Jackson Tile Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 23, 1959

124 N.L.R.B. 218 (N.L.R.B. 1959)

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The Employer contends that the petition is premature, asserting
that its present mine development operation does not have a substan-
tial and representative complement. The Employer currently em-
ploys 26 "service" employees and 22 "contract miners" in developing
its Uranium mine. Within 30 to 90 days after the May 19, 1959,
hearing date, the mine development operation will cease and produc-
tion mining will begin. At that time the complement of service
employees will remain the same as it is at present; but the Employer
anticipates that it will lose at least half of its contract miners and
that about 40 new employees will be hired. The record indicates two
new and substantial job classifications will be necessary when produc-
tion commences. As it appears that the Employer presently does not
have a substantial and representative production force, we shall direct
that an election be held as soon as the Regional Director shall deter-
mine that a substantial and representative production force has been
employed, but not later than August 19, 1959. The election will be
subject to submission of an adequate current showing of interest.
Goshen Division of The General Time Corporation., 102 NLRB 1007;
see, also Armstrong Cork Company, 115 NLRB 1578.
[Text of Direction of Election omitted from publication.]
Jackson Tile Manufacturing Company and United Glass & Ce-
ramic Workers of North America, AFL-CIO-CLC. Cases Nog.
15-CA-1054 and 15-0/1-1190. July 23, 1959
DECISION AND ORDER
On April 3, 1959, Trial Examiner Arthur Leff issued his Intermedi-
ate Report in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action as set forth in the copy of the Intermediate
Report attached hereto. He also found that the Respondent had not
engaged in other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the
Respondent and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
1 The Respondent 's request for oral argument is hereby denied as the record, exceptions,
and briefs adequately present the positions of the parties.
124 NLRB No. 16.
JACKSON TILE MANUFACTURING COMPANY 219
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications and correc-
tions noted below.2
ORDER
Upon the entire record and pursuant to Section 10(c) of the Na-
tional Labor Relations Act, as amended, the National Labor Relations
Board hereby orders that Respondent Jackson Tile Manufacturing
Company, Jackson, Mississippi, its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership in United Glass & Ceramic Workers
of North America, AFL-CIO-CLC, or any other labor organization
of its employees, by discharging employees or by discriminating
against them in regard to their hire or tenure of employment or any
term or condition of employment.
(b) In any other Inanner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist the aforesaid labor organization or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer James Foster and Grady Cook immediate and full rein-
statement to their former or substantially equivalent positions with-
out prejudice to their seniority or other rights and privileges, and
make them whole in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social se-
2 In adopting the Trial Examiner's findings, we hereby correct minor inadvertances and
inaccuracies which do not affect the validity of his findings, conclusions, and recommenda-
tions, such as, the reference to Cook instead of Foreman. Chase in the Trial Examiner's
account of the conversation between Cook and Personnel Director Newman and the erro-
neous statement that Foster received a reprimand the same day as the "coke machine
incident" rather than the morning after the "`coke machine incident." We also find it
unnecessary to adopt the Trial Examiner's opinion expressed in footnote 26 that the
contents of Cook's letter may be viewed as falling within the broad purview of "charges"
as used in Section 8 (a) (4) of the Act.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of back pay due
under the terms of this Order.
(c) Post at its plant at Jackson, Mississippi, copies of the notice
attached to the Intermediate Report marked "Appendix A." 3 Copies
of such notice, to be furnished by the Regional Director for the Fif-
teenth Region, shall, after being duly signed by an authorized repre-
sentative of the Respondent, be posted by it immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Fifteenth Region in writ-
ing, within 10 days from the date of this Order, as to what steps the
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent committed unfair
labor practices by reason of its discharge of Lula Mae Harper.
'This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT
Charges and amended charges having been filed by the Union above named against
the Company above named , herein the Respondent , in Cases Nos . 15-CA-1054 and
15-CA-1190, and the said cases having been duly consolidated , the General Counsel
issued a complaint alleging that the Respondent had engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1) and ( 3) of the
National Labor Relations Act , 61 Stat. 136 , herein called the Act. More specifically,
the complaint alleges that the Respondent discharged , because of their union mem-
bership and activities , James Foster , on June 27 , 1957; Grady Cook, on July 18,
1957; and Lula Mae Harper , on January 9, 1958. The Respondent filed an answer
denying the commission of the alleged unfair labor practices.' A hearing was held
I The answer further alleged affirmatively that the charge in Case No. 15-CA-1054
relating to the alleged discriminatory discharges of Foster and Cook had been dismissed
by the Regional Director prior to the issuance of the complaint. The Respondent ap-
parently contends that because of such alleged dismissal, the Board is now procedurally
foreclosed from considering the allegations of the complaint concerning Foster and
Cook. It appears from the formal papers in evidence that on December 2, 1957, the
Regional Director administratively dismissed the charge in 'Case No. 15-CA-1054 for
"insufficient evidence of violations" ; that thereafter, on December 11, 1957, the Charg-
ing Party filed with the General Counsel in Washington, D.C., in accordance with the
applicable Rules and Regulations of the Board, a request for a review of the Regional
Director's action ; and that on October 6, 1958, prior to any action by the General
Counsel on such request for review, the Regional Director, upon notice to all parties,
and with the knowledge and tacit approval of the General Counsel, reconsidered his orig-
inal action, withdrew his dismissal letter of December 2, 1957, and thereafter issued the
complaint in the instant proceeding based in part upon the aforesaid charge. Under the
circumstances, and by reason of the Charging Party's timely request to the General
Counsel to review the Regional Director's then refusal, since reconsidered , to issue a
complaint on behalf of the General Counsel in Case No. 15-CA-1054, I find that the
charge in that case did not die ; that it was still pending at the time the complaint
JACKSON TILE MANUFACTURING COMPANY 221
between June 13 and 16, 1958, at Jackson, Mississippi, before the duly designated
Trial Examiner. All parties were represented at the hearing by counsel and were
afforded full opportunity to examine and cross-examine witnesses, to present oral
argument, and thereafter to file briefs as well as proposed findings of fact and con-
clusions of law. Briefs were received from the General Counsel and the Respondent
on March 2, 1959.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Jackson Tile Manufacturing Company, a Mississippi corporation , is engaged at
Jackson, Mississippi , in the manufacture of ceramic tile. During the year 1956,
a representative year , the Respondent shipped goods valued in excess of $200,000
to points outside the State of Mississippi . The Respondent admits that it is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Glass & Ceramic Workers of North America, AFL-CIO-CLC, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent commenced its operations at Jackson about March 1956. It now
employs approximately 150 employees. The Ut,ion came on the scene shortly after
the commencement of the Respondent's operations and thereafter conducted an
active organizational campaign which, as the Board has heretofore found, met with
vigorous resistance from the Respondent. On August 15, 1957, the Union filed a
representation petition. An election was held on December 4, 1957. The results
of the election have not yet been fully determined; still unsettled is the disposition
to be made of certain challenged ballots ruling on which must await the outcome
of the instant complaint proceeding.
The specific issues to be resolved in this case are narrow. They concern the
question of whether three employees were unlawfully discriminated against because
of their union or concerted activities. The employees are James Foster, who was
discharged on June 27, 1957; Grady Cook, who was suspended on July 18, 1957,
and discharged on August 1, 1957; and Lula Mae Harper, who was discharged on
January 9, 1958..
But though the specific issues are so restricted, this case must in a sense be con-
sidered as a supplement to a previous unfair labor practice proceeding involving
the same Respondent, litigated before the Board in Cases Nos. 15-CA-999 and
15-CA-1094. That proceeding involved company unfair labor practices which in
point of time overlapped the discharges of Foster and Cook and continued until
shortly before the discharge of Harper. In that proceeding a hearing was held
before Trial Examiner Thomas S. Wilson in January 1958, the Trial Examiner
issued his Intermediate Report on May 5, 1958, and the Board, on December 31,
.1958, issued its Decision and Order (122 NLRB 764) adopting, with certain modifi-
cations and exceptions, the findings, conclusions, and recommendations of Trial
Examiner Wilson. As requested by the General Counsel, official notice has been
taken of the findings and conclusions made and adopted by the Board in its Decision
and Order in Cases Nos. 15-CA-999 and 15-CA-1094. The findings there made
provide an appropriate background for consideration of the specific discharges here
involved. They are deemed relevant to-although by no means conclusive upon-
the issue of whether the Respondent in effecting such discharges may have been
influenced in whole or in part by antiunion considerations.2
herein was issued; and that the Board had jurisdiction to entertain the instant complaint,
'duly issued, based in part upon said charge. See Fant Milling Company, 117 NLRB
1277, 1280-82.
2 In find no merit to the Respondent's contention that the findings in the earlier case
may not now be considered because, as the record shows, the Respondent prior to the
commencement of the instant proceeding filed with the Circuit Court of Appeals for the
Fifth Circuit a petition to review the Board's Decision and Order entered in such cases.
In the present posture of such cases, I must consider the Board's Decision and Order, and
the findings made therein, as binding on me.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its Decision and Order in Cases Nos. 15-CA-999 and 15-CA-1094, the Board
found that during the period covered by the complaint there the Respondent en-
gaged in numerous unfair labor practices of a "serious nature" aimed at defeating
the Union's organizational efforts and the statutory rights of its employees. Among
other things, the Board found that the Respondent: (1) instituted and maintained
throughout that period an informer system among its employees designed to ferret
out information concerning union activities and the identity of union adherents;
(2) engaged in surveillance of union meetings and activities; (3) interrogated em-
ployees concerning their own and their fellow employees' union views, membership,
and activities; (4) interfered with the right of employees to receive union handbills
or otherwise engage in union activities; (5) threatened employees with economic
reprisal if they joined or assisted the Union; (6) interfered with and obstructed the
Board's investigation of unfair labor practice charges, by, inter alia, instructing
employees to give false information to a Board field examiner; (7) instructed fore-
man to "watch out" for union solicitation by employees in the plant and to get rid
of employees active in such solicitation; (8) discharged four employees because of
their actual or suspected activities on behalf of the Union; 3 (9) discharged a super-
visory employee (John Scroggins) because he became reluctant to commit further
unfair labor practices on the Respondent's behalf; and (10) engaged in other acts
of unlawful conduct, all as more fully appears from the Decision and Order and
attached Intermediate Report set out in 122 NLRB 764.
Among the management and supervisory employees who were found by the
Board in the prior proceeding to have participated actively in the unfair labor
practices engaged in on behalf of the Respondent, and who also figure prominently
in the alleged unfair labor practices here involved, are Personnel Manager James G.
Newman, Plant Manager Walter Stuenkel, Foreman Clarence Hawk, and Foreman
Wilber Chase.
B. The discharge of James Foster
1. Foster's employment history; his union activities and the Respondent's
knowledge thereof
James Foster was employed by the Respondent as a glaze machine operator from
July 1, 1956, to June 27, 1957, when he was discharged. Foster signed a union
designation card in the fall of 1956, but did not become active in the Union's organ-
izational efforts until the following spring. In March or April of 1957, he began
to take an active role in the organizational campaign , working closely with Grady
Cook, and next to Cook was perhaps the most active union proponent among the
Respondent's employees in that period. Prior to his discharge, Foster solicited union
designation cards from some 20 employees, usually visiting their homes for that
purpose, and actually obtained about 8 to 10 signatures. During this period, he was
also in almost daily contact with Union Organizer Everett Kantzar.
On the basis of the findings made in the Board's prior proceeding (Cases Nos.
15-CA-999 and 15-CA-1094), it is reasonable to infer that Foster's pronounced
union activities must have come to the attention of the Respondent's management
via the employees informer system the Respondent had established. It is unneces-
sary, however, to rely on inference alone to establish company knowledge. For
this record contains affirmative supporting evidence to that effect. Thus, John
Scoggins , then employed by the Respondent as a foreman, but since separated,
testified that both Foster and Cook, because of their union activities, were under
company surveillance at the time, and that in May or June 1957, he was specifically
instructed by Personnel Director Newman to keep them out of his department .4
Thus, too, John -Henry Smith, a former employee of the Respondent, testified that
about May or June 1957, in accordance with prior instructions from Newman to
report anyone who mentioned the Union to him, he advised Newman that Foster
and Cook had contacted him at a nearby restaurant to solicit his membership in
the Union. Smith further testified that subsequently thereto Newman inquired
of him if Cook and Foster had been talking to him lately, and when he said "no,"
Newman remarked, "Well, I wish they'd mention it to you on company time
sometime," implying thereby, it is found, that this would provide Newman with a
hoped for opportunity to discharge them under a company no-solicitation rule.5
3 Two of the discharges occurred in August 1956, one in October 1956, and one on
September 3, 1957.
A Newman's denial is not credited.
5 Newman denied that Smith had ever made any report to him concerning the Union
or any union activity. His denial is not credited.
JACKSON TILE MANUFACTURING COMPANY 223
It is noteworthy that none of the numerous management officials who testified at
the hearing concerning Foster's discharge disclaimed knowledge of Foster' s union
activities.
2. The events of June 19 and 20, 1957
Certain events occurring about a week before Foster's discharge have a bearing
both on his case and on that of Cook, more so, perhaps, on that of Cook.
,On the morning of June 19, 1957, during a break period, Foster, Cook, and
several other employees, including "Elvis Presley" Hutton, participated in a dis-
cussion of the Union at the "coke" machine. Later that day, Hutton reported to
Foster and Cook that Foreman Scoggins had observed him at the "coke" machine
with Foster and Cook, had told him that the Company knew they were soliciting
for the Union, and had warned him to stay away from them if he wanted to keep
his job.
That same day, Foster received an official reprimand from his foreman, Wilber
Chases The reprimand was for failure to clean a glaze machine properly. When
the reprimand was given, Foster conceded that the machine had not been thoroughly
cleaned of glaze. But he contended that in the past others in the same condition
had been allowed to pass muster. According to Foster's undenied testimony, Chase
did not dispute that that was so. Foster testified that this was the first reprimand
he had ever received in the course of his employment. The Company's file on Foster,
however, shows two earlier ones in addition.?
Early the next morning , employee Billy Warren, suggested to Foster and Cook
that they had better watch their step; that a friend of his had overheard two com-
pany "wheels" talking about them; that they were being watched, and the Company
was after them.
Foster and Cook, as a result of the reports they received from Hutton and
Warren, and perhaps also because of the almost contemporaneous reprimand given
Foster, became apprehensive over their job security and decided it was to their
interest to talk the matter out at once with Personnel Director Newman. They
requested permission through their foreman, Chase, jointly to meet with Newman
to discuss with him the rumors they had heard that the Company was seeking to get
them discharged. They were allowed to see Newman separately that day. Cook's
interview with Newman will be reported separately in the section below dealing
with his discharge. We consider here only Foster's interview,
At Foster's meeting with Newman on June 20, the purpose of Foster's requested
interview was discussed only in passing.8 Newman at once took the initiative, and,
before even inquiring as to the purpose of Foster's requested visit, embarked upon
a vigorous criticism of Foster's work record. He told Foster that he had just
received another reprimand on him; that that was Foster's third reprimand, and
that Foster's work had "gone to hell here lately." Brushing aside Foster's disclaimer
of knowledge of any prior reprimand, Newman went on to say that three repri-
mands were enough to have Foster discharged. He urged Foster to resign, saying,
"Why don't you just resign and keep your record clean?" Foster refused, "I'm not
going to resign , you will have to fire me." Whereupon Newman said, "Not going to
resign , huh? Well, go back to your department and go to work."
I There is an inconsistency in Foster's testimony as to whether that reprimand was
received on January 19 or January 20, but the reprimand is dated January 19, and I
believe that to be the correct date.
7 The two earlier reprimands were introduced into evidence. One, dated April 8, 1957,
and signed by Chase, recites that Chase told Foster to clean up cardboard and boxes
from the area around his machine and that Foster agreed to do so. The other, dated
November 11, 1956, and signed by a previous department foreman, D, O. Stockstill,
states that Foster was reprimanded for putting glaze into his machine that had not been
okayed by the laboratory. Foster denied 'any recollection of the two prior reprimands.
As to the April 8 reprimand at least, Poster's lack of recollection is clearly understand-
able in the light of Chase's subsequent admission that he did not advise Foster at the
time that he was giving him a formal reprimand. Foster might thus have viewed the
order, with which it is conceded he complied, as no more than a routine instruction.
Whether or not the Stockstill reprimand was formally called to Poster's attention does not
appear ; Stockstill, no longer employed by the Respondent, did not testify.
8 When Foster told Newman of the reports Cook and he had received, Newman asked
Foster to disclose the names of those from whom their information was obtained. Upon
Foster's refusal to do so, Newman simply declared that without such 'information there
was nothing he could do.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The discharge and the assigned reason for it
,One week after his interview with Newman, Foster was discharged. The Com-
pany's termination notice, signed by Chase, assigns the following as the reason for
the discharge:
Wilful and intentional refusal to follow instructions (Rule No. 1). This em-
ployee ignored repeated instructions given by me to keep glaze machine bearing
oiled, resulting in destruction of Company property. Appeared that it was
deliberate on his part. Check of bearing by maintenance department showed
that it was dry of oil and would have to be replaced. Employee has three repri-
mands on record already, due to poor quality of work.
4. Description of the equipment involved
Foster's job was to operate a glaze applicator machine. The machine is a large
one, approximately 8 feet long and 21/2 feet wide. Liquid glaze is fed into the
machine by a hose and is then pumped by the thrust of an impeller through a set of
sprays on raw tile which passes through the machine on a continually moving belt.
The pump assembly which is set beneath the machine consists of a motor joined
by a shaft to an impeller. The shaft, which operates at 3,600 revolutions per
minute, is divided into two sections, connected by a U-joint coupling. Fitting over
the coupling and completely enclosing it is a cast iron housing. Two bearings
are located inside the housing, one on each side of the coupling. While the machine
is in operation oil must be constantly fed into such bearings to lubricate the U-joint
coupling. The oil is fed through two L-shaped oil lines, each about 22 inches long,
extending to the outside of the machine within reach of the operator on the side
where he works. Screwed on the upper end of each of the oil lines is an oil cup
about the size of an ink bottle. The dropping of oil through the oil lines is regulated
by a set screw on the cups. In addition, the oil flow can be completely cut off by
a cutoff lever, called a "rabbit ear," on the top side of the cup. Oil will flow from
the cup into the line only when the "rabbit ear" is up, not when it is down. Below
the base of the cup on the fitting where the cup screws on to the oil cup (and also
below the oil regulator valve) there is a glass enclosed "peep hole" through which
the operator may observe the rate at which the oil drips from the cup into the line.
It is the duty of a glaze machine operator to keep oil in the oil cups at all times
while the machine is in operation, and to see to it that oil is properly dripping from
the cups leading to the line. About 4 months before Foster's discharge another
employee in the department was discharged for failure to keep oil in the glaze
machine assembly.
It is not an uncommon occurrence for the pump mechanisms on the glazing
machines to become defective, acquiring replacement or repair.9 Bearings have a
limited life and become defective through wear for reasons other than lack of oil.
When bearings become worn or defective, the condition is normally flagged by loud
rattling noise and excessive heating of the shaft. The impeller shaft also has a
limited life; it may last without replacement for or little as 2 weeks or as long as 6
months, according to the testimony of Foreman Chase. It appears from the testi-
mony of the Respondent's witnesses, however, that when shafts get hot and burn
out the trouble more usually is not at the U-joint bearings which are oiled and
encased in a housing, but rather at a point near the packing box glands in the impeller
itself where abrasive materials may collect.
With this explanatory matter out of the way, I now turn to a consideration of the
events surrounding Foster's actual discharge.
5. The conflicting evidence as to the events immediately leading to Foster's discharge
The Respondent's specific position in this case is that Foster was discharged for
failing to carry out his duties with regard to the oiling of the bearings at the U-joint
coupling with resultant damage to the bearings and shaft. The General Counsel, on
the other hand, insists that Foster did everything he was required to do; urges that
the entire incident that day was contrived by the Respondent to provide a pretext
for Foster's discharge, and asserts that even if the glazing machine was damaged
9 Grady Cook testified that the Respondent experienced a great 'deal of pump trouble
on its glazing machine, that it was not uncommon to replace "one a week anyway."
The Respondent did not dispute that occasions arose where pumps had to be replaced or
repaired, but asserted that it was most unusual for a condition to develop where a machine
already in operation had to be stopped for immediate replacement or repair.
JACKSON TILE MANUFACTURING COMPANY 225
at all that day-which he disputes-the Respondent had no basis to believe, and
could not reasonably have believed, that the fault lay with Foster.
As is apparent from what has just been said, the General Counsel and the Respond-
ent do not see eye to eye on all the facts. The areas of agreement and disagreement
may perhaps best be pointed up by setting out the respective versions of the General
Counsel and of the Respondent, as presented by the witnesses called by each of
them. The basic conflicts will be analyzed and resolved, to the extent necessary for
decision, in the subsection to follow.
(a) The evidence presented by the General Counsel
Foster testified: Before starting his machine at 7 a.m. on June 27, he filled both oil
cups and satisfied himself by peering through the peepholes that the oil was properly
dripping through the lines.10 That morning, the machine appeared to him to be
operating normally in all respects. He heard no unusual noise and observed nothing
else untoward in the operation of the pumping equipment. At about 9 a.m., after
the machine had been operating about 2 hours, he noticed Clarence Hawk, the
maintenance foreman-
come running from towards the back of the plant and run under the conveyor
belt by my machine and looked down in the oil cups. . He then run around
to the opposite side of the machine where the pump, the shaft and motor is
located, cut the pump off, then turned and came back to the side of the machine
where the oil cups are located and with the flick of his wrist snatched the oil
line and cut off and throwed them down in the drainage ditch under the
machine. . He then turns . . . and goes to the [motor] side . and
starts bending over the pump . . . calling Mr. Chase, "Willie, Willie, come
here." 11
Later, Foster noticed Wilber Chase, his department foreman-
[fishing] the oil cup and line out of this drainage ditch, and as he was raising
up with it in his hand, he said "It doesn't have any oil," and at that point he
stopped, and [Foster] said, "Yes, it does have oil, Chase. Look you can see
it's almost full." Tlaen Chase said, "Well, there's something wrong some-
where." 12
Thereupon [Foster's testimony continued] Foster and Chase approached Hawks.
Chase asked what was the matter. To which Hawk replied, "Good God, Willie, this
man has burned the pump slam up." At this point, it was impossible to see the
condition either of the bearings in the U-joint of the impeller shaft or of the motor,
because both were enclosed in separate cast housings which had not been removed.
Chase asked how long it would take to repair. Hawk said several hours; that he
would have to replace the entire unit. Chase then assigned the other crew members
on Foster's machine (the placers and feeders) to other work, and directed Foster
to accompany him to Personnel Manager Newman's office. Chase told Newman
that Foster, according to Hawk, had just burnt a pump completely up because of
lack of oil and that Chase also had "more stuff on Foster." Chase then asked if
Newman wanted to call back the department and make sure, and Newman said
"yes." Chase made a telephone call, asked the party at the other end if the pump
was burned out, and then stated to Newman that it was. Newman asked Foster
how often he filled the oil cups. Foster said he always filled them once a day,
sometimes more, drawing from Newman the reply that Newman did not know
where the oil was going. Newman stated he wanted to check with John Landon, the
plant engineer, and he asked Foster to remain in the lobby in the meantime. About
a half hour later, Foster was called back to Newman's office and was discharged.
The reason given was that he had burnt up a pump on the glazing machine.
Corroborating testimony: To support Foster's testimony. the General Counsel
called two witnesses, Grady Cook and Henry Wyatt. Cook-the operator of the
1° Foster specifically recalled filling an empty oil can that morning and passing the can
on to Grady Cook at the neighboring machine after filling the cups on his own machine.
11Foster's testimony at this point would make it appear that there was no pause be-
tween Hawk's various actions. Later, however, Foster testified that "more than a couple
of minutes" elapsed between the time of Hawk's arrival and the removal of the oil line.
12 Foster later testified that the oil cup in question was then one-half to three-quarters
full. Foster did not look at the other cups, to which his attention was not directed, but
stated he was sure it also had oil.
525543-60-vol. 124--16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
glazing machine immediately next to Foster's-testified that he specifically recalled
seeing Foster fill his oil cups on the morning of the discharge while waiting for
Foster to pass over to him the only oil can in the department. He also corrobo-
rated Foster's testimony to the effect that the pumping equipment on Foster's machine
was apparently running smoothly prior to Hawk's arrival. Wyatt, the department
inspector, who is still in the Respondent's employ, also corroborated Foster's testi-
mony to that effect. In addition, Wyatt testified that after Hawk had stopped the
machine, he made it a point to examine the oil cups on Foster's machine. One cup
was about half full; the other had "some oil, maybe a quarter." 13
(b) The evidence presented by the Respondent
The testimony presented by the Respondent collides head on with Foster's as to
the occurrences between 9 a.m. and the time Foster was taken to Newman's office.
As to that Chase testified as follows: At about 9 a.m. while passing Foster's machine
during a routine department check, he heard an "unusual" noise emanating from
the pump or motor on Foster's machine. The noise was not a loud one; it probably
could not be heard above the din in the room at the point of the machine where
Foster was stationed. Except for the noise, the machine appeared to be functioning
normally, but Chase thought it should be checked anyway. Chase at the time did not
say anything to Foster about the noise or ask to have the machine stopped, but
walked to a telephone some distance away and asked Hawk to come over. While
waiting for Hawk to arrive, Chase attended to other duties. When Hawk arrived
shortly thereafter, Chase called Hawk's attention to the noise, and Hawk stated,
"I hear it-it appears like your motor is burnt up." Hawk cut off the pump, and
told Chase to shut off the crew. Chase conversed with Hawk a few minutes about
what had happened and what should be done. As they were talking, Foster joined
them. Chase remarked that perhaps the fault was due to lack of oil. Foster at
once spoke up, stating that he had put oil in, and Chase proposed that they go see.
Thereupon, in the words of Chase:
We [Foster and Chase] went on around the machine . . . to the oil cups, and
I said, "Foster from here it don't look like you put any oil in there," and he
said, "I certainly did, I put it in twice." So I looked down to where I could get
a clear look, and one cup didn't have any oil in it and the other cup had just
a little bit in the bottom. So he [Foster] said, "Well, I don't know where it
went to, I filled them up twice, and he acted . . . pretty huffy about it. . . .
Well, I reached under and unscrewed an oil cup and . I said, "It can't pos-
sibly get oil with those rabbit ears down. . . The thing is shut off." He said,
"I put oil in there twice this morning and I watched it drip down, it's going
somewhere." 14 So at that time I looked around and I couldn't see any oil in
the lines anywhere. So I screwed the oil cup back on... ,15
As to what followed, Chase's account is not substantially at variance with that of
Foster.
Hawk testified that when he first came to Foster's machine he knew the pump
was burnt out, not only because of the noise it was making but also
because [the shaft] was so hot you couldn't put your hand on it, and the
motor's turning up at 3600 RPM as that was doing and no oil in the bearings
would whip that shaft so fast that it would beat it out in nothing flat.
Hawk further testified that the pump was later disassembled in the maintenance
department and, when the housing was removed, he found no evidence of oil in the
'Wyatt testified that when he made his check both oil lines were still attached to
the machine. This, according to him was about 21/ minutes after Hawk had stopped
the machine and after he had beard Hawk call Chase. He explained that he was led to
look at the cups because there "seemingly was something wrong with it, because they
[his testimony does not say who] had just been looking at it."
14 Foster denied that Chase said anything to him about the "rabbit ears."
",Chase's statement that he removed and replaced one oil cup would seem to give
some support to Foster's version that his conversation with Chase related to the condi-
tion of only one oil cup. However, Chase testified, contrary to Foster, that both oil
lines were then still attached to the -machine. According to Hawk, one of the first things
he did after cutting off the machine was to arrange to have the oil lines removed. Al-
though Hawk's testimony on this detail, as on others, is contradictory, he admitted at
one point of his cross-examination that he himself removed the oil lines. Hawk's testi-
mony, however, may not be fairly read as reflecting that this was done before Foster's
.conversation with Chase.
JACKSON TILE MANUFACTURING COMPANY 227
bearing space around the shaft. According to Hawk, "the shaft was burned black
through the entire bearing space and eat up" and the bearings were also burnt out.
The shaft, he said, was a complete loss.
The Respondent called a number of other witnesses to confirm Hawk's testimony
concerning the damage claimed to have been done. Plant Engineer John Landon,
who, according to the Respondent, checked the pump at Newman's request prior to
Foster's discharge, testified that the bearings were completely burnt out, in his
opinion because of lack of lubrication, and that the shaft was badly discolored,
worn, and no longer usable. Walter Stuenkel testified that the shaft was "discolored,
blue,"-in his opinion through lack of lubrication. Chase on the other hand
testified that it was only the bearings that had to be replaced, not the shaft.is
W. L. Owens, a maintenance employee, corroborated Hawk's testimony almost
precisely on direct examination, but on cross-examination added something not
mentioned by the other witnesses. He stated that involved were not only the two
bearings located in the U-joint coupling and fed through the oil lines, but also a
third bearing located just behind the impeller itself in the packing gland ho-using.'''
Owens testified that two of the bearings "were pretty badly worn" and one "was
worn completely out"; further, that the packing nut or bushing in the packing gland
housing was also burnt out. Other evidence in the record establishes that pump
trouble in the packing gland housing, resulting in overheating and wear to the shaft,
and requiring replacement of the shaft, was a rather frequent occurrence at the time.
According to the Respondent, all of the company officials mentioned above
examined the pump and noted the condition of the shaft and bearings by visual
inspection prior to Foster's discharge. The examination was made by them, further
according to the Respondent, after the pump assembly was cooled off under water
and brought to the maintenance department for repair. It is conceded that up to the
time the pump was taken to the maintenance department, the housing covering the
U-joint coupling had not been removed, and therefore the condition of the bearings
and of the shaft in the bearing space could not be directly observed. Hawk testified
that the pump was disassembled within 15 minutes after it was brought into the
maintenance department. Hawk further testified that Stuenkel, Landon, Newman,
and Chase came into the department to inspect the pump shortly after it was dis-
assembled. According to Hawk the work on the pump was performed by or with
aid of his maintenance men-as to their identity he was sure only of Owens. Hawk's
testimony in the foregoing respects is to be compared, however, with the following
testimony of Owens:
Q. Now, when you got back to the maintenance shop [with the pump]
what did you do?
A. Well, we didn't do anything at the time until Mr. Hawk had gotten
someone there to look at it.
Q. I see. Did you then break it down?
A. No, sir.
Q. Did you ever disassemble it?
A. Not to my knowledge.
As to the amount of oil in Foster's oil cups, there is testimony by three of the
Respondent's witnesses-Hawk, Chase, and Owen. Hawk testified variously (1)
that "there was a little bit of oil in one cup, not too much," and that he did not see
the other; and (2) that he did not himself see either of the oil cups, but was told
by Owens who had removed them that "there was practically no oil in them."
Owens testified that "there couldn't have been more than two or three drops, if that
much, in either [cup]," not enough to oil the pump. At another point, he testified
that there was "a little oil in each one." Owens further testified, contrary to Hawk,
that he handed both cups to Hawk after removing them. Chase testified that when
he spoke to Foster at the machine he "couldn't see any oil in one [cup], and
there was just a little bit of oil in the other cup." However, in an affidavit given the
Board's field examiner, Chase had stated, "there was just a little bit of oil in [both]
cups." After being shown the statement, Chase revised his testimony. He then
agreed there was some oil in one cup, somewhat less than half an inch, but more
than enough to flow into the line if the valve was open; he still maintained, however,
that in the other there was scarcely enough to cover the bottom of the cup.
Concerning the position of the cutoff levers or "rabbit ears" on the oil pumps,
Chase testified that they were down, i.e., in a cutoff position. In that respect Chase's
"The question was asked of Chase during cross-examination immediately after he had
testified that the life of a shaft in ordinary use may be as little as 2 weeks.
27 The third bearing is lubricated by grease.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony stands alone. Hawk testified that he did not check to see whether they
were up or down. Owens testified he did not notice.
C. Analysis and evaluation of evidence and concluding findings
The broad question to be decided here is whether Foster would have been dis-
charged but for his union activities. The Board's decision in Cases Nos. 15-CA-999
and 15-CA-1094, shows beyond question that the Respondent was violently opposed
to the Union, antagonistic to employees active in its behalf, and prone to reprisal
measures against such employees. Foster, discharged during an active period of
union organization, was one of the most prominent union proponents in the plant-
next to Cook, perhaps the most prominent-and his union activities were known to
the Respondent. There is specific evidence, i.e., Personnel Director Newman's
statement to employee John Henry Smith in June 1957, that the Respondent was
desirous of ridding itself of Foster because of his union activities; Newman's resig-
nation request of Foster a week before Foster's discharge suggests as much. The
element of motivation is thus clearly established.
All this, of course, does not alone prove that Foster's discharge was unlawful.
Foster's union activities did not grant him immunity from discharge for proper
cause. The Respondent's contemporaneous flagrant unfair labor practices and
strong antiunion attitude may require that its stated reason for Foster's discharge
be subjected to closer scrutiny. But it does not remove the burden which is on the
General Counsel to show that it was not the stated reason but the union reason
that prompted the action.
In this case, however, I believe that burden has been met. From my consideration
of all the testimony and appraisal of the witnesses giving it, I am persuaded that a
fair preponderance of the more credible evidence supports the conclusion that the
stated reason was not, hence by reasonable inference the union reason was, the
true reason for Foster's discharge. The basis for my conclusion is explicated below.
The asserted "cause" for Foster's discharge is that he failed to follow instructions
to keep the glaze machine bearings oiled, thus causing damage to the machine. It
must be noted at the outset that the assigned basis for the discharge is not the
damage to the machine, but the failure to follow instructions. The Respondent
does not claim that it regards its machine operators as, in a sense, insurors of its
equipment, holding them responsible for damage thereto even when the employees
are without fault; nor can it, for the evidence in this case is to the contrary. The
alleged damage to the machine is relevant only as it may tend to supply circum-
stantial confirmatory evidence that Foster failed to do what he was supposed to do.
Specifically, the Respondent claims Foster failed to follow instructions in that he
operated the machine (1) with the oil cups dry of oil, and (2) with the "rabbit
ears" in a cutoff position.
On the issue of whether the oil cups contained oil, the Respondent relies on the
testimony of Chase, Hawk, and Owens; the General Counsel, on that of Foster and
Wyatt, all as set out above. The testimony of the Respondent's witnesses, as has
been shown, was contradictory and vacillating, appeared to me to be marked by a
pointed effort to cover up for the Respondent, and impressed me, both when given
and as set out in the record, as unreliable. On the other hand, though Foster was an
interested witness, a factor I take into account, Wyatt was not. Wyatt had no reason
to fabricate, and, as one still employed by the Respondent, I believe he would have
been reluctant to do so adversely to the Respondent in any event. By his demeanor,
he impressed me as truthful. I credit his testimony, and find in accordance therewith
that when the pump was shut off one of the oil cups was about one-half full and the
other close to a quarter full.
On the question of whether the cutoff levers were then up or down, only one wit-
ness, Chase, claims to have then observed the position of the levers, and he says they
were down. Foster testified-with what I consider commendable candor rather than
a purpose to equivocate-that he had no specific recollection of noting the position
of the "rabbit ears" earlier that morning. He was sure, however, that they must have
been in a flow position, for he distinctly remembered looking through the peepholes
after filling the oil cups that morning and seeing the oil dripping from the cups into
the lines, a condition possible only if the levers were up. Foster further testified
that after the machine was cut off he took no special notice of the position of the
"rabbit ears." He avers that he had no reason to do so as they were not called to his
attention. He has no recollection of Chase saying anything to him on the subject.
Other testimony also' bears importantly on the same factual issue. Thus, Foster,
testified that, he filled both oil cups at 7 a.m., and his testimony in that respect was
corroborated by Cook. There is no dispute that the oil cups were substantially less
than full 2 hours later when the pump was cut off. If in fact the cups were filled at
JACKSON TILE MANUFACTURING COMPANY 229
7 a.m., the subsequent subtraction must mean the levers were in a flow position. On
the other hand, witnesses for the Respondent averred that subsequent examination
of the pump in the U-joint coupling area under the housing showed the bearings and
shaft to be burned through lack of lubrication. If so, this would be evidence tending
to support Chase's testimony that the "rabbit ears" were down. It would not, of
course, establish per force that the flow of oil was cut off at the cups-the stoppage
might still be due to some other obstruction or mechanical defect 1s-but that would
be a matter going to weight, not relevancy.
After taking into account and evaluating all the conflicting testimony, I am con-
vinced that the weight of credible evidence is on the side of the General Counsel on
the "rabbit ears" issue. My conviction is supported largely by the following
,consideration:
1. Foster had worked on the job for a year. It was a routine procedure for him
to fill the oil cups at the beginning of the day and to check the flow of oil into the
lines. The fact that he never failed to do this before does not of course prove that
he may not have been negligent on the day of his discharge, but it makes this
unlikely.
2. Foster's testimony that he filled the cups on the morning of his discharge was
supported by convincing detail and appeared to me to carry the stamp of conviction.
It is not disputed that on the day of his discharge Foster had also insisted vigorously
that he had done so. Foster's testimony in this respect was persuasively corroborated
by Cook, who by his general demeanor and overall testimony, impressed me as a
credible witness.
3. Chase's testimony that he observed the "rabbit ears" in a cutoff position does not
impress me as reliable. His accompanying testimony that he noticed at the same
time that "one cup didn't have any oil in it and the other cup just a little bit at the
bottom" has been discredited, partly on the basis of Chase's own prior inconsistent
affidavit and subsequent admission-thereby also reflecting adversely on his credi-
bility as to the point at issue. Moreover, Chase's testimony in other respects-
particularly with reference to Cook's discharge-proved demonstrably incredible. I
attach much weight, too, to the fact that Chase's testimony was not corroborated
either by Owens or Hawk, both of whom also saw the cups that morning. It seems
to me that if Chase had found the "rabbit ears" down, he would at least have called
that to the specific notice of Hawk, who as maintenance foreman would be interested
in determining the precise cause of the alleged damage to the machine. Further, so
far as appears, nothing was said by Chase to Newman about the "rabbit ears" being
down, nor by Newman to Foster. The specific accusation made at that time was
that Foster had damaged the machine by not having oil in the cups-an accusation
which Foster denied, credibly it has been found.
4. If the "rabbit ears" were down, it would mean that the oil flow was cut off for
at least 2 hours before the pump was stopped. I consider that unlikely in the light
of Hawk's testimony that with "the motor turning up at 3600 RPM . . . and no oil
in the bearings [it] would whip the shaft so fast it would beat it out in nothing
flat."
5. There are a number of contradictions and inconsistencies in the testimony of
the Respondent's witnesses concerning the damage to the pump, and the alleged
cause of it, that tend to render their testimony suspect in that regard. Thus, for ex-
ample, the assertion by some of the witnesses that the bearings were "completely"
burned out and the shaft "eat up" and a complete loss, does not square with Chase's
admission that the pump immediately before it was shut off seemed to be functioning
normally, except for a slight noise. Undisputed evidence in the record shows that
normally where bearings become worn or the shaft becomes damaged, the condition
is flagged not only by a loud rattling noise but by a malfunctioning of the pump.
Further, Owens' testimony concerning the third bearing and the damage to the pack-
ing nut, not mentioned by the other Respondent's witnesses, suggests that the major
:damage, if any there was, was caused by a condition other than a lack of flow of oil
18 Two of the Respondent's witnesses-Hawk and Owens-conceded that it was "pos-
sible" for the oil lines to get clogged up through trash or water getting into the oil.
Another, Landon, testified to the contrary, but I do not find his testimony persuasive.
The record shows that the Respondent's maintenance employees followed a standard pro-
cedure whenever a pump was brought there for repair to wash out the lines with kero-
sene and to run a rag through the lines to clear out any foreign matter that might clog
them. Indeed, that precise procedure was followed in the case of the lines removed
from Foster's machine. Hawk testified that the rags run through Foster's lines showed
no evidence of foreign matter or of oil in the lines . But he also conceded in effect that
even if there were, the earlier application of kerosene would have washed it out.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the cups. Finally, it is to be noted that Hawk's and Landon's testimony that
the shaft was badly eaten up and no longer usable, is not fully supported by Stuenkel
who testified that the shaft was simply discolored, and is markedly at variance with
Chase's testimony that only the bearings, and not the shaft had to be replaced.
There is disputed testimony in the record which, if credited, would tend to support
the General Counsel's assertion that there was nothing wrong with the pump, and
that the Respondent created the entire 'incident as a pretext to discharge Foster.
Whether such testimony should be credited, and whether, if credited, enough would
appear to support a finding to that effect, are questions, however, I consider unnec-
essary to resolve. I am satisfied in any event, for reasons already set forth, that
even if the Respondent in good faith believed the pump was out of order at the
time, it had no valid basis for believing Foster at fault, but seized upon the occasion
as an excuse to fire Foster who was persona non grata with it because of his union
activities. Among the circumstances indicating that the Respondent was more intent
upon finding an excuse to discharge Foster than in establishing responsibility for
the pump trouble are the following: (1) Chase's failure to apprise Foster of possible
machine trouble before calling Hawk; (2) the haste with which Chase in effect
accused Foster of not having oil in his cups before ascertaining the true facts; (3)
Hawk's equal haste in announcing that the pump was burned out and Foster at.
fault, though the pump had been functioning normally up to that time, its condition
could not be definitely ascertained until the housing was removed, and no facts were
then available to Hawk to indicate that Foster had not carried out his duties; (4)
the fact that Foster was immediately taken to Newman's office and recommended
for discharge on the ground that he had burned out the pump, though the precise.
condition of the pump had not yet been determined by removal of the housing;
and (5) the disclosure in Owens' testimony that the Respondent did not disassemble
the pump while purporting to make an investigation of the cause of the trouble.
On all the evidence, and for the reasons above set forth, I conclude and find that
Foster was not discharged for the reason assigned by the Respondent, but rather
was discharged because of his union activities. By such discharge, I further find,.
the Respondent violated Section 8(a)(1) and (3) of the Act.
D. The suspension and discharge of Grady Cook
1. The events leading to Cook's discharge
Grady Cook, a glazing machine operator, was employed on May 1, 1956, and:
worked until July 18, 1957, when he was suspended. The Respondent concedes.
his competence as an employee. Cook joined the Union in June 1956, and prior to
his discharge became one of the leading, if not the leading, employee organizers in
the plant. During the spring of 1957, he visited the homes of numerous employees
with Union Organizer Everett Kanatzar. According to his testimony, he spoke
about the Union to about 65 percent of the Respondent's employees, and succeeded'
in obtaining about 10 to 12 designation cards. He was in almost daily contact with-
Union Organizer Kanatzar.
The record shows that the Respondent through its employee informers was advised
at least in part of Cook's union activities. There is also specific evidence that
Personnel Director Newman viewed Cook's activities with antagonism. Thus, as:
found above in the discussion of Foster's case, Newman on one occasion in June-
1957, inquired of employee John Henry Smith whether Cook and Foster had been
talking to him lately about the Union. Upon being told that they had not, Newman
remarked, "Well, I wish they'd mention it to you on company time sometime,"
thereby implying, as has earlier been found, that Newman would welcome an
excuse to discharge Cook and Foster. Thus, too, as appears from the testimony of
Lloyd Graves, a foreman in the Respondent's employ until the end of 1957, New-
man, in the course of a conversation with Graves in May or June 1957 concerning
employees who might be participating in the Union, remarked that he knew Cook
was active and that he would "give his right arm" to get Cook out of the plant.19
The story of Cook's termination begins with certain incidents which occurred on
July 19 and 20, 1957, and which have already been reported in the discussion of
the Foster discharge case. It will be recalled that following the "coke machine"
incident on July 19, Cook and Foster 'received reports or rumors from fellow
employees indicating to them that they were under surveillance by the Respondent
ID Graves' testimony although denied by Newman, is credited. Graves, disinterested
in the outcome of the case, impressed me as a credible witness. He was not cross-examined
by the Respondent.
JACKSON TILE MANUFACTURING COMPANY 231
because of their union activities and that the Respondent was seeking to get rid of
them; further, that Cook and Foster, as a result of what they had heard, asked for
a meeting with Personnel Director Newman and were allowed to see him separately.
When Cook met with Newman on June 20, he told Newman of the reports he
and Foster had received that the Respondent was preparing to fire them. Newman
in effect denied the truth of the reports and then went on to press Cook to reveal
the sources of his information. Cook, however, declined to divulge the identity of
his informants on the ground that he did not want to jeopardize their positions.
Newman stated that unless he knew from whom Cook obtained his information,
there was nothing he could do about tracing down the reports. That was about all
to the incident. Nothing further was mentioned about the matter until the time
of Cook's suspension, about a month later.
On July 16, 1957, Foreman Hawk approached Cook at his place of work, and
said, "Cook, you've got a lot of friends in your department, haven't you?" Cook
replied, "Well, I hope so, Hawk." Hawk then said, "Well, I thought I would tell
you that some of the employees in your department are signing statements against
you that you are violating company rules [against] soliciting on company time."
Cook told Hawk that he had never in fact violated the Company's no-solicitation
rules and that he was ready to confront his accusers to deny their alleged statements.
He asked Hawk to name the employees who were charging him with the rule
violation. But at that point Hawk simply turned and walked off.20
That evening, after consulting with Union Organizer Kanatzar, Cook sent the
Respondent by registered mail, with a copy to the Board's Regional Office, the fol-
lowing letter:
JACKSON, MISSISSIPPI,
Mr. JAMES G. NEWMAN, Personnel Manager
Jackson Tile Manufacturing Company
Jackson, Mississippi
July 16, 1957.
DEAR MR. NEWMAN: This morning I was told by Foreman Hawks that two
or three employees in the Glaze Application Department was willing to swear
that I had solicited them for membership in the union. This a deliberate lie as
I have strictly observed all plant rules and I have been very careful to refrain
from talking union during working hours. It is obvious that employees have
been questioned and urged to make these false statements against me. There-
fore not only are these persons lying but are a part of a plan to coerce and
intimidate me.
As you know, I have discussed with you in person certain threats made by
agents of the company that I was to be discharged for my activity and member-
ship in the union. I would appreciate again the opportunity to discuss this
matter with you in the hopes that this matter can be cleared up.
You are aware and probably know that I am a member of the Union. Being
a member of the union is a legal right which the company can not for long
deny me or any other employee. As a member of the union I have been
instructed by union representatives not to solicit union membership during
working hours, this advice I have followed to the letter.
My purpose in calling this matter to your attention is to see to it that my
rights as an American are not denied me by threats , intimidation , coercion
and discrimination.
As an employee and a member of the union I invite your cooperation to make
more tile and less trouble.
Yours truly,
cc: National Labor Relations Board
Fifteenth Region
820 Lowich Building
2026 St. Charles Ave.
New Orleans 13, Louisiana
(S) GRADY COOK.
,On the afternoon of the following day, Cook was summoned to Newman's office.
Present there , in addition to Newman , were Mrs. Hunter , the assistant personnel
director, and Joe Jack Hurst, the Respondent's attorney. Attorney Hurst questioned
20 The findings in this paragraph are based upon Cook's testimony. Hawk denied mak-
ing the statements attributed to him. Cook's testimony was replete with detail as to time,
place , and content, and tinder all the circumstances appears to me to be entirely plausible.
I consider it highly unlikely that Cook would have contrived this Incident. Hawk's bare
denial was unconvincing . I credit Cook.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cook at length about the letter, while Mrs. Hunter took shorthand notes of what was
said. Attorney Hurst appeared to be particularly interested in why the letter was
sent by registered rather than by ordinary mail, who was responsible for writing it,
what purpose was intended to be served by the letter, and what ought to be done
about it. Cook suggested that Hawk be called to the meeting and asked to identify
the persons who were signing statements against him. When Hawk arrived, Attorney
Hurst asked him if he remembered having a conversation with Cook the previous
morning. Hawk at first denied that he and Cook had any conversation at all, but
later, when Cook brought to Hawk's attention that another employee, Bill Warren,
was with Cook when Hawk first approached his machine, Hawk stated that he might
have asked Cook how his "machine was running or something like that." However,
he still denied making the specific statements Cook attributed to him.21 At that
point, Attorney Hurst pressed Cook to state whether he was calling Hawk a liar.
Cook declined to make any such broad declaration. "No," he stated, "[he] wasn't
calling Mr. Hawk a liar, but it was obvious someone was telling a lie, the employees
who were signing statements against [him]." In response to further questioning,
Cook agreed that he was the one to be held responsible for writing the letter. At
the conclusion of the meeting, Newman told Cook to return to work.
Early the next morning, July 18, before work began, Foreman Chase told Cook
to accompany him to Newman's office. On the way to the office, and again after
they arrived there, Chase accused Cook of filing "a bunch of charges against the
Company last night," an accusation which Cook then denied. Chase told Newman
that production was off in his department for the "last day or two," drawing from
Cook the comment that production had not been off on his machine as might readily
be verified from a check of the production records. Chase then added that in any
event he did not want anybody in his department causing trouble. At that point
Newman told Chase to return to his department.
After Chase left, Newman asked Cook to retract his letter, but Cook refused to
do so. Newman then brought up the subject of Cook's visit to him a month before,
when Cook had referred to reports he had received that the Company was seeking
to get rid of him and Foster. As appears from Cook's undenied testimony, Newman
said, "Grady, if you can't tell me who the people was that told you that the Company
was after you, it looks like we are going to let you go. If you tell me who they are
we'll call them in and see what we can do about it." Cook, however, adhered to the
position he had taken on June 20, and declined to divulge the names of his inform-
ants on the ground that the reports had been given to him in confidence. At the
end of their meeting Newman advised Cook that he would either have to retract
his letter or stand indefinitely suspended from employment until such time as he
substantiated the charges he had made. Cook thereupon left the plant, never to
return to work.
That same day, following Cook's suspension, Chase called a meeting of the em-
ployees of the glaze applicating department. Chase told the assembled employees
that Cook had been indefinitely suspended because of the letter he wrote the
Respondent. -
Prior to Cook's suspension, his letter to the Company had been left as a private
communication to the Respondent (except for the copy sent to the Board) and had
not been published or circularized to employees.22 However, after the suspension-
it is not clear whether it was on the same afternoon or the following day-the
21 Cook testified that Warren was with him that morning when Hawk approached them,
but that Warren had then walked off to perform work tasks and was not in a position
to hear the conversation in question. Warren, still employed by the Respondent, corrobo-
rated Cook's testimony in that respect. Warren testified that on the day of Cook's
suspension, he gave a statement to the Respondent to that effect.
22 Newman testified that even before Cook' s suspension , Cook's letter and the charges
contained in it were known by management to be common knowledge throughout the plant.
His testimony in that respect is not credited. Newman purported to base his generalized
testimony upon (1) a report which he says Chase made to him on the morning of Cook's
suspension and (2) upon what he had "heard throughout the plant" that day. Newman's
testimony, however, was not supported by Chase. Chase conceded in effect that Cook's
letter more likely did not become generally known until after the issuance by the
Union of the leaflet later to be referred to. At another point he testified that he him-
self did not know of the letter until Newman called him Into his office on the morning
of the suspension. Moreover, plant talk that day, if any, could not have come to New-
man's ears before the suspension , for it will be recalled that Cook was called to New-
man's office before work began that day and that his suspension followed shortly
thereafter.
JACKSON TILE MANUFACTURING COMPANY 233
Union issued and distributed to plant employees a leaflet protesting Cook's indefinite
layoff and setting forth in full the Union's version of what occurred. Attached to
the leaflet was a copy of the letter which Cook had sent the Respondent. Distri-
bution of the leaflet was made by Cook, among others.
On July 22, 1957, Cook wrote Newman, protesting his suspension and stating that
he was still available for employment. Newman replied under date of July 24,
1957, stating that unless Cook presented evidence before August 1, 1957, "to sub-
stantiate the charges which you made against one of our supervisors and concerning
other matters," Cook might consider his suspension permanent.
Nothing more of consequence occurred, and, on August 1, 1957, the Respondent
terminated Cook finally.
2. The Respondent's asserted reasons for Cook' s suspension and discharge
Cook's termination notice states that he was suspended "because of talk and actions
against the Company and other employees" and that he was subsequently discharged
because of his failure "to prove the charges he made."
The Respondent called two witnesses-Chase and Newman-to support the action
it took against Cook. Chase's testimony on this subject was vague, contradictory,
confusing, in material respects inconsistent with otherwise clearly established record
facts, and generally unimpressive.23 According to Chase, it was he, and he alone,
who made the decision to suspend Cook. The principal reason influencing his
decision, he would have it appear, was that Cook had bypassed him by addressing
the letter of July 16 directly to Newman. This, he says, contravened company in-
structions to employees to take up their grievances directly with their department
foremen. He claims to have been "shocked" by Cook's conduct in going over his
head, explaining that such conduct would have the effect of undercutting his au-
thority as foreman. An additional reason indicated by Chase-although his testi-
mony in this respect is somewhat confusing-was that Cook in his letter had attrib-
uted to Hawk certain statements which Hawk had denied making, and which in his
opinion Cook had failed to substantiate. Chase specifically referred to Cook's
assertions of what Hawk had said concerning information received by Hawk from
employees. Chase testified that if those assertions by Cook were allowed to stand
unretracted and unpunished, he felt it would prove damaging to the morale of his
department and would impair the confidence of employees in their supervisors.24
Newman, contrary to Chase, testified that the decision to suspend Cook was not
Chase's alone, but a joint decision by the two. (From the chronology of events set
out above, however, I am satisfied that the decision was primarily Newman's and
that Chase had little, if anything, to do with it.) Newman did not refer to the
bypassing of the foreman as a reason for the suspension action. According to
Newman, Cook was suspended primarily because of the accusation he had made
against Hawk in his letter. Newman explained that he viewed the letter, particularly
after Hawk had denied making the statements therein attributed to him, as an attack
upon Hawk's veracity and character, which, if allowed to remain uncorrected, would
place in jeopardy Hawk's authority as a supervisor. Consequently, testified Newman,
he felt that Cook should either retract his letter or sustain the burden of proving
to the satisfaction of the Respondent that the statements he attributed to Hawk
in fact were made. Just how Newman expected Cook possibly to meet that burden
of proof-since it was at best Cook's word against Hawk's; since Newman was then
aware, as his own testimony reflects, that there were no witnesses to the actual
conversation; 25 and since Newman felt that presumptive credit must be given Hawk-
Newman's testimony does not make clear.
From the Respondent's brief, and the authorities it cites, it appears that the
Respondent relies upon the testimony of Chase and Newman, as set out above, and
rests its defense basically upon the following two grounds that: (1) Cook was
insubordinate in going over his supervisor's head to address his complaint directly to
Newman, and (2) Cook made false, improper, and offensive charges against the
=To the extent that Chase's testimony is Inconsistent with the facts that have been
found above, it is not credited.
24 To Illustrate, Chase gave the following example : "Well, if I've got a grievance I
wouldn't want to take it to him [foreman ] because it may be In confidence and It would
be all over the •plant."
Zs Newman testified that at the meeting attended by the Respondent's attorney the
day prior to the suspension , Cook, though first stating that his conversation with Hawk
had been witnessed by another employee (presumably Warren), had later conceded
that that witness had walked away before the actual remarks in question were made.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, specifically against Foreman Hawk, which he refused to recant and
failed to substantiate to the satisfaction of the Respondent, thereby disclosing an
insubordinate attitude toward management that rendered him unfit for further
employment.
3. Analysis and conclusions
The first of the Respondent's two asserted grounds may be quickly disposed of.
The record is clear, and I find, discrediting Chase's testimony to the contrary, that
Cook's claimed insubordination in going over Chase's head had no significant bearing
upon the Respondent's decision to suspend and later to discharge him. No such
reason was stated to Cook at or prior to the time of his suspension, nor in the
Respondent's letter to Cook that followed, nor in the termination notice; nor did
Newman, who it has been found was the principal actor in the suspension action,
advert in his testimony to any such consideration as a basis for the action taken.
That assertion comes now as a transparent afterthought.
The Respondent's second asserted ground-the one related to accusations Cook
made in his letter-was, of course, clearly indicated as a moving reason for the
suspension and ultimate discharge. There may perhaps be some question as to
whether the stated reason was the real reason, or merely a pretext, for the action
taken. There are undoubtedly circumstances present in this case tending to indicate
that the Respondent, or at least its personnel director, Newman, was anxious to
come upon some acceptable excuse to get rid of Cook, ostensibly for cause, but ac-
tually because of his role as the plant's outstanding union proponent. Whether the
total circumstances add up to enough to warrant a reasonable inference that Cook's
letter was simply seized upon by the Respondent as a convenient pretext to eliminate
Cook because his previous union activities had already made him undesirable to the
Respondent as an employee, is, however, a question that need not be reached for
purposes of decision here. Accepting the position of the Respondent that Cook's
letter to Newman of July 16 was the impelling reason for his separation, I think
it clear nevertheless that the action taken was violative of the Act-and this for the
reasons that follow:
Cook had not in fact violated the Respondent's no-solicitation rule. He was
therefore justified in assuming from Hawk's declaration that employees were signing
statements accusing him of such a rule violation that the Respondent, on the basis
of false evidence was seeking, or at least considering, discriminatory action against
him. From Hawk's remarks, Cook could also reasonably infer that if employees
were willing falsely to swear that he had violated the no-solicitation rule, the em-
ployees must have been questioned by management representatives and prompted
to do so. Of course, if Hawk's assertions were untrue, the very making of them
reflected a coercive design. In any event, Cook was warranted in concluding from
what Hawk said to him that the Respondent was seeking to restrain him in the
exercise of his statutory rights. In effect, Cook's letter did no more than call these
matters to the Respondent's notice.
In addressing his letter to the Respondent-with a copy to the Board's Regional.
Office-Cook's declared purpose, and I believe his true purpose, was simply to defend
and protect his statutorily guaranteed right to engage in union organizational
activities, free from employer discrimination, coercion, or restraint. Since his letter
was in furtherance of that right, it was in itself an exercise of that right, and, as
such, was protected conduct under Section 7 of the Act.26 The Respondent's sus-
pension and discharge of Cook for having exercised a right safeguarded by Section 7
was therefore on its face violative of Section 8(a)(1) of the Act. And since, under
2GCf. Personal Products Corp., 108 NLRB 738, 749; Serve-Air Aviation, Stallings Air
Base, 111 NLRB 689, 704. The cited cases hold that the filing of charges, or the giving
of testimony relating to unfair labor practices, is embraced within the coverage of Sec-
tion 7 as activities for mutual aid and protection that employees have a right to engage
in without coercion or restraint. Although perhaps not precisely in point, the cited
cases are nevertheless analogous in that they flow from the basic premise that the de-
fense and protection of guaranteed rights is inherently a part of the exercise of such
rights. This, too, may be noted : The Respondent was aware at the time of Cook's
suspension that a copy of his letter had been addressed to the Board's Regional Office.
Although not a formal charge on the Board's official form, the contents of the letter
may be viewed as falling within the broad purview of "charges" as used in Section
8(a) (4) of the Act. It is fairly to be inferred that the demand for the retraction of the
letter which the Respondent imposed as a condition for Cook's further employment
included a demand for the withdrawal by Cook of the copy of the "charges" be had filed
with the Board.
JACKSON TILE MANUFACTURING COMPANY 235
all the circumstances here present , the action taken was such as inherently to dis-
^courage membership in the Union, it was also violative of Section 8(a)(3).27
It is quite true, as the Respondent urges, that the statute does not protect every-
thing an employee may say or do in the course of union or concerted activity.
Reprehensible behavior by an employee though occurring in the course of such
activity may remove an employee from the Act's protection. Perhaps such a situa-
tion would have been present here had the record established that Cook's accusations
were false; in that event an inference might also have been warranted that they
were malicious 28 But, as has been found, Cook's letter truthfully reported the
substance of what Hawk had said, and the related comments there made were based
upon inferences that Cook could validly draw. The record thus supports a finding
that Cook in writing to Newman acted in good faith, without malice, and for a
proper purpose. Under these circumstances, even if it be assumed that the Re-
spondent sincerely, albeit erroneously, believed that Hawk had not made the remarks
attributed to him, and in good faith suspended and discharged Cook for making
what it therefore mistakenly considered to be false and malicious accusations, this
would provide the Respondent with no defense. For though the Respondent's con-
4duct might not then be viewed as morally censurable in itself, it must be remembered
that Cook, too, was free from blame, and as between Cook who was the victim of
the mistake and the Respondent who made the mistake , it is only just that the
Respondent bear the burden of its own error rather than shift that burden to Cook
who could not guard against it and whose statutory right was infringed by it. The
law is clear that once it is otherwise established by the primary facts that an em-
ployee's statutorily protected rights have been trenched upon by his discharge, it is
immaterial to a finding that the law has been violated that the discharge was based
upon a mistaken belief and not motivated by union hostility or ill intentions. As
was explained in a parallel situation by the Court of Appeals for the Third Circuit
in Cusano v. N.L.R.B., 190 F. 2d 898, 902-903:
Petitioner urges . that whether or not a discharged employee actually makes
a false statement is irrelevant so long as the employer reasonably believes he
did and so long as the employer actually discharges the employee on the
strength of that belief. It is true that an employer may discharge an employee
for a good reason, a bad reason, or no reason at all. . . . This rule, however,
is necessarily limited where an employee is engaging in activities protected by
the Act. . To adopt petitioner's view would materially weaken the guar-
antees of the Act, for the extent of employees' protected rights would be made
to vary with the state of the employer's mind. We conclude that if the conduct
giving rise to the employer's mistaken belief is itself protected activity, then the
employer's erroneous observations cannot justify the discharge.
Accord: N.L.R.B. v. Industrial Cotton Mills, 208 F. 2d 87, 91 (C.A. 4); 29 Salt
River Valley Water Users' Association v. N.L.R.B., 206 F. 2d 325, 329 (C.A.9); 30
Hill & Hill Truck Line, Inc., 120 NLRB 101; The Marlin Firearms Company, 116
NLRB 1834, 1840.
Relying mainly on N.L.R.B. v. Blue Bell, Inc., 219 F. 2d 796 (C.A. 5), the Respond-
ent urges that it was nevertheless warranted in taking the action it did against Cook
because, so it claims, Cook's letter was couched in such disrespectful and offensive
language as to disclose a defiant and insubordinate attitude toward management,
thereby rendering him unfit for further service and making disciplinary action
necessary if managerial authority and plant discipline were to be maintained. But
this case does not present a Blue Bell situation. In Blue Bell the discharged em-
ployee wrote and widely circulated a letter in which she attacked the integrity and
personal character of the Company's vice president. In that case the employee in
her letter repeatedly denounced the officer as a "liar" and characterized him as a
person having "an obvious contempt for the truth." And, when called to account by
'n In any event, whether viewed as a violation of Section 8(a) (1) alone, or of both
8(a) (1) and (3), the remedy necessary to effectuate the policies of the Act would be
the same.
8For a good discussion of this subject, see, El Mundo Broadcasting Company, 108
NLRB 1270.
"Nor does the Act expose the innocent employee to the hazard of 'his employer's
mistake where the consequences of this mistake is to divest the employee of a right guar-
anteed by the Act."
30 "That the [employer] may have acted in good faith believing itself justified in dis-
charging [the employee] is not material where the activity for which he was discharged
was actually protected by the Act."
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company's officials, the employee stated "I called him a liar because he is a liar."
In the instant case, the employee (Cook) truthfully reported what a supervisor
(not his own) had told him and the inferences he reasonably drew from the super-
visor's remarks. He made no attempt to impugn the integrity or character of the
supervisor. As a reading of the letter shows, Cook put the lie not to the supervisor
but to the employees who, he was told, had informed the supervisor that he had
violated the no-solicitation rule. Any doubt as to Cook's intent on this score was
dispelled the following day when, under questioning by the Respondent's attorney,
he made clear that he "wasn't calling Mr. Hawk a liar," he was simply stating that
"some one was telling a lie, the employees who were signing statements against
[him].") Moreover, unlike the employee in the Blue Bell case, Cook did not publish
his letter for all to see; the Union did so, it is true, after his suspension, but by that
time the Respondent had already taken reprisal action, and the Union was then
entirely within its rights in publicizing the facts of the alleged unfair labor practices.
The language of the letter was perhaps strongly phrased, but under all the circum-
stances not unduly so. Considering the purpose for which the letter was written,
I do not think that what was said in it exceeded the permissible bounds of protected
activity. If Cook was defiant in his attitude, and to some measure he was, his
defiance was of the Respondent' s seeming attempt to interfere with his statutory
rights, not of the Respondent's right to exercise legitimate managerial auhority. It
is of no moment that the Respondent may nevertheless have regarded Cook's atti-
tude as insubordinate, for in determining the legality of its action, the provisions of
the Act and not the Respondent's subjective state of mind must control.
It is concluded and found that, by indefinitely suspending Cook on July 18, 1957,
and thereafter discharging him, the Respondent violated Section 8(a)(1) and (3)
of the Act.
E. The discharge of Lida Mae Harper
Lula Mae Harper was employed by the Respondent on April 9, 1956; was laid off
during a curtailment of operations in November 1956; was recalled in January
1957; and then worked until January 9, 1958, when she was discharged, discrimina-
torily according to the General Counsel. Harper, a close friend of Lee Kelly Perry,
whose name figures prominently in the findings made in Cases Nos. 15-CA-999 and
15-CA-1094, joined the Union in August 1957, was largely instrumental in winning
over Perry to the Union side, and between August 1957 and December 4, 1957,
when the representation election was held, was exceptionally active, working along
with Perry, in soliciting union designation cards from other employees in the plant.
It is reasonable to infer from her prominence in union organizational activities that
the Respondent through the informer system it maintained in the plant was
aware at least to some extent of her interest in the Union. There is also corrobo-
rated testimony which, though controverted, I credit, indicating that on one occa-
sion in the summer of 1957, while Perry was under surveillance by Foremen
Clarence Hawk and George Williams, Harper was observed, along with Perry,
meeting with Union Organizers Kanatzar and Perry.31 There is no evidence that
any management official ever made any threats or voiced any expressions of
hostility specifically directed against Harper on account of her union activities.
Harper throughout both periods of her employment worked as a fettler in the
press department, one of several departments under the foremanship of Clarence
Hawk. As a fettler, it was Harper's job to remove raw tile coming off the continu-
ally moving belt of the pressing machine, to inspect all pieces of tile for defects, to
discard the defective tile in a scrap box, and to pack the good tile into special
containers, called saggars, for further processing. She was also required to call
the presser's attention to defects and to direct the presser to stop the machine if
necessary to have the cause of the defects corrected. The Respondent conceded that
Harper was considered a fettler of average skill, but contended that although the
quality of her work was normally good she would at times have lapses. Contrary
to Harper's testimony that she had never been reprimanded for her work, the
Respondent's records show that she received four official reprimands or warnings
before her discharge. Two of these were during her initial period of employment,
prior to her layoff, and the others in September 1957 and November 1957, respec-
tively. The September reprimand, signed by Hawk, was for careless work, specifi-
31I do not, however, credit Harper's further and uncorroborated testimony, that for a
period of about 4 months thereafter she was under constant surveillance by Hawk and
Williams, who would follow her practically every time she left her house by car at
night . In this respect Harper's testimony impressed me as implausible and the product
of imagination rather than fact.
. JACKSON TILE MANUFACTURING COMPANY 237
cally for packing tile containing "stickers." 32 The written reprimand recites that
Hawk "waived 3 day suspension" but that a repetition of the same offense would
result in discharge. The November reprimand, signed by Assistant Foreman William
Robbins, was for packing tile with chipped corners. That reprimand also notes that
a repetition of the offense will result in discharge.
Harper was discharged on January 9, 1958. The reason given was that she had
packed bad ware on her last day of work, the night before. At that time Harper was
working on the night shift to which she, along with other experienced employees in
the press department, was transferred when the shift was formed shortly after the
representation election of December 4, 1957. That shift was under the immediate
supervision of Assistant Foreman Robbins, who also doubled as the inspector.
Hawk, as department foreman, directly supervised the day shift, but made it his
practice to stay on for the evening shift until the work was set up and the machines
were operating to his satisfaction.
Concerning the events of her last day's work, Harper testified as follows: The
machine on which Harper worked that evening was producing an unusually large
number of defective tile due to "stickers." Early in the shift, Hawk inquired as to
the reason for the large amount of tile in the scrap box, and upon being told by
Harper that it was due to "stickers," Hawk instructed Armond Higgins, the presser,
to wash the dies. This, however, did not correct the condition for long. Before
Hawk left that evening, Harper again called Hawk's attention to the fact that the
machine was producing "stickers," and this time Hawk turned up the heat in the
machine. Some hours later that evening, after Hawk left, Harper pointed out to
Robbins that the machine was again running "stickers." As a result, Robbins in-
structed the presser again to wash the dies.33 Shortly thereafter, Harper noticed
Robbins making a thorough inspection, piece by piece, of the Mile in the saggers she
had already packed, spending, according to Harper, more than an hour on such
inspection. When Robbins finished, he showed Harper, according to her testimony,
three pieces of tile with "stickers" on them, saying, "This is what I found in your
saggers." The next day, when Harper came to work, she was told to report to the
office. Hawk told her that, although he hated to do so, he would have to discharge
her because she had packed six saggars full of "stickers" the previous evening and
already had four reprimands on her record.
The General Counsel contends that normally a fettler would not be discharged for
packing only three defective pieces of tile in the course of a day. Harper testified
that it was not unusual for a fettler to overlook some defective tile, and that to allow
only three pieces to pass by in the course of an 8-hour day was not considered at all
abnormal. In that respect, Harper's testimony was corroborated by Kenneth
Kennedy, formerly employed by the Respondent as a quality control inspector in the
pressroom. Kennedy testified, without contradiction from the Respondent, that he
would think it is exceptionally good if a fettler only allowed three defective tiles to
pass by in the course of a shift if the defects consisted of nothing more than small
"stickers."
Except for minor details of no special consequence, the Respondent quarrels with
Harper's account of what occurred on the last day she worked in only one respect-
the amount of defective tile she packed. Robbins testified that immediately before
he stopped the machine the last time, he had observed tiles with "stickers" coming
down the belt, and that it was he who called it to Harper's attention rather than the
other way around. He decided to make a check of Harper's back saggars, he ex-
plained, because he had noticed that while the belt was carrying "stickers," she was
still packing tile. Checking back to the point where the bad tile had started, he
found that Harper had packed some 15 saggars in which at least half the tile was
defective.34 Robbins further testified that when he completed his check, he brought
Harper over to the skid on which he had placed the 15 saggars and called her at-
tention to the defective tile. Robbins conceded that he did not pull out and show the
defective tile to Harper piece by piece, except possibly for two or three, but explained
"the way they were on the skid there we could just glance down and see the bad
33 A "sticker" is a bump or dent in the tile caused by loose clay clinging to the dies
of the pressing machine. The condition is usually corrected by washing off the dies.
To prevent repetition it is also sometimes necessary to increase the heat of the pressing
machine.
33 Harper's testimony concerning the difficulties with the machine that evening was
substantially corroborated by Armond Higgins, called as a witness by the General Coun-
sel. According to Higgins , the machine had been running a large number of stickers for
several days.
81 Each sagger contains about 52 pieces.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pieces on top." Thereafter, Robbins' testimony continued, he called Hawk at home:
to find out what Hawk wanted done about it. Hawk told him to put about 10 saggars.
aside so that he could personally inspect them the next morning.
Both Hawk and Plant Superintendent Walter Steunkel testified that the following.
morning they examined the 10 saggars Robbins had set aside and thereby verified
that the saggars contained an extraordinary high proportion of defective tile. Hawk
testified that he considered Harper, not the presser, primarily at fault for the large
number of wasted tile that had been produced the night before, pointing out that if
Harper had carried out her responsibility of stopping the presser the moment the:
first "sticker" came through, the dies could have been cleaned then and the flow of
bad tile would have been stopped 10 saggars earlier. According to Hawk, the de-
cision to discharge Harper was based solely upon her careless work the night before,
coupled with the earlier reprimands she had received.
The General Counsel would support a finding of discrimination in the case of
Harper on the basis of (1) the Respondent's proved antipathy toward the Union and.
those associated with it; (2) Harper's prominence in union activities; and (3) the
absence of "cause" for the discharge. The last element he would support entirely
upon Harper's testimony that Robbins showed her only three pieces of defective tile,
and from this he would have it inferred that there could not have been more.
The General Counsel concedes in his brief that if it is found in accordance with the.
testimony of the Respondent's witnesses that Harper packed an abnormally large
amount of defective tile the last day she worked, then "obviously Mrs. Harper does
not have a case."
On the basic issue of fact involved, Harper's testimony need not be read as neces-
sarily irreconcilable with that of Robbins. It is entirely possible to credit Harper's
testimony that Robbins separately exhibited to her only three pieces of defective tile,
and at the same time credit Robbins' testimony that there were many more defective
pieces in the saggars he had checked. Indeed, Robbins did not assert that he
separately pointed out the defective tiles, except possibly for a few; rather, that he
called Harper's general attention to the saggars containing the defective tile so that
she might see for herself. As to the last point, Harper was not called as a rebuttal
witness and there is no reference to it in her original testimony.
In any event, even if the two versions are viewed as mutually inconsistent, I am
not persuaded that the Respondent' s must be rejected. Robbins, the Respondent's
principal witness, was no longer in the Respondent's employ at the time of the hear-
ing, and had no apparent interest, direct or indirect, in covering up for the Re-
spondent. His testimony as to what led him to make a lengthy check of Harper's
saggars seems plausible. Considering that the dies required a washing just before
the check was begun, it is not improbable that the saggars packed immediately before
the washing might have contained an unusual amount of "stickers." Robbins' testi-
mony as to the amount of bad tile found impressed me as perhaps somewhat exag-
gerated, but not as contrived. It was not substantially impaired by cross-examination.
Moreover, if the Respondent had wanted to invent a false situation as a cover for
a discriminatory discharge of Harper, it seems to me more likely that it would have
done so at an earlier and more meaningful time. As Harper's own testimony shows,
her own union activities ended with the election which was held on December 4, 1957,
and, so far as appears, no further organizational activities were in progress at the
time of Harper's discharge. To give significance to the timing of the discharge, the
General Counsel relies on Harper's testimony that she had mentioned to some girls
in the restroom prior to her discharge-just how long before, her testimony does not
indicate-that the unfair labor practice hearing in Cases Nos. 15-CA-999 and 15-
CA-1094 would begin about January 14 or 15, 1957. He also points to the fact that
Harper later appeared as a witness at that hearing. But there is no evidence that
Harper's casual restroom comments came to the notice of the Respondent, and even
if they had, I do not think it likely that that circumstance alone would have prodded
the Respondent to action against her from which it had refrained before. Further,
it strikes me that if the Respondent knew that Harper expected to be a witness at that
hearing, it would have preferred to have her testify while still an employee eco-
nomically dependent upon the Respondent for her livelihood.
There are, it is true, circumstances present in this case that may give rise to a
suspicion that the discharge action may have been influenced at least in part by the
Respondent's antipathy toward Harper's union activities. Thus, to mention but one,
it appears that Harper, whose competence as an employee was conceded to be average,
was the only fettler (except for probationary employees) ever to be discharged. But
though this case may not be entirely free from doubt, I am not persuaded on all the
record that a fair preponderance of the credible evidence supports a finding that
Harper was not discharged for cause, as asserted by the Respondent, and would not
JACKSON TILE MANUFACTURING COMPANY 239
have been discharged but for her union activities, as claimed by the General Counsel.
Consequently, I shall recommend dismissal of the complaint's allegations as to
Harper.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that the Respondent be ordered to cease and desist therefrom,
and take certain affirmative action in order to effectuate the policies of the Act.
Having found that the Respondent discriminated with regard to the hire and
tenure of employment of James Foster and Grady Cook, I shall recommend that
the Respondent offer them immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay suffered as a result of the
discrimination against them, by payment to each of them of a sum of money equal
to the amount he would have earned from the date of his discriminatory discharge
to the date of the offer of reinstatement less net earnings to be computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, 291-294. Earnings in any one particular quarter shall have
no effect upon the back-pay liability for any other such period. It will also be rec-
ommended that the Respondent preserve and make available to the Board upon
request, payroll and other records to facilitate the checking of back pay due.
As the unfair labor practices committed by the Respondent were of a character
striking at the roots of employee rights safeguarded by the Act, it will also be
recommended that the Respondent cease and desist from infringing in any manner
upon the employee rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. United Glass & Ceramic Workers of North America, AFL-CIO-CLC, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of James
Foster and Grady Cook, thereby discouraging membership in the Union, the Re-
spondent has engaged in unfair labor practices within the meaning of Section 8(a) (3)
of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a)( I) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices as alleged in the
complaint by reason of its discharge of Lula Mae Harper.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in United Glass & Ceramic Workers
of North America, AFL-CIO-CLC, or any other labor organization, by dis-
criminating in regard to the hire or tenure of employment or any term or
condition of employment of any of our employees.
WE WILL NOT in any other manner, interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join the aforesaid labor organization, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act.
WE WILL offer James Foster and Grady Cook immediate and full reinstate-
ment to their former or substantially similar positions without prejudice to
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their seniority and other rights and privileges and make them whole for any
loss of pay suffered as a result of the discrimination against them.
All our employees are free to become, remain, or refrain from becoming or re-
maining members of any labor organization, except as that right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a) (3) of the Act. We will not discriminate
in regard to the hire or tenure of employment or any term or condition of employ-
ment against any employee because of membership in or activity on behalf of any
labor organization.
JACKSON TILE MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Durham Coca-Cola Bottling Company and Retail, Wholesale and
Department Store Union , AFL-CIO, Petitioner. Case No. 11-
RC-1173. July 23, 1959
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to the provisions of a stipulation for certification upon
consent election duly executed by the parties an election by secret
ballot was conducted on October 15, 1958 , under the direction and
supervision of the Regional Director for the Eleventh Region among
the employees in the stipulated unit. At the conclusion of the election,
the parties were furnished a tally of ballots which showed that of
approximately 46 eligible voters, 22 were for the Petitioner, 16 voted
for no union , 1 ballot was void, and 7 cast challenged ballots.
As the challenged ballots were sufficient in number to affect the
results of the election , the Regional Director , acting pursuant to
the Board 's Rules and Regulations, made an investigation of the
issues raised by the challenges , and thereafter , on October 30, 1958,
issued and served upon the parties his report on challenged ballots,
in which he recommended to the Board that the challenges to three
ballots be overruled and that if they are not determinative of the
results of the election a hearing be ordered on the issues raised by the
remaining four challenges . The Board adopted the findings and
recommendations of the Regional Director ,' and accordingly on Jan-
nary 9, 1959 , after the three challenged ballots referred to above were
opened and counted a revised tally of ballots was issued as follows :
22 for the Petitioner , 19 for no union , 1 void ballot , and 4 unopened
challenged ballots. Pursuant to the Board 's Order the Regional
1 122 NLRB 723.
124 NLRB No. 28.