutting room at noon necessitated that he cross the area between
the buildings, and he admitted doing so. Several witnesses for the General Counsel
testified that Blakely crossed this area just as Ryan and Horsey conferred a distance
away, and that Blakely could have seen them together. Blakely denied that he saw
Horsey or anyone he did not know. Evidence produced by the Respondent tended
to show that Blakely's view was probably obstructed in whole or part by parked cars
and/or by crowds of employees going to or coming from lunch I do not consider it
necessary to decide this issue; it will be assumed that on this occasion Blakely saw
Horsey talking to Ryan.
Wayne Cotter, a truckdriver employed by the Respondent, testified that on May 26,
shortly after noon, Horsey had returned to the cutting room after having talked
to Ryan; that Cotter was standing just inside the warehouse door; and that Ryan, the
only person in the alley, was just getting into his automobile preparatory to leaving.
According to Cotter, at this moment Blakely entered the warehouse, faced toward
Ryan, and asked Cotter who that was; Cotter replied that he could not recall his name,
and Blakely then left the warehouse; nothing was said regarding the Union, or a
union meeting or a union organizer. Blakely denied going to the warehouse between
the time he finished lunch and the time he discharged Horsey. He further denied
having a conversation with Cotter or asking Cotter: "Who is that man?" I do not
feel called upon to resolve this conflict in the testimony; it will be assumed arguendo
that the conversation took place substantially as related by Cotter.
In this posture of the case, the most that the General Counsel has shown regarding
the Respondent's knowledge of Horsey's union activities is that (1) Blakely may
have seen Horsey talking to someone he (Blakely) did not know; (2) Blakely might
have been curious enough about the matter to ask Cotter the identity of the person
talking to Horsey, and (3) if so, Cotter could not or did not enlighten him. The
General Counsel's brief argues. "Blakely ... attempted to discover Ryan's identity
by questioning at least one employee This being true, it is not unreasonable to infer
that Blakely carried out his expressed intention and was able to determine the identity
of Ryan." But it is not enough merely to point out one inference as "not unreason-
able." For it would be equally reasonable to infer that Blakely, frustrated in his
attempt to obtain identification of the stranger to whom Horsey was talking, for one
reason or another decided to let the matter drop. The most that can be said for the
General Counsel's proof is that it is ambiguous and inconclusive And it does not
help his case to prove, as he did, that McKinney knew Ryan by sight, for the record
is devoid of any intimation that McKinney ever saw Horsey in Ryan's company, or
that he knew that Ryan was even in the vicinity of the plants on May 26.
For the reasons set forth above, I am convinced that the record falls short of estab-
lishing facts from which it can reasonably be inferred that any management repre-
sentative learned of of suspected that Horsey attended the Union's meeting or there-
after talked to Ryan. It follows that the General Counsel has failed to prove com-
11 On his employment application , Horsey had left blank the question , "Union Yes -
No. -.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1133
pany knowledge , an essential element of a discriminatory discharge ; 12 no prima facie
case has been presented that Horsey 's discharge was in any way related to the interest
he took in the Union I therefore deem is unnecessary to explore the Respondent's
defense that Horsey was discharged for cause.13
D. The alleged harassment of Ward
1. Facts
Jerry Ward began working for the Respondent in the fall of 1963 as a scaler in the
shipping department . Sometime before July 1, 1964, Ward received a wage increase
of 10 cents per hour. The utility man quit either in February or during the first week
of June, and Ward was given this job. The duties of a utility man are to help unload
the truck , run errands , sweep the floor, and help in sizing out and gadget work when
needed On one occasion in June, Ward was ordered to clean the men's toilet. On
July 30 he was assigned to gadget work , which consists of attaching tags to the pants,
inserting combs in the pockets, and similar work . On that day Ward was tagging
pants at one table, and two other employees-Larry Fowler and Wanda Collins-were
performing the same task at another table. Jason Brown , shipping department
foreman, handed each of these three employees a mimeographed sheet headed
"Employee Disciplinary Report" which stated that each was being issued a warning
(offense No . 1) for failing to speed up your work ." Brown requested each of the
three employees to sign his particular disciplinary report, and each did so. Pre-
sumably each report was then placed in the personnel file of the affected employee.
Since July 30 Ward has been assigned to do gadget work a number of times.
2. Contentions of the parties
The complaint alleges, and the answer denies, that in late July 1964 the Respondent
"discipline [d] and harass [ed] employees because of their membership in and activity
on behalf of the Union ." In this brief the General Counsel contends that Brown
assigned Ward "unpleasant tasks" (namely, cleaning the men's restroom , running
errands , and doing gadget work ) 14 "for the purpose of discouraging union activity"
and further harassed him by requiring him to sign a disciplinary report "for the pur-
pose of discouraging union activity . [and] to make it `rough' on the Union
adherents ." The General Counsel maintains that such conduct violated Section
8(a)(1) and ( 3) of the Act.
The Respondent denies that it discriminated against Ward. On the contrary, it
insists that it required him to do "no more than other employees were required to do."
Furthermore , the Respondent contends : "There is no competent evidence that .. .
Ward [was a ] member of the Union or actively supporting it. There is a complete
lack of evidence that Brown knew of or suspected any such activities."
3. Conclusions
The contention that the Respondent violated Section 8 (a) (1) and ( 3) of the Act in
its conduct toward Ward is, of course , premised on the proposition that the Respond-
12 N L P B. v Ace Comb Co and Ace Bowling Co., Division of Amerace Corp , 342 F 2d
841 (CA. 8 ) ; Beaver Valley Canning Company v. N L R . B , 332 F . 2d 429 , 433 (CA 8) ;
Skyline homes , Inc. v. N.L.R.B., 323 F 2d 642 , 645 (C A 5 ) , Douglas and Lomason Com-
pany, 151 NLRB 616 , Laboratory Equipment Corporation ; et al., 146 NLRB 1247;
The J. S. Dillon it Sons Stores Co., Inc., 144 NLRB 1235 , 1241, enforcement denied 338 F.
2d 395 (C A. 10) ; Tennessee Packers, Inc, Frosty Morn Division, 143 NLRB 494,
508, enfd 339 F. 2d 203 ( CA. 6) ; Phoenix Newspapers , Inc., 142 NLRB 827; Wonsan
Concrete Company, Inc., 142 NLRB 33; Diamond Ginger Ale, Incorporated 125 NLRB
1173 ; and Hadley Manufacturing Corporation , 108 NLRB 1641, 1650.
11 N L R B v. T . A. McGahey, Sr, et al., d/b/a Columbus Marble Works , 233 F . 2d 406,
412-413 ( C A 5) ; Laboratory Equipment Corporation, et al, supra ; Lawson M2l7/ Com-
pany, 136 NLRB 538 , enfd in part 317 F. 2d 756 (CA 6), at 546 in the Board 's opinion
and at 760 in the court 's opinion ; Wausau Concrete Company, Inc, supra, 35, espe-
cially footnote 5 of the Intermediate Report; Tennessee Packers, Inc, Frosty Morn Di-
vision, supra ; The J. S. Dillion it Sons Stores Co., Inc , supra , and Douglas and Lomason
Company, supra
14 The General Counsel contends in his brief that "Brown assigned Ward the job of
'gadget girl ' . . . with full knowledge that the other boys in the department were ridicul-
Ing him about doing a girl 's job."
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent knew of, or suspected, that Ward was engaged in prounion activities. There is no
probative evidence that Ward ever solicited or engaged in any other activities in sup-
port of the Union, that he signed any union application card, or that he even attended
any union meeting. The General Counsel relies entirely upon the fact that Ward's
was 1 of 11 names contained in the telegram which the Respondent received on
March 10, as establishing the fact that the Respondent suspected Ward of prounion
leanings. The Respondent apparently disputes that a telegram received from an
unidentified source could have such an effect; it further argues that Brown did not
know of the telegram's existence and therefore could not have been motivated by it.
For the purpose of shortening this Decision it will be assumed, arguendo, that the
receipt of the telegram planted in the minds of Respondent's officials (including
Brown) the seed of suspicion that all 11 employees named therein were adherents of
the Union.
It does not follow, however, that this explains the Respondent's alleged harassment
and discriminatory treatment of Ward. In the first place there is too great a lapse of
time. The General Counsel has failed to come forward with any explanation of why
the telegram did not result in any discrimination against Ward until, as alleged in the
complaint, "late July," more than 4 months after its receipt. But that is not all. In
early July three employees named in the telegram testified as witnesses for the
General Counsel at the hearing in Case No. 17-CA-2413; Eldon Miller and James
Robert Baron , Jr., each testified that he had signed a union application card, and
Floyd Burks testified that he had attended a union meeting. Even with such positive
testimony of union activities of these three employees known to the Respondent, the
General Counsel does not contend that any of these three was discriminated against.
Yet he would have us believe that the Respondent, on mere suspicion, discriminated
against Ward, who after all was only 1 of 11 employees named in the telegram
Surely, if the Respondent desired "to make it `rough' on Union adherents" this was a
strange way to accomplish such a result.i.i I am therefore convinced that the pro-
bative evidence shows no causal connection between the receipt of the telegram on
March 10-the only possible source of suspicion that Ward was supporting the
Union-and the alleged harassment of Ward in late July. It follows, and I find, that
the General Counsel has failed to establish that the alleged discrimination against
Ward, if indeed it existed, had any relation to suspected union activities. Accord-
ingly, it is unnecessary to determine whether Ward was in fact harassed or otherwise
discriminated against by the Respondent.
E. The harassment of Collins
1. Facts
Wanda Collins applied for work on January 8 and answered the question on the
application blank "Union: Yes - No _" in the negative. She was hired by the
Respondent a few days later to work in the shipping department doing gadget work.
About 5 weeks after Collins began working for the Respondent, Brown (her imme-
diate supervisor) told her that he was giving her "two weeks' notice" because she
was "too slow." About a week later McKinney asked her if she wanted another
chance. When she replied that she did, McKinney rescinded the 2-week notice.
Except for a temporary interruption due to illness, Collins has worked in the
Respondent's shipping department ever since.
Collins was among the 11 employees whose names appeared in the telegram which
the Respondent received on March 10. On July 8 Collins testified as a witness for
the General Counsel at the hearing in Case No. 17-CA-2413.
As to how Brown treated Collins after July 8 there is a conflict . Collins testified:
"Jason [Brown] kept jumping me and everything I would do Jason was jumping me."
She further testified that on one occasion when she was checking and had nothing
to do with gadget work, Brown "bawled [her] out for something the [employees work-
ing on] gadgets had done." Collins also testified "the first time Jason ever got on
15 Compare N L.R B. v. T. A. McGahey, Sr., et al., d/b/a Columbus Marble Works, supra,
where the court said, at page 412: "There is no substantial proof which would warrant
an inference that this employer . . . would reach down and pick out two such obscure
[in the union movement] figures . . . . To fire [them] would serve as no example to the
others." See also N L.R B. v. Aiuiso Industries, Inc., 313 F. 2d 858, 863 (C A. 7) : "It
is also significant that the chairman of the organizing committee was never laid off, and
three of the committee members who had been laid off were recalled . . . . There is no
evidence in the record as to why Respondent would single out these five committee mem-
bers for discriminatory practices. Their union activities were not shown to have been
more extensive than the activities of any of the other committee members."
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1135
me was the Saturday after I had testified ... and from that time on he was constantly
on me." Specifically, Collins testified that before July 8 Brown had only criticized
her work performance once-when he gave her 2 weeks' notice in February, as
described above. But according to Collins' testimony, after July 8 Brown "told me
my work was sloppy or careless or I was fiddling around or was not going fast
enough, or things on that order" and that this took place "one, two, three times a day.
Sometimes it varied, maybe not that many maybe more." According to Collins,
3 or 4 days after she testified in the earlier case, Brown told her that she and Fowler
were talking too much, and sent her to one end of the table and Fowler to the other,
but failed to reprimand other employees who were talking.
On July 30, as described above, Brown handed to Collins, Ward, and Fowler writ-
ten disciplinary reports "for failing to speed up your work."
Prior to July 30 Collins had spent a good deal of time on gadget week, although
from time to time she was assigned to other tasks. After July 30 she was taken off
gadget work and assigned to working on returns for about a week. From there she
was assigned to scaling for a period which she testified was about 2 weeks. Then
she was transferred to working on imperfect or defective pants, referred to as B-2
seconds. Collins testified that this assignment lasted about a week. After that
Collins worked on returns for a few days and was finally put back on gadget work.
All these job assignments were within the shipping department, and no change in
assignment affected Collins' wages or hours.
Fowler testified that he worked with Collins on gadget work during the last half
of July and the first 2 or 3 weeks of August. He testified: "She could do three to
my two when we had a stack of pants," but that Brown complained to Collins "two
or three times a week" that she was not fast enough, while at the same time Brown
only criticized Fowler once.
By way of defense, Brown testified that Collins was not treated in any different
manner than were other employees. He further testified that in June-before Col-
lins testified in the earlier case-she began working "in slow motion. It didn't seem
like she was trying." Accordingly, Brown told her late in June and again early in
July that she should "work faster." He admitted moving Collins and Fowler to
different tables but testified that he did so "to keep them from talking and laughing
too much." He denied reprimanding Collins several times a day, but admitted doing
so from three to five times over a period of 3 or 4 weeks. Brown further testified
that the written reprimands of July 30 were precipitated by the conduct of Ward,
Collins, and Fowler flipping plastic clips at one another. He also testified that
Fowler was "just about" as fast a worker as Collins. With regard to the length of
time he assigned Collins to certain jobs in August, Brown's testimony conflicted with
that of Collins. Brown denied that he assigned Collins to scaling as her primary
duty for an entire week, testifying that she did not perform such duties for more than
4 hours in any single day. He also denied assigning Collins to work on B-2 seconds
exclusively for a week.
Like Brown, McKinney testified that Collins' work performance "got progressively
worse" after the first part of June.
2. Contentions of the parties
The complaint alleges, and the answer denies, that in late July 1964 the Respond-
ent, through Brown, "discipline[d] and harass[ed] employees because of their mem-
bership in and activity on behalf of the Union, and because of their testimony at a
prior unfair labor practice hearing." Specifically, the General Counsel seems to
contend that the harassment of Collins took the form of repeated and unwarranted
criticism of her work and conduct by Brown,16 the written warning slip given Collins
on July 30, and certain job assignments thereafter to more arduous or less desirable
work tasks; namely, scaling and working on B-2 seconds. The General Counsel does
not, however, maintain that working on returns was more arduous or less desirable
work.
'The General Counsel introduced evidence that in August McKinney told Collins:
"Wanda, I want you to do a little less talking and a little more work Is that all right""
There was further testimony relating what transpired thereafter between McKinney and
Collins, some of which McKinney denied. As the harassment of Collins described in the
complaint is alleged to have been accomplished through Brown alone, the General Coun-
sel's purpose in putting in evidence of McKinney's conduct toward Collins is not clear.
The General Counsel's purpose is further obscured by the position he took at the hearing
that he did not contend that McKinney's statement to Collins constituted a threat I
therefore do not feel called upon to comment further upon this evidence.
1136 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
The Respondent, denying any harassment of Collins, maintains that the warning
slip of July 30 was merited because of "horseplay" and "violation of work orders"
by the three employees involved. As to the work assignments given Collins, the
Respondent denies that either scaling or working on imperfect garments was unde-
sirable or burdensome work, and furthermore maintains that the assignments were
in line with the Respondent's policy of shifting around employees of the shipping
department as needed. Finally, the Respondent contends that "to suppose that
Brown's disciplinary action was so motivated [because Collins had testified at the
earlier hearing] would be the grossest speculation."
3. Conclusion
Let us turn first to the question of Collins' prior testimony. As related above, on
July 8 she testified as a witness for the General Counsel in the previous case. She
was 1 of 11 employees of the Respondent who did so, of whom 5 (including Collins)
were in the shipping department But her testimony differed from that of the others
in an important respect: she was the only witness called by the General Counsel
with regard to an allegation that Brown had violated the Act by engaging in surveil-
lance of union activities. Her testimony in this respect was controverted in part by
that of Brown.17 In sum, Collins alone among the witnesses gave testimony against
Brown, and was contradicted by Brown on the witness stand. This being so, it seems
to me to be a fair inference, and I find, that Collins thereby stood out from the others,
and became a natural target for Brown's displeasure.
Now let us explore the General Counsel's contention that Collins' assignments after
July 30 to scaling and to working on defective trousers were discriminatory. To
show that these were more arduous or less desirable tasks than, say, gadget work or
working on returns, Collins testified that to scale efficiently the scaler might carry
on her arm as many as 15 pairs of pants at one time, and that scaling was performed
more frequently by male employees. She further testified that working on rejects
was unpleasant because the B-2 trousers were sometimes damp and buggy. How-
ever, the record shows that the average weight of a pair of pants is less than a pound,
and that other female employees had been assigned to scaling from time to time.
Moreover, Maxine Nivens and Joyce Abbott, employees of the shipping department
who had also worked on rejected pants, denied that there were any bugs in the B-2
seconds. In this respect I credit their testimony as more accurate than that of Collins.
Nivens further testified that among those who had worked on imperfect trousers was
Mary Brown, Jason Brown's wife. In view of these facts I am not convinced that
the record demonstrates that either scaling or working on rejects was more arduous
or less desirable than, other work assignments in the shipping department.
However even if, contrary to the above, scaling and working on seconds should
be considered burdensome or unpleasant, there is still no persuasive evidence that
Collins was discriminated against in work assignments after July 30. For she was
also assigned, during that period, to working on returns, working on gadgets, and
checking-tasks which the General Counsel does not claim to be burdensome.
Furthermore Collins was not singled out for these tasks; other female employees of
the shipping department were assigned to scaling and to B-2 seconds from time to
time. Moreover the record establishes that in the shipping department job assign-
ments are customarily shifted around to meet exigencies as they arise, and that July,
August, and September were busy months in that department. Early in August the
Respondent hired three temporary employees who were assigned to gadget work,
which does not require much skill and training. This released more experienced
gadget girls, such as Collins, for other work (such as working on returns, working
on rejects, and scaling) which required more experience Considering all these facts,
on the record before me I find that the General Counsel has failed to establish that,
after Collins testified in Case No. 17-CA-2413, work assignments to her were made
in a discriminatory manner or on any other than a routine or normal basis.
The General Counsel's contention that the written reprimand of July 30 was dis-
criminatory so far as Collins was concerned is weak in two respects. In the first
place, of the other two employees who were reprimanded with Collins, neither was
shown to have been active in support of the Union and only one (Ward) was named
17 The disagreement was as to whether someone sitting in Brown's chair could see across
the street clearly. The conflict was never resolved In my Decision I found that, even
accepting Collins' testimony as true, it was insufficient to support a finding that Biown's
conduct violated the Act No exceptions to this finding were filed by any party
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1137
in the telegram which the Respondent had received more than 4 months earlier. In
an effort to bolster this weakness , the General Counsel argues in his brief that the
nonadherents were also given warning slips by Brown "in an attempt to conceal"
his discriminatory intent against Collins. The short answer to this is that it is pure
conjecture . In the second place, Brown 's testimony that the written reprimands were
necessitated by the unruly conduct of the three employees involved upon the occasion
in question indicates that the warnings may well have been required in the interest
of plant efficiency and discipline . While the matter is not entirely free from doubt,
I conclude that, in view of the surrounding circumstances , the General Counsel has
failed to prove by a fair preponderance of the evidence that Brown 's act of handing
a written reprimand to Collins on July 30 was discriminatory.
This is not to say that the General Counsel 's proof falls short of discrimination
against Collins in every respect . Determination of this issue, in my opinion, turns
upon the key testimony of Collins and Fowler. Collins' testimony establishes that
soon after she testified in the earlier case Brown 's criticism of her conduct and of the
speed with which she worked-almost nonexistent before July 8-became a frequent
matter and , on one occasion at least, was unwarranted . Fowler's testimony shows
the unjustified and harassing nature of Brown's conduct toward Collins after her
testimony in Case No . 17-CA-2413: although Collins worked faster than Fowler
(or at least as fast, according to Brown's admission ), it was Collins , not Fowler, to
whom Brown addressed his reprimands . This is the very essence of discriminatory
conduct. Brown denied any discrimination , but I am not impressed by his denial.
Fowler was not employed by the Respondent at the time he testified , and has no
apparent interest in the outcome of this case . He impressed me as a forthright, sin-
cere, and impartial witness and I credit his testimony . Accordingly , I find that after
July 8 Brown embarked upon a campaign of harassment of Collins which took the
form of frequent and unjustified criticism of her conduct and of the speed with which
she was working , and reprimanding her for errors for which she was not responsible
The final question to be determined on this phase of the case is whether the record
shows a connection between Collins ' testimony against Brown in Case No. 17-CA-
2413 and Brown 's discriminatory harassment of her. The timing is a factor indi-
cating such a causal connection . So is the parallel between the technique used by the
Respondent in harassing Willie Fay Carel in April, because of her support of the
Union, as found in Case No. 17-CA-2413, and the technique used by the Respondent
in harassing Collins in July and August , as credibly related by Collins and Fowler
in the instant case. The similarity is striking . For these reasons, I am persuaded
that Brown 's harassment of Collins was in retaliation for the testimony she gave
against him on July 8 as a witness for the General Counsel in Case No. 17-CA-2413.
I further find that, in doing so, Brown acted as an agent of the Respondent within
the scope of his authority , and the Respondent is accountable for the violation of
Section 8 (a) (1), (3), and (4) of the Act which resulted.
F. Jones' interviews with prospective witnesses
1. Facts
The instant hearing was scheduled to begin on November 4. Two days earlier,
on November 2, Donald W. Jones, Esq., one of the Respondent's attorneys, inter-
viewed two of the Respondent's employees who were prospective witnesses. The
employees were interviewed individually in a room at the Respondent's shipping
department. Jones was equipped with a battery recorder, but did not turn it on or
make any recording.
Jones first talked to Wanda Collins, explaining that he was attorney for the
Respondent and wanted to discuss the issues which were going to be litigated at the
forthcoming Board hearing. He added that he did not want to ask her how she
personally felt about the Union, but merely desired her statement in preparation for
the hearing. Collins replied that she had already given one statement (apparently a
reference to a statement given to a Board agent) and did not wish to give another.
Tones said he only wanted to get a few sentences on the recorder and asked Collins
if she thought the Respondent had a right to know why it was "being taken into
court " Collins asked Jones if she were "required by law" to give a statement. Jones
answered in the negative, adding that under the circumstances he thought that Collins
would want to give one. Collins repeated that she would not do so if she were not
required by law. Jones asked her if she ever did anything she was not required by
law to do, but she remained adamant. Then Jones stated that he hoped if she testi-
796-02 7-66-v of 153-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fled at the hearing she would tell the truth, not "lie like she did the last time." There
ensued an argument concerning the truth or falsity of Collins' testimony in the pre-
vious case, following which Collins left without giving Jones any statement 18
Jones next interviewed Jerry Ward. After Jones had been introduced to Ward as
attorney for the Respondent, Jones gestured toward the recorder and stated that he
would like to record a brief interview with Ward about matters that were going to
be raised in the forthcoming Board hearing, and that Ward had a right under the law
to talk to him or not to do so. He added that he would not ask Ward how he felt
about the Union. Ward replied that he would rather not make a statement without
the presence of his attorney. Jones asked who Ward's attorney was, and if he had
told Ward not to talk to Jones. When Ward responded in the negative, Jones said
that if Ward did not have anything to hide, he should go ahead and make a statement.
Ward repeated that he did not desire to do so unless his attorney was present. Jones
finally stated that if Ward "wanted to play dirty, they could, too." The interview
then ended without Jones having obtained a statement from Ward.19
2. Contentions of the parties
The complaint, as amended at the hearing, alleges that on or about November 2
Jones "threatened with reprisals and intimidated employees for refusing to give to
the Respondent statements concerning issues in the impending hearing on this com-
plaint." The General Counsel recognizes the right of an employer to interrogate an
employee for the purpose of preparing a defense to a pending unfair labor practice
charge. But he contends that the manner in which Jones conducted the interviews
here, especially in the context of other prior unfair labor practices, "can reasonably
be expected to interfere with and coerce the employees" because Jones "repeatedly
requested" Collins and Ward to give statements and because Jones failed to "assure the
employees at the outset that no reprisal would be taken against them for refusing to
give statements " In addition the General Counsel maintains that Collins was fur-
ther intimidated because Jones "in effect, called her a liar" and that Ward was fur-
ther intimidated by the "direct threat" that if he wanted to play dirty, they could, too.
The Union likewise concedes that an employer has an "unquestioned" right to
interrogate his employees in the preparation of a defense to a charge of unfair labor
practices. But its brief maintains:
Respondent's attorney exceeded the permissible bounds of conduct in his inter-
rogation of Collins and Ward. He freely admitted that he persisted to ask them
to submit to his questioning after they had clearly expressed a desire not to do so
Such persistence obviously implies dissatisfaction with refusal and the creation
of this implication unlawfully tends to restrain and coerce the listener. Fur-
thermore his admitted expression of disbelief in Collin's previous testimony
directed to her clearly demonstrated a hostility towards this employee and
served no other useful purpose.
At the hearing the Respondent amended its answer to deny the added allegation.
In its brief it contends that the interviews in question took place in "a non-coercive
atmosphere." It denies that "the expression of opinion by Attorney Jones that
[Collins] had not spoken the truth at the prior hearing, with an expression of hope
that she would testify truthfully at the forthcoming hearing," was intimidatory.
Finally it argues that Jones' remarks to Ward about playing dirty did not indicate
"that the employee is threatened with any reprisal" and is "so ambiguous that it does
not constitute a threat."
3. Conclusions
An employer may interrogate his employees on matters involving their Section 7
rights, without incurring Section 8 (a) (1) liability, where such questioning is necessary
in preparing the employer's defense for trial of the case. But it has been pointed out:
In allowing an employer the privilege of ascertaining the necessary facts from
employees in these given circumstances, the Board and the courts have estab-
lished specific safeguards designed to minimize the coercive impact of such
employer interrogation. Thus, the employer must communicate to the employee
the purpose of the questioning, assure him that no reprisal will take place, and
18 The findings of fact regarding this interview are based upon a synthesis of the testi-
mony of Jones and Collins.
iD The findings of fact regarding this interview are based upon a synthesis of the testi-
mony of Ward and Jones. However, Jones denied telling Ward that if he "wanted to
play dirty, they could, too " Jones' denial in this respect is not credited.
SPRINGFIELD GARMENT MANUFACTURING COMPANY 1139
obtain this participation on a voluntary basis; the questioning must occur in a
context free from employer hostility to union organization and must not be
itself coercive in nature, and the questions must not exceed the necessities of the
legitimate purpose by prying into other union matters . . . . 20
However, it is difficult to perceive how such safeguards can logically be applied to
a situation where, as here, the interrogation never actually got under way, but was
aborted at the very threshold of the interview by the employees' refusal to go any
further. Under such circumstances no specific questions had yet been formulated
and the employer's representative had only an abbreviated opportunity to outline
the safeguards to the employees. Moreover, where coercive interrogation is alleged
in the complaint and these safeguards are found to be absent, the interrogation may
well be held to be coercive, and the employer ordered to cease and desist from such
coercive interrogation. Here, on the contrary, the complaint as amended does not
allege illegal interrogation, instead it alleges intimidation of employees resulting from
their refusal to submit to interrogation of any kind, coercive or otherwise. Accord-
ingly, I am of the opinion that the safeguards described above are inapplicable to the
instant situation, and that the Respondent's alleged failure to observe them is not
properly in issue.
In this posture of the case, it seems to me that the crucial factor here is the nature
of Jones' statement to Ward that if he wanted to "play dirty" the Respondent could
also do so 21 Uttered as it was by a representative of the employer to a rank-and-file
employee, I look upon this remark as a clear threat of reprisal against Ward because
he refused to give Jones any statement. While Jones' zeal for his client's cause is
highly commendable, I am convinced and find that in this instance-perhaps in
momentary frustration-he overstepped the bounds of propriety and engaged in
purposeful intimidation violative of Section 8(a)(1) of the Act.22
Upon the basis of the above findings of fact, and upon the entire record in this case
and in Case No. 17-CA-2413, I make the following:
CONCLUSIONS OF LAW
1. Springfield Garment Manufacturing Company is, and at all material times has
been, an employer within the meaning of Section 2 (2) of the Act and engaged in
commerce within the meaning of Section 2 (6) of the Act.
2. Amalgamated Clothing Workers of America, AFL-CIO, is, and all material
times has been, a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminatorily harassing Wanda Collins because she gave testimony under
the Act, thereby discouraging membership in the above-named labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (3) and (4) of the Act.
4. By the above-described conduct, by requesting applicants for employment to
reveal their union sympathies , affiliations, and activities , and by threatening reprisal
against an employee because he refused to make a statement to its attorney , thereby
interfering with, restraining , and coercing its employees and applicants for employ-
ment in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The above-described unfair labor practices tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce , and constitute
unfair labor practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
6. The General Counsel has failed to establish that the Respondent discriminated
against either Charles Horsey or Jerry Ward within the meaning of Section 8(a)(3)
of the Act.
°Johnnie's Poultry Co., 146 NLRB 770. See also Surprenant Manufacturing Co. v.
N L.R B , 341 F. 2d 756 (CA. 6), 58 LRRM 2484, 2488-2489; and Neuhoff Bros. Paekei s,
Inc, 151 NLRB 916.
211 do not therefore decide whether Jones' intimation that he did not believe the testi-
mony given by Collins at the previous hearing constitutes intimidation by accusation, as the
General Counsel and the Union urge, or Is merely an expression of opinion protected by
Section 8(c) of the Act. See Screen Print Corporation, 151 NLRB 1266, footnote 2.
Nor do I decide whether Jones' persistence in repeatedly requesting Collins and Ward to
make a statement amounted to coercion.
23 Compare Joy Silk Mills, Inc. v. N L R.B , 185 F. 2d 732, 742-744 (C A D C ), cert
denied 341 U.S. 914.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
It has been found that the Respondent violated Section 8(a)(1) of the Act by
asking job applicants to reveal their union affiliations , and by threatening reprisals
against an employee who refused to make a statement to the Respondent 's attorney
regarding pending unfair labor practice charges. It has also been found that the
Respondent violated Section 8(a)(1), (3 ), and (4 ) of the Act by discriminatorily
harassing an employee because she gave testimony as a witness for the General Coun-
sel in a prior case. It will be recommended that the Respondent refrain from such
conduct in the future . Nothing contained herein shall , however , be construed so as
to limit or interfere with the right of the Respondent to operate its business in a
nondiscriminatory manner or to reprimand or otherwise discipline employees for
reasons not proscribed by the Act . Nor is it intended hereby to bestow upon any
employee immunity from nondiscriminatory disciplinary action taken by the
Respondent.
In my Decision in Case No . 17-CA-2413 I concluded "that there exists danger
that the Respondent will in the future commit other unfair labor practices ." After
the close of the hearing in that case , the Respondent discontinued the use of the job
application form described above, and McKinney instructed the supervisors "to
remain completely neutral [regarding the Union ] at all times ." However, even though
McKinney might well have issued these instructions in complete good faith , it does
not necessarily follow that all danger of further violations of the Act has now dis-
appeared . For the additional violations of Section 8(a)(1), (3 ), and (4 ) of the Act
found herein persuade me, and I find, that the danger described in my Decision in
Case No. 17-CA-2413 still exists . Accordingly, a broad cease -and-desist order is
appropriate.
Affirmatively , it will be recommended that the Respondent post appropriate notices.
It will also be recommended that the complaint be dismissed , insofar as it alleges
that the Respondent discriminated against either Charles Horsey or Jerry Waid.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in this case and in Case No. 17-CA-2413, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, I hereby recommend that
the Respondent , Springfield Garment Manufacturing Company, Springfield , Missouri,
its officers , agents, successors , and assigns , shall-
1 Cease and desist from:
( a) Requesting applicants for employment , either orally or on job application
forms, to disclose their union affiliations, activities, or sympathies.
(b) Harassing its employees , or otherwise discriminating against them in regard
to their hire or tenure of employment or any term or condition of employment,
because they give testimony under the Act.
(c) Threatening reprisal against its employees because they refuse to make state-
ments to its attorney or otherwise cooperate in investigating and/or preparing a
defense to unfair labor practice charges against the Respondent.
(d) In any other manner interfering with, restraining, or coercing its employees
or applicants for employment in the exercise of their rights under Section 7 of the
Act, except as permitted by Section 8 (a) (3) of the Act, as amended
2 Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Promptly upon receipt from the Regional Director for Region 17 of copies
of the attached notice marked "Appendix," 23 cause such copies to be signed by its
representative and posted in conspicuous places at its plants in Springfield , Missouri,
including all places where notices to employees are customarily posted.
(b) Maintain such posting for 60 consecutive days, during which it shall take rea-
sonable steps to prevent such notices from being altered, defaced, or covered by any
other material
23 If this Recommended Order should be adopted by the Board, the words "the Recom-
mended Order of a Trial Examiner " shall be stricken from the notice , and the words "a
Decision and Order" shall be substituted therefor If the Board's Order should be en-
forced by a decree of a United States Court of Appeals, the words "Decision and" shall
be striken from the notice and the words "Decree of the United States Court of Appeals,
Enforcing an" shall be substituted therefor
SOUTHWESTERN COLORADO CONTRACTORS ASSN., ETC. 1141
(c) Notify the said Regional Director, in writing, within 30 days from the receipt
of this Decision,24 what steps it has taken to comply herewith.
It is further recommended that the complaint herein be dismissed, insofar as it
alleges that the Respondent discriminated against either Charles Horsey or Jerry
Ward in violation of Section 8(a) (3) of the Act.
"Alf this Recommended Order should be adopted by the Board, the words "20 days
from the receipt of this Decision" shall be striken, and the words "10 days from the
date of this Order" shall be substituted therefor.
APPENDIX
NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to carry out the policies of the National Labor Rela-
tions Act, as amended, you are notified that:
WE WILL NOT ask job applicants, either orally or on job application forms, to
disclose their union affiliations, activities, or sympathies.
WE WILL NOT harass our employees, or otherwise discriminate against them
in regard to their hire or tenure of employment or any of their working condi-
tions, because they give testimony under the National Labor Relations Act, as
amended.
WE WILL NOT threaten reprisal against our employees because they refuse to
make a statement to our attorney or otherwise cooperate in investigating or
preparing a defense to unfair labor practice charges against us.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees or applicants for employment in the exercise of their right to self-
organization, to form unions, to join or assist Amalgamated Clothing Workers
of America, AFL-CIO, or any other union, to bargain collectively through rep-
resentatives of their own choosing, to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection, or to refrain
from doing so, except to the extent that such right may be affected by an agree-
ment requiring union membership as a condition of employment, as authorized
in Section 8(a)(3) of the National Labor Relations Act, as amended.
Our employees are free to become or remain, or refrain from becoming or remain-
ing, members of any union, except to the extent that such right may be affected by
an agreement requiring union membership as a condition of employment as per-
mitted by Section 8(a)(3) of the National Labor Relations Act, as amended.
SPRINGFIELD GARMENT MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Questions concerning this notice or compliance with its provisions may be directed
to the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City,
Missouri, Telephone No. Baltimore 1-7000, Extension 2733.
Southwestern Colorado Contractors Association , and its Mem-
bers and Colorado State Council of Carpenters and Carpenters
District Council of Southern Colorado , AFL-CIO. Case No.
27-CA-1513. July 1,1965
DECISION AND ORDER
On October 2, 1964, Trial Examiner James T. Barker issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents had
153 NLRB No. 75.