Moulton Shirt Corp.

National Labor Relations Board - Board Decisions

Nov 20, 1968

173 N.L.R.B. 882 (N.L.R.B. 1968)

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moulton Shirt Corporation and International Ladies'
Garment Workers ' Union , AFL-CIO. Cases
10 - C A - 7 2 3 6, 10-CA-7236-2 and
10-CA-7119
November 20, 1968
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, Moulton Shirt Corpo-
ration, Moulton, Alabama, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.'
DECISION AND ORDER
By MEMBERS BROWN , JENKINS,
AND ZAGORIA
On July 26, 1968, Trial Examiner Maurice S. Bush
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. He further found that
Respondent had not engaged in other unfair labor
practices alleged in the complaint and recommended
that such allegations be dismissed. Thereafter, Re-
spondent and the General Counsel filed exceptions to
the Trial Examiner's Decision and briefs in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.
The Board has considered the Trial Examiner's
Decision, exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings,'
conclusions, and recommendations of the trial Exam-
iner as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
I Respondent contends that the Trial Examiner was biased and
prejudiced with respect to certain findings of fact and law. We have
carefully examined the record and the arguments made by Respondent
in support of its contention , and are satisfied , on the basis of the entire
record, that the contention is without merit. Moreover, with respect to
Respondent 's exceptions directed to certain credibility findings made
by the Trial Examiner , it is the established policy of the Board not to
overrule a Trial Examiner's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us the resolutions
were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd.
188 F.2d 362 (C.A. 3). We find insufficient basis for disturbing the
credibility findings in this case.
In addition to the cases cited by the Trial Examiner to support his
finding that Respondent 's pre-settlement conduct may be used as
background evidence in assessing the motive or object of Respondent's
post-settlement conduct, we rely on Mohasco Industries, Inc (Laurens
Park Mill), 172 NLRB No. 237.
TRIAL EXAMINER'S DECISION
MAURICE S. BUSH, Trial Examiner- The issues in this
consolidated proceeding are (a) whether Respondent Com-
pany, Moulton Shirt Corporation, is in multiple violation of
Section 8(a)(1) of the National Labor Relations Act by reason
of various alleged unfair practices consisting of interrogations
of employees as to their union membership, activities, and
desires, and the union membership, activities, and desires of
other employees, threats of discharge to employees if they
engage in union activities, and threats of reprisals against
employees engaging in union activities, (b) whether Respon-
dent discriminatorily discharged seven employees for engaging
in union activities in violation of Section 8(a)(3) of the Act,
(c) whether two of these seven employees were also discharged
because one of them stated he would file unfair labor practice
charges with the Board against the Company and because the
other had given the Board an affidavit, all in violation of
Section 8(a)(4) of the Act, and (d) whether employee Garlon
Tyler, one of the seven alleged discriminatory dischargees, was
a supervisor within the meaning of the Act at the time of his
discharge.
The Respondent in its pleadings denies the unfair labor
practices alleged by the consolidated complaint herein as
reflected in the above-stated issues. Respondent in its answer
to the original complaint in Case 10-CA-7119 also affirma-
tively alleges that the five dischargees named in the complaint
in that case "were terminated by reason of their failure to
satisfactorily perform their duties of employment, such fail-
ures consisting of continuous mistakes, insufficient pro-
duction , absenteeism and tardiness without notice, and a
continuing attitude of insubordination " In its brief Respon-
dent takes a similar position with reference to the two
dischargees named as discriminatorily discharged in the con-
solidated complaint. Respondent in its brief also takes the
position that the aforementioned employee Garlon Tyler
either voluntarily quit his job with the Company or was a
statutory supervisor at the time of his termination and
accordingly is not subject to the provisions of the Act.
Although we agree with the Trial Examiner that any legitimate cause
for terminating Garland Jones a second time would necessarily have to
originate within the period following his reinstatement pursuant to the
settlement agreement , we note, contrary to the Trial Examiner's
finding , that such period did not constitute a new period of employ-
ment. We further note, contrary to an apparent inadvertence of the
Trial Examiner, that credited testimony establishes that Garlon Tyler, at
his termination conference , did not flatly refuse to carry out his duties
as an expediter in addition to his regular duties as a cutter, but rather
expressed a preference not to perform such additional duties.
2 Paragraph 1(c) of the Recommended Order and the fourth and
fifth indented paragraphs of the Appendix thereto are amended by
inserting the word "coercively " immediately before the words "ques-
tioning" and "question ," respectively.
173 NLRB No. 133
MOULTON SHIRT CORP. 883
The complaint herein in Case 10-CA-7119 was issued on
January 24, 1968, pursuant to a charge and an amended charge
filed by the Union on October 18, 1967, and January 12,
1968, respectively, copies of which were served on Respondent
on October 19, 1967, and January 15, 1968, respectively.
The complaint herein in Cases 10-CA-7236 and
10--CA-7236-2 was issued on March 1, 1968, and by order
therein consolidated with Case 10-CA-7119 for single trial.
The complaint in Case 10-CA-7236 was issued pursuant to a
charge filed on January 25, 1968, and a copy thereof was
served on Respondent on January 25, 1968. The complaint in
Case 10-CA-7236-2 was issued pursuant to a charge filed on
February 5, 1968, and a copy thereof was served on
Respondent on February 5, 1968
The case was tried on March 20, 21, and 22, 1968, at
Moulton, Alabama. The briefs filed herein by counsel for
General Counsel, the Respondent, and the Union have been
carefully reviewed and considered.
Upon the entire record and from his observation of the
witnesses, the Trial Examiner makes the following-
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent Moulton Shirt Corporation, an Alabama corpo-
ration, is engaged in the manufacture and sale of shirts, blouses,
and other wearing apparel at its plant at Moulton, Alabama,
where it also maintains its principal office. During the past
calendar years, a representative period, Respondent manu-
factured, sold and shipped finished products valued in excess of
$50,000 directly to customers located outside the State of
Alabama Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORAGANIZATION
International Ladies' Garment Workers' Union , AFL-CIO,
is a labor organization within the meaning of Section 2(5) of
the Act.
III. (A) BACKGROUND FACTS, INCLUDING RESPONDENT'S
LABOR RELATIONS
Jack Glaser, a resident of California, is the major equity
owner of a number of garment manufacturing companies, none
of which operate under a collective-bargaining contract. His
most recent acquistion is the plant and business of the
Respondent Corporation which he acquired on March 4, 1966,
from a previous owner who had established the business some
16 years ago in its present location at Moulton, Alabama,
presently a town of 1,700.
In the year preceding the trial herein, Respondent em-
ployed an average of approximately 220 employees. For a
number of years the Moulton plant has had a high rate of labor
turnover. In the past 12 months, Respondent's labor turnover
exceeded 100 percent.
Earlier companies acquired and controlled by Glaser are
Ancino Shirt Corporation and Santa Anita Sportswear, both of
Los Angeles, California, which together employ about 200
people Ancino was acquired 13 years ago as a union shop but
ceased to be such within 6 months and has remained
nonumonlzed ever since. Santa Anita came under Glaser's
control 6 years ago. Glaser also acquired control of Mitchell
Manufacturing Company of Corinth, Mississippi, about 6 years
ago.
Jack Glaser is assisted in the operation of the aforemen-
tioned businesses by his cousin, Milton Glaser, who owns the
remaining corporate stock of these enterprises, including that
of the Respondent. Jack Glaser is president of Respondent and
secretary-treasurer of Ancino, Santa Anita, and Mitchell.
Milton Glaser is secretary -treasurer of Respondent, President
of Ancino, and Vice President of both Santa Anita and
Mitchell
The day-to-day operation of the Moulton plant is under the
direct supervision of a resident plant manager, Alfred B.
Faeber, who has held this position since about September 8,
1967 Faeber is one of the two supervisors charged in the
consolidated complaint with unfair labor practices. Jack Glaser
makes periodic visits to the plant every other month for stays
of several days. Milton Glaser visits the plant somewhat less
frequently.
The Union commenced an organization drive at Respon-
dent's plant in Moulton in the late summer of 1966. On
February 14, 1967, an unfair labor practice complaint was
issued in Case 10-CA-6778 against the Respondent alleging
that Respondent had discriminatorily discharged six em-
ployees, including Chester Borden, Leona Borden and Garland
Jones, three of the seven alleged discriminatory dischargees in
the present case, on various dates in the month of October
1966, "because of their membership in, and activities on
behalf of, the Union, and because they engaged in concerted
activities with other employees for the purposes of collective
bargaining." That case was settled on April 4, 1967, by a
"Settlement Agreement"' which contains a "Non Admission
Clause," reading as follows. "By signing of this settlement
agreement, the Employer does not admit the commission of
any unfair labor practice." The Settlement Agreement required
the present Employer to pay substantial amounts of backpay
to each of the aforementioned dischargees and to reinstate
Leona Borden, Chester Borden and Garland Jones to their
former positions but not the remaining three discharged
employees inasmuch as they had waived reinstatement.
The Settlement Agreement also required the present Em-
ployer to post a notice to its employees reading in part as
follows
WE WILL NOT discharge employees because they join,
work for, or engage in any activity on behalf of any labor
organization.
WE WILL NOT threaten employees with discharge or
with any other action because they become members of,
work for, or engage in activity on behalf of any labor
organization.
WE WILL NOT question our employees about their
membership in any labor organization, in a manner consti-
tuting interference, restraint, or coercion in violation of
Section 8(a)(1) of the Act 2
The campaign launched by the Union in the summer of
1966 to organize Respondent's plant culminated in an election
held on June 26, 1967. The Union lost the election. The
present consolidated complaint alleges postelection Section
8(a)(1) and (3) conduct by Respondent generically identical
1 G C. Exh. 2(a) and (b).
2 The official file in Case 10-CA- 6778 reflects full compliance by
Respondent with the "Settlement Agreement" in that case.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with that alleged in the earlier complaint which the Respond-
ent in the aforementioned "Settlement Agreement" agreed to
refrain from in posted notices to its employees.
Respondent's plant has five departments. The largest is the
sewing or stitching department which employes approximately
150 to 160 people. The next in size is the pressing department
with about 40 employees. The third in number of persons
employed is the cutting department with some 16 to 20
employees. The remaining departments, shipping and main-
tenance, employ four employees each.3
Five of the seven alleged discriminatory dischargees worked
in the plant's cutting department. One worked in the main-
tenance department, but had formerly worked in the cutting
room. The remaining dischargee, Leona Borden, worked in
Respondent's sewing department, she was the wife of Chester
Borden, one of the five cutting room drschargees. An eighth
employee, not an alleged discriminatee who also testified
herein, had also been employed in the plant's cutting depart-
ment.
The Moulton plant has had three General Plant Managers
since Respondent acquired the plant on March 4, 1966.
Murray Synder had been Plant Manager for an undisclosed
period of time prior to the time Respondent took over the
plant and continued in the same capacity for a short time
thereafter. He was replaced by James Edward Mitchell some-
time in May 1966 who stayed on until September 1967 when
he was terminated. The aforementiond Alfred B. Faeber
succeeded Mitchell as Plant Manager from about September 8,
1967 and was still employed in this capacity at the time of the
trial herein in March 1968.
The Cutting Department from which five of the seven
involved dischargees were fired has been under the manage-
ment of two men in the past 10 years. Charles Adams who
became supervisor of the cutting room under the predecessor
owner of the business in 1958 was continued in that capacity
by Respondent when it took over the plant on March 4, 1966
until June 14, 1967 when he was fired. William C. Hillman
succeeded Adams from June or July4 1967 to October 24,
1967 when he was also terminated. Adams was then rehired by
Respondent as cutting room supervisor sometime in November
1967 and has held that position ever since.
(B) COMPANY KNOWLEDGE OF UNION ACTIVITIES
OF DISCHARGEES AND OTHER EMPLOYEES
The record shows that a union organizational meeting was
held at the home of Chester and Leona Borden, husband and
wife, on or about September 26, 1966. Five of the seven
alleged discriminatory dischargees were in attendance at the
meeting, including Chester and Leona Borden and all worked,
as heretofore noted, in Respondent's cutting room except
3 The number of employees shown above in each of the five
departments of the plant are as of the times here pertinent.
4 Hillman testified that he succeeded Adams sometime in the
forepart of June whereas Adams testified that he was replaced by
Hillman on July 1.
5 Respondent in its brief contends that the statements attributed by
Borden and Jones to Adams as to what he told them concerning the
Respondent 's keeping of a record of employees engaging in union
activities are not binding upon Respondent under the evidence rule that
.. statements of an agent are not binding as admissions upon his
principal unless made within the scope of the authority of the agency,
and in the discharge of the duties thereof. Statements made by one after
Leona Borden who worked in the'sewing room. The meeting
was also attended by Gene Tyler, another employee in the
cutting room who testified herein with respect to alleged
Section 8(a)(1) violations but is not alleged by the consoli-
dated complaint to be a discriminatory Section 8(a)(3)
dischargee. There were also several other of Respondent's em-
ployees in attendance at the meeting as well as two repre-
sentatives of the Union, one of whom is related to Leona
Borden. All present at the meeting signed union cards. The two
remaining alleged discriminatory dischargees, Jake Blaxton and
Wendell Naylor, were not in attendance at the meeting; they
became employees of the Company subsequent to the date of
the meeting.
The testimony of Cutting Room Supervisor Adams shows
that he learned about the union meeting at the home of the
Bordens shortly after it took place. Adams, as heretofore
noted, was discharged on June 14, 1967 (but rehired in the
same capacity some 4 months later). The next day Chester
Adams and Garland Jones called on Adams under whom they
had worked, at his home to find out why he had been fired.
The credited testimony of Borden and Jones shows that
Adams on that occasion told them that Respondent was
keeping a record of all union committee participants and
warned them against making any errors on their jobs in the
cutting room which could give the Respondent a pretext for
discharging them. Adams in his testimony admitted that
Borden and Jones called on him the day after he was fired and
that he had told them that the Company was "keeping notes
on all employees,"5 but denied that this was in connection
with employee union activities. The denial is not credited.
Adams was again in the employment of Respondent at the
time he testified and it was obvious from his demeanor and
guarded answers that he was fearful that any testimony he
offered unfavorable to his Employer could jeopardize his job.
Respondent in its brief acknowledges that alleged discrrrm-
natees Garlon Tyler, Jake Blaxton, Leona Borden, Garland
Jones, and Windell Naylor were "known active union adher-
ents," or "known members of the Union," or "well-known
union supporters." The evidence shows that the union activ-
ities of the other two alleged discnminatees, Chester Borden
and Scottie Bishop, were also well known to the Respondent.
The record as a whole supports the further finding that
Respondent regarded its Cutting Department as the focal point
of union activity in its plant.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
I Threats of reprisal and interrogations
On January 3, 1968, Plant Manager Faeber expressed open
and flagrant hostility to the Union to Garlon Tyler, one of the
his agency for or employment by another has ceased are not binding on
the latter and cannot be given in evidence against him . Statements of
this character are hearsay and subject to exclusion from evidence as
such." 29 Am . Jur. 2d . Evidence, § 665. This contention is without
merit as we are not here dealing with a "statement of an agent " as such,
whether within or outside the scope of authority , in the sense that that
term is used in agency law. See 29 Am Jur. 2d Evidence , § 662. The
statement Adams made to Borden and Jones about the Company
keeping track of union activists is not a statement of Adams as an agent,
present or past, but merely testimony as to a fact pertinent to the issues
herein within the knowledge of a former agent. In the opinion of the
Examiner any person with knowledge of such facts may testify thereto.
MOULTON SHIRT CORP. 885
cutting room employees subsequently discharged whose status
as an alleged discriminatory dischargee will be discussed in a
later section of this Decision. On that date Faeber expressed
great elation to Tyler over the fact that the Union here
involved had just recently lost an election by a vote of 3 to 1
at the neighboring plant of a garment company known as the
Lawrence Corporation.' Tyler replied that he believed the
Union would do better at the next election in Respondent's
plant. Faeber responded with the threat that "we are going to
cut you down to your knees this time," and demonstrated this
by getting down on his knees.' Tyler's credited testimony
shows that Faeber then in illustration got down on his knees
and said, "This is where you are going to be "
On an earlier occasion Garlon and his brother, Gene, also a
cutting room employee, were involved in an incident with
Plant Manager Faeber. The two brothers were observed by
Faeber leaving the union hall across the street from the plant
to return to work during the noon hour of December 11,
1967. When they reached the plant, Faeber encountered Gene
and told him in the presence of Garlon, "You had better watch
the company you are keeping." A little later, Faeber looked up
Garlon at his work station and asked, "What were you doing
coming out of that damn union hall9" When Garlon replied
that he had "some damn good friends down there," Faeber
countered with the warning, "Well, you better not mess us up
here." Later that afternoon Faeber looked up the two brothers
in their work area. Addressing them as "You two damn
high-priced cutters," he ordered them to unload a truck, saying
to them as he issued the order, "see how that pushes you."
The unloading of trucks is outside the normal duties of
Respondent's cutting room employees and no particular reason
was shown by Respondent at the trial herein why on this day
when they had been seen coming out of the union hall they
were required to unload a truck. Faeber in his testimony
admitted the incidents and further admitted that he had asked
Garlon that noon "what he was doing coming out of the union
hall." The Examiner finds that Faeber's orders to the
employees to unload the truck was a reprisal for their union
activities
The record also shows that Faeber questioned employees in
the plant to find out the names of other employees who were
active in trying to organize the plant. Leona Borden at whose
home the Union had held its first meeting in the fall of 1966
was one of those questioned by Faeber. On September 18,
1967, shortly after Faeber became Plant Manager, Leona and
her two immediate supervisors in the sewing room were in
Faeber's office in connection with Leona's piece production
which she believed was being unfairly criticized by her
supervisors. After her supervisors had left Faeber's office,
Leona told Faeber that she believed that her husband, Chester
Borden, an alleged discriminatee, had been discharged and that
she was being criticized by her immediate supervisors because
they were suspected of being the heads of the Union which she
denied. Faeber thereupon asked, "Well, who is the head of the
union?" When Leona declined to supply the information,
Faeber told her, "I am here to find out and to straighten things
out." Leona Borden was fired 4 days later and her status as an
alleged discriminatee along with that of her husband Chester
and others will be dealt with in a later section of this Decision.
The record further shows that Faeber on or about
December 19, 1967, and again on or about January 5, 1968,
asked Jake Blaxton, a maintenance employee whom Faeber by
his own admission knew to be a union adherent, what he knew
about the Union. The finding that Faeber made such inquiries
of Blaxton is based on Blaxton's credited testimony. Faeber's
testimony herein fails to show any denial that he made the
inquiries in question and his pretrial sworn denials in this
connection are not credited as they do not have the force and
effect of testimony subject to cross-examination Faeber either
discharged or laid Blaxton off six days after he had asked him
for the second time what he knew about the Union and failed
to get an answer. Blaxton's status as an alleged discriminatee
will be determined in a later section of this Decision.
Conclusions
From the above findings based on the credited and
substantially undisputed testimony of witnesses in support of
the consolidated complaint, the Examiner finds and concludes
that Respondent has engaged in conduct in violation of
Section 8(a)(1) of the Act by interrogations and threats of
reprisal substantially as alleged in the consolidated complaint.
2. Threats of discharge
The consolidated complaint alleges several threats of dis-
charge by Bill Hillman, cutting room supervisor, to employees
if they engaged in activities on behalf of the Union. As
heretofore noted, Hillman was employed by the Company for
a short period of only 4 months between about June 10 and
October 24, 1967.
Hillman had been hired by Plant Supervisor James Edward
Mitchell, but his termination was by Faeber who had suc-
ceeded Mitchell in the short span of Hillman's tenure with
Respondent. The record shows that Faeber had been prodding
and harassing Hillman for greater production in the Cutting
Department and that this had greatly upset hum and made him
apprehensive about losing his job for some period of time prior
to his actual discharge which took place within about 6 weeks
after Faeber became Plant Manager. Hillman's disquiet during
this period was also greatly aggravated by Faeber's discharge of
Hillman's wife who had been employed in Respondent's office.
Faeber in his testimony admitted that his discharge of Mrs.
Hillman had upset Hillman. The record shows that Hillman was
so incensed about the discharge of his wife that he considered
filing "charges against the company because his wife had been
let go."
The record shows that during this distraught period just
prior to his own discharge Hillman spoke to a number of
employees assembled around his desk in the cutting room one
afternoon in late October 1967. The two brothers, Garlon and
Gene, who were present when Hillman spoke, credibly testified
6 Although the transcript herein identifies the Union involved at the
Lawrence Corporation plant as the "IBEW" (p. 369 ), counsel for the
General Counsel and for the Respondent in their respective briefs show
that the Union involved in the election at the Lawrence plant was the
same Union as here involved. The transcript herein is accordingly
corrected to show this fact.
Faeber's denial that he made that remark or got down on his knees
in illustration is not credited . Faeber, however , admits that he expressed
"satisfaction and happiness" to Tyler over the Union's defeat at the
Lawrence plant.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Hillman stated that he had been hired as Supervisor of the
Cutting Department "to get rid of the ones that was for the
Union."8 Gene Tyler further credibly testified that Hillman
accompained this remark by pointing his finger at both him
and his brother, among others, in indication that they were
marked for discharge because of their known union activities.
Gene's testimony further credibly shows that Hillman at that
time also said that "he had attended a ten-hour meeting at
Speake's office [Mr. Speake was one of Respondent's attor-
neys in the trial of this proceeding] on how to get rid of us
that was for the Union'"
The record shows that some months earlier, in July 1967,
Hillman had a conversation with Jake Blaxton, then a cutting
room employee under Hillman's supervision, concerning the
Union It is undisputed that this conversation which appears to
have been on a friendly man-to-man basis, took place at a time
Blaxton had announced to Hillman that he was quitting
immediately to take a better paying position elsewhere and
had asked Hillman to arrange for his termination paycheck.9
After Hillman had made the arrangement for the check to be
prepared, the two men admittedly spoke about the Union but
their testimony differs sharply as to the content of their
conversation. Blaxton testified that Hillman opened the
conversation by saying that he knew that there was a dispute
between the Company and the Union and "that he was sent
there to get rid of some of the boys that was for the Union and
against the Company." Asked by Blaxton who these em-
ployees were, Hillman mentioned Chester Borden, Garlon
Tyler, Windell Naylor, Garland Jones, four of the seven alleged
discriminatees herein, and others. Blaxton further testified that
Hillman told him "that he had never worked with a man he
couldn't get rid of in time with a legal cause, that he was
keeping notes of each mistake that each one made at that time
and he was going to weed them out." Hillman, on the other
hand, testified that Blaxton had said to him that there was
something he wanted to ask about and then point blank asked,
"Was you sent here to get rid of the people that were working
for the Union?" Hillman testified that he replied, "No, sir, I
was brought here to get out the production at the lowest
possible cost."
Although Hillman testified specifically with reference to the
conversation he had in June with Blaxton concerning the
Union, the record is barren of any similar direct reference by
Hillman in his testimony to the specific remarks attributed to
him in October by the Tyler brothers as related above to the
effect that he had been hired to rid the Company of union
adherents. Instead, Hillman only tangentially touched on this
subject matter by denying only that he had been hired for the
purpose of terminating union adherents, such as Chester
Borden, Garland Jones and Windell Naylor. Hillman did not
specifically deny that he had told the Tyler brothers that he
had been hired to fire employees with union leanings.
But Hillman in response to a question by Respondent's
attorney, Mr. Speake, did deny that he had attended a meeting
in Mr. Speake's law office "on how to get rid of" employees
8 Garlon Tyler placed the time of this remark by Hillman as
occurring "sometimes around November ." This was an obvious unin-
tentional error as to time as Hillman was discharged on October 24,
1967. Common experience shows that it is difficult for most people to
place with accuracy the date of past events Gene Tyler correctly placed
the time of Hillman's remark in late October when Hillman was still in
Respondent 's employment.
who were union adherents. This denial was marred, however,
by Hillman's evasive answer to a further question by Mr.
Speake as to whether he had ever attended "any meeting
anywhere with anybody at any time for the purpose of getting
rid of any employees who were involved in union activities."
Hillman's reply was, "I never attended any meetings of no kind
at Moulton Shirt." (Emphasis supplied.) This careful avoidance
of an unqualified denial carries an inference, here found, that
Hillman did attend such a meeting or meetings at places other
than the plant of the Respondent. Mr. Speake did not see fit to
offer testimony on whether a meeting took place with
Respondent's officials or supervisors at his office or elsewhere
in which he participated as Respondent's counsel for the
purpose of discussing legal grounds for the discharge of
employees engaged in union activities. Based on a careful
analysis of the record and the credited testimony of Blaxton, it
is found that key personnel in Respondent's management did
have a meeting with Mr. Speake for the purpose of discussing
legal ways and means of terminating known union adherents
from employment with the Company. The record, however,
does not contain any evidence that Mr. Speake in any way
advised Respondent's management people to engage in any
unlawful conduct under the Act. Clients frequently consult
lawyers on ways and means to circumvent the law, but this
does not impute to the lawyer the client's unlawful motives.
Mr. Speake impressed the Examiner as being a lawyer of strong
ethical quality.
The record shows that cutting room employees Scottie
Bishop, Chester Borden, Garland R. Jones, and Windell Naylor
were discharged within the last 30 to 60 days of Hillman's
tenure as superintendent of Respondent's cutting room. All
were union adherents and alleged discriminatees herein whose
status will be determined in a later section of this Decision.
Discussion and Conclusions
With the credibility finding made above that Respondent's
management people did have a meeting with Respondent's
attorney, Mr. Speake, on means of getting rid of union activists
in the plant, there remains for disposition only the question of
whether the remarks attributed by the brothers Gene and
Garlon Tyler to Hillman as of late October 1967 and the
remarks attributed by Blaxton to Hillman as of the preceding
month of July 1967 when Blaxton was at the point of leaving
the employment of Respondent, are to be credited.
The Examiner credits Gene and Gallon Tyler's testimony
that Hillman told them that he had been hired to get rid of the
union activists in his department for a number of reasons. One
is that the testimony of the Tylers impressed the Examiner as
being forthright, unequivocable, and honest. Another reason
for believing that Hillman told the Tyler brothers that he had
been hired to get rid of union adherents is that at the time the
remark was made just prior to Hillman's discharge it was
evident that Hillman no longer felt any loyalty to Respondent
9B1axton was later rehired as a maintenance employee and
discharged as of January 11, 1968. His status as an alleged discrimina-
tory dischargee under the consolidated complaint will be determined in
a later section of this Decision.
MOULTON SHIRT CORP. 887
in view of his wife's discharge from Respondent's employment
by Plant Manager Faeber and the foreboding felt by Hillman
that his own termination was imminent because of Faeber's
dissatisfaction with the production in the cutting room which
Hillman supervised. Another significant reason for crediting
the testimony of the Tyler brothers is that Hillman in his
testimony did not specifically deny that he had told them that
he had been hired to fire employees engaged in union
activities.
Similarly the testimony of Blaxton is credited that Hillman
some months earlier in July had told him that he had been sent
to the plant "to get rid of some of the boys that was for the
Union," that he had never worked with a man he couldn't get
rid of "with a legal cause," that he was keeping notes on
mistakes made by employees working under him in his
department whom he would in time weed out, and that certain
of the employees working under his supervision were marked
for discharges. The inference is clear that Hillman was keeping
notes for pretextual discharges of known union activists. This
testimony by Blaxton is credited not only because it rang true
at the trial but also because of the detail it reveals which would
be difficult of fabrication. Another reason for crediting
Blaxton's testimony is that a comparative reading of his
testimony as against that of Hillman's leaves the clear
impression of honest reporting of an incident whereas Hill-
man's testimony does not give this impression. A further
reason for crediting Blaxton's testimony is the fact that four of
the seven employees named by Hillman to him for "weeding"
were in fact discharged, although it is not here being decided
that these individuals, who are alleged discriminatees under the
consolidated complaint, were discharged discriminatorily. That
question is deferred for determination in a later section of this
Decision. A still further reason for crediting Blaxton's testi-
mony is that it ties in with similar credited testimony offered
by the Tyler brothers as to remarks made to them by Hillman
some months later in October as set forth above. Blaxton's
testimony that Hillman also told him that he was keeping
"notes" on employees with union leanings,' 0 finds corrobora-
tion in the heretofore noted testimony of Hillman's prede-
cessor as well as successor in office, Charles Adams, who
admitted that Respondent was keeping "notes" on employees.
An earlier section of this Decision shows that Adams had told
cutting room employees Chester Borden and Garland Jones
that the "notes" he had reference to were notes of errors made
by cutting room employees known to be union activists.
The Examiner finds and concludes that the allegations of
the complaint alleging threats of discharge by Respondent
through its agent and supervisor Hillman of employees who
engage in union activities have been substantially substantiated
by credited testimony.
3. The dischargees
As heretofore noted, the consolidated complaint alleges
seven discriminatory discharges. Five of these dischargees
worked in the Cutting Department. Four of these five were
discharged during Hillman's 4-month tenure as Supervisor of
the Cutting Department and the fifth was discharged under the
10 Although Blaxton did not expressly state that Hillman's "note"
taking was on employees known as or suspected of being union
adherents , it is evident and found from the context of Blaxton's
testimony that this was what he meant.
tenure of Charles Adams, who was both Hillman's predecessor
and successor. The fifth or latest dischargee is the afore-
mentioned Garlon Tyler. As to Tyler, there is a further issue as
to whether he was a supervisor at the time of his discharge.
The remaining two of the seven dischargees worked in
different departments. One, the above-mentioned Leona Bor-
den, worked in the Sewing Department. The other, the
aforementioned Jake Blaxton, worked in the Maintenance
Department, but had formerly been employed in the Cutting
Department.
Witnesses for Respondent denied that any of the seven
dischargees were fired because of their union activities or
sympathies. They testified that each of the seven dischargees
were terminated because of unsatisfactory work records,
ranging from failing to meet company established minimum
production quotas to "goofing off" on the job, except that
with respect to one of the dischargees, the reason for the
discharge was also for lack of work.
An earlier section of this Decision shows that Respondent
had knowledge that each of the seven dischargees were union
adherents prior to their discharges.
a. Scottie Bishop
Taking the dischargees in the order in which they are named
in the consolidated complaint, the record shows that Scottie
Bishop had worked for the Company for a period of some 5
years pnor to his discharge in September 1967, except for a
6-month layoff in 1963. From 1964 to the date of his
discharge he worked in the Cutting Department.
Bishop was one of Respondent's employees who had
participated in the first union organization meeting held at the
home of Leona and Chester Borden in September of 1966. On
April 4, 1967, Bishop appeared as a witness at a scheduled
hearing before another Trial Examiner in response to a
subpoena in support of the complaint in the aforementioned
pnor unfair labor practice case involving Respondent in Case
10-CA-6778 which as heretofore shown was settled without
trial. His appearance at the pnor hearing was noted by Plant
Manager Mitchell and Secretary-Treasurer Milton Glaser. After
April 4, 1967, Bishop openly wore a union button at work and
passed out union literature and authorization cards to em-
ployees at the plant.
Bishop's work was regarded as excellent by his immediate
supervisor, Hillman. His job was essentially a record keeping
job performed at a desk. It involved making production tickets
and bundle charts and called for considerable skill.
Bishop was fired by Plant Manager Faeber on Monday,
September 18, 1967. Bishop's undisputed testimony shows
that on the preceding Wednesday he left work with the
permission of Supervisor Hillman to have a tooth extracted. He
awoke the next morning with a high fever and had his wife call
in that he would be unable to come to work that day because
of illness. Being still sick the next day, Friday, he had his sister
call in to report his inability to report to work. He was still ill
on Saturday but he did not call to report inability to work
because he had not been working Saturdays and had not been
instructed to report to work that day. The record shows that
about 2 or 3 weeks prior to the week here in question, Bishop
had been hospitalized for a week for treatment of pneumonia
and pleurisy and had been home ill the week before that.
Faeber testified that the immediate cause for Bishop's
termination was his failure to report to work or call in on the
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saturday of the week here involved and the suspicion that
Bishop had been malingering. Faeber gave as further reason for
the termination that on some occasions he had observed
Bishop loafing on the job both before and after coffee breaks
and that he had twice "chewed" Bishop out for this; that
Bishop's response to such "chewing out" was to "just sit there
and look at me", and that he did not "appreciate" that
attitude. Bishop upon discharge received a termination slip
which read "for taking unauthorized breaks, failure to report
on absence and unsatisfactory performance." Faeber never
gave Bishop any written warning notices prior to his termi-
nation, but three such notices were issued to Bishop by
Faeber's predecessor, Plant Manager Mitchell. One which bears
no date was issued on or about the month of June 1967
according to the testimony of Mitchell. The printed notice
under a column headed "Nature of Violation" is check-
marked under "Attitude" and "Disobedience." Under a
portion of the notice reserved for "Remarks" appears the
statement "Left work without advising supervisor." An earlier
warning notice by Mitchell to Bishop is dated April 1, 1967; its
only marking indicating misconduct is a checkmark along side
the printed word "Absence." These warning notices were
received in evidence during the course of Mitchell's testimony
as Respondent's Exhibit Nos. 5 and 6, respectively. Bishop also
testified to receiving a written notice from Mitchell in early
September 1967 for drinking a coke at his desk while working.
The testimony of Cutting Room Supervisor Hillman estab-
lishes that the Company had no strict rules concerning
absences but on the contrary was so permissive on absences as
to accept excuses for absences for personal reasons even after
the employee had returned to work. There is evidence that the
Company had this permissive policy because of its high labor
turnover and difficulty in recruiting replacement labor for jobs
made vacant by resignations.
From the above evidentiary findings of fact, the Examiner
finds and concludes that the reasons advanced by Respondent
for Bishop's termination are pretextual. Bishop was a long-
term employee with approximately 5 years of service when
terminated. With the more than 100 percent labor turnover
experienced annually by Respondent, his tenure with Respon-
dent was outstanding and indicative of a high degree of
reliability. The quality of Bishop's work, which involved
considerable planning and preciseness, stands acknowledged as
excellent. While there is some evidence that Bishop did some
lolling at his desk, there is no persuasive evidence that it was
excessive or seriously affected his work output. There is no
evidence that his absences without advance permission or
notice were excessive or different from that of most em-
ployees. The record is moreover clear that he had a valid
reason for not reporting to work or calling in on the Saturday
prior to his termination, as he had not been working Saturdays
or requested to work on that particular Saturday. Plant
Manager Faeber nevertheless seized on his failure to report to
work or call in that day as his immediate reason for discharging
Bishop. Bishop's drinking of a coke at his desk one day for
which he was issued a warning notice was at most a trivial
offense. Bishop was discharged at a time when Respondent was
experiencing an accute labor shortage. The fact that his
discharge took place within 10 days after Faeber became Plant
Manager in itself raises a question of motive as it is obvious
that Faeber in that short period could only acquire a
superficial acquaintance with the working personnel in the
plant, including Bishop.
In view of all these circumstances, the record compels the
conclusion and finding that Respondent's real motive in
terminating Bishop was its desire to rid itself of a known union
advocate. Faeber at the trial openly indicated his union
animosity. It is found that Bishop was terminated because of
his union activities.
b. Chester Borden
Chester Borden commenced his employment with Respon-
dent on or about March 9, 1966, shortly after Respondent had
taken over the Moulton shirt plant from its previous owner. He
has been twice discharged by Respondent. His first discharge
was on October 14, 1966. His discharge at that time and that
of others gave rise to the prior unfair labor practice case
against Respondent in aforementioned Case 10-CA-6778. As
a result of the Settlement Agreement in that case under which
Respondent did not admit the commission of any unfair labor
practices, Borden was rehired by April 17, 1967, with backpay
in the amount of $1,500.
Borden was discharged for the second time on August 14,
1967. It is this last discharge which is challenged under the
consolidated complaint herein as being discriminatory in
violation of Section 8(a)(3) of the Act.
Borden was initially hired as a bundler. His duties were to
assemble in bundles the various cuts of shirt material, such as
sleeves, collars, and cuffs. This required exercise of care to the
end that all materials in each of the bundles were of the same
shade and size. Two weeks after he was hired, he was made a
shader or puller. His duties as a shader were to withdraw bolts
of shirt materials from the stockroom and to get them ready
for the spreader, who in turn spread the material on long tables
in preparation for the cutters who in due course cut the
material into the various parts required for the manufacture of
a shirt. It was the responsibility of the shader to make certain
that the first 2 or 3 yards of each pulled bolt of material
matched the shade of other bolts and to separate bolts of
different shadings so that all parts of each manufactured lot of
shirts would be of the same shade. The bolts contain many
yards of shirt material, running as high as 350 yards. It was the
responsbility of the spreader, not the shader, to spot and
separate materials within a bolt which varied in shade beyond
the first 2 or 3 yards unrolled by the shader. When Borden was
rehired on April 17, 1967 pursuant to the Settlement
Agreement in Case 10-CA-6778, he was rehired as a bundler,
not as a shader. In this new assignment, it was Borden's
specialized responsibility to bundle liners for shirt cuffs and
collars according to shades and sizes. Liners are pieces of stiff
material placed inside of cuffs and collars to give them
stiffness. Borden held his job as a bundler of shirt cuff and
collar liners until he was again discharged on August 14, 1967,
some 4 months after he had been rehired.
The record is clear that Respondent has known about
Borden's union interest and activities from shortly after the
time when the Union's first organizational meeting was held at
the Borden home in September 1966, as heretofore described.
Adams, Borden's then supervisor, admits that he heard about
the meeting. After the meeting at his home, Borden became a
union spokesman and solicited union authorization cards from
employees at the plant. Not long after the meeting at his
house, the credited testimony of Borden shows that Adams
spoke to Borden privately, telling him that he had heard "some
bad things going on amongst you boys in the cutting room."
MOULTON SHIRT CORP. 889
He also told Borden that he would be compelled "to let about
four of you go," including Borden When Borden pressed for
an explanation as to why he was to be terminated , asking if it
had anything to do with his work record , Adams declined to
state why he would have to let Borden go , but gave assurances
that the decision had nothing to do with Borden's work
performance and in this connection told Borden that "you
make me an awfully good hand, as good a hand as I have ever
had in the factory." At the trial herein, Adams described
Borden-as "a good worker" and Hillman characterized him as
being "a real hard worker." On about October 4, 1966, shortly
after Adams had told Borden that he would have to let him go
for undisclosed reasons, Borden's testimony further shows that
Milton Glaser , one of the co-owners of Respondent, engaged
him in a conversation in the Cutting Department in which,
among other matters, he asked Borden to identify the relatives
he had working for the Company. Borden identified his wife
Mattie Leona Borden who worked in the Sewing Department
and his brothers John Mark Jordan, also a cutting room
employee, and Thomas Jerry Borden, and the wife of one of
his brothers, Linda Ann. Ten days later on October 14, 1966,
Chester Borden was discharged , his wife and his brother
Thomas Jerry Jordan had been discharged on October 7, 1966,
his brother John Mark was discharged on October 4, 1966 and
Linda Ann Borden, the wife of one of Chester's brothers, was
discharged on October 10, 1966
Borden's first discharge as of October 14, 1966 was by
Adams. The credited testimony of Borden shows that Adams
on October 12 prewarned him about the discharge and told
him that the ground for the discharge would be the misshading
of materials (i.e. selecting materials for manufacture into a
batch of shirts which were not of matching shades). Upon
Borden's disclaimer of responsbihty for any mistakes in
shading, as he was not the only shader at the plant, Adams
replied , "That is what I have to tell you." Adams then went on
to say that while Borden was "an awfully good hand ," he had
no choice in terminating him as he was "paid by the company
to be a company man." Two days later when he was being
discharged, Adams handed Borden a termination slip stating
that he was being discharged for misshading . Borden refused to
sign the slip unless he was given the opportunity to show on
the slip that it was his opinion that he was being discharged
because of his union activities . Given this opportunity, he
signed the slip and received his final paychecks.
The remarks attributed by Borden to Adams as set forth
above were denied by Adams. As a witness , Adams who had
been fired and then rehired by Respondent gave every
appearance by his demeanor and his hesitant, guarded testi-
mony that he was fearful that any testimony he offered
unfavorable to Respondent would jeopardize his job. His
denials are not credited.
It is not here the purpose of the Trial Examiner to pass on
the question of whether Borden's first discharge was unlawful
as that discharge is not an issue in the present proceeding
which relates to Borden 's second discharge some 10 months
later. The circumstances surrounding the first discharge,
however, are pertinent to the second discharge as they
constitute part of the total background from which a
determination must be made as to Respondent ' s motivation
for Borden's second discharge some 10 months after his first
termination.
After Borden was rehired by Respondent on April 17,
1967, pursuant to the terms of the Settlement Agreement in
the earlier unfair labor practice case, Borden's credited
testimony shows the occurrence of the following events. From
about the day he reported to work until the representation
election lost by the Union on June 26 , 1966, Borden wore a
union button on his person and passed out union literature at
the door of the plant in the mornings prior to the beginning of
the workday . Two days after he was reinstated, he received a
warning from Supervisor Adams to be careful to avoid
mistakes as he was being watched very closely. He again
received a similar warning from Adams a few days later to "be
careful" to avoid the mixing of varying shades of cuff and
collar lining cuttings in the bundles he was making of such
linings. To avoid such mistakes , it was Borden's practice to
place separate cuttings into separate bins or on the floor when
the bins were filled , taking care to separate each cutting from
others by placing pieces of cardboard between cuttings.
Simultaneous with Adams ' second warning to Borden
against mixing cuttings , Borden observed that his carefully
placed cuttings were being deliberately mixed up by Louise
Welborn, head floorlady of the Sewing Department. She
stopped this instantly when she saw Borden watching her.
Borden in her presence silently began to "separate the cuts
back out." She then abruptly walked off. Although Mrs
Welborn testified , she did not deny this incident as related by
Borden in his testimony.
Adams, as heretofore noted, was himself fired on July 14, a
month before Borden's second termination . The next day after
work Adams received a visitation at his home from Chester
Borden and Garland Jones who came to inquire about his
separation from the Company of which they had learned only
that morning . During the course of conversation , Adams told
Borden and Jones that Hillman, his successor , was keeping a
record on the work performance of all employees on the union
committee . Reminding Borden of his prior warning to him to
be on guard against making mistakes, he now told Borden he
had then been referring to company efforts to find some
pretextual excuse for firing him . He also told Borden that the
Company was having "a hard time in getting something on you
to fire you" because he was "such a good worker ," but warned
that the Company "will get you if you don't watch it very
carefully ." The findings in this paragraph are based on the
credited joint testimony of Borden and Jones . Adams' denials
of the attributed remarks are not credited for the reasons
noted above and in a prior section of this Decision
On about August 8, 1967, just a few days before Borden
was fired , Milton Glaser , co-owner of the Respondent, spoke
to the assembled employees of the Cutting Department at the
plant In the course of his speech , he stated that he had had
reports from the Sewing Department that it had received
"mixed up" collar linings from the Cutting Department by
which he meant that some of the bundles of collar linings
contained sizes which did not fit the collars they were
intended for. Thereafter Glaser spoke individually to a number
of employees. Seeing Borden, he asked him what his job was.
When Borden replied "collar linings," Glaser turned to Plant
Manager Mitchell and asked , "You mean you have got this guy
on collar linings?" Mitchell answered that Borden was "the
best qualified man I have for the job ." Supervisor Hillman also
added , "Chester is not the only one that puts linings on the
collars." Glaser nevertheless then and there directed Mitchell
to issue a warning notice to Borden if this had not already
been done A few minutes later a sewing room employee
brought to Borden a bundle of 80 liners which had about 12
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
liners scattered throughout the bundle which were obviously
larger than the rest in the bundle. Borden called Hillman's
attention to the bundle and said to him that he knew that
"this bundle of linings were right" when he carried them over
to the Sewing Department Hillman's comment was that
"someone has mixed this up on purpose." In the ensuing
conversation, Borden said he believed some one was trying to
fire him and Hillman replied that it was he that someone was
fixing to fire. The above findings are based on Borden's
credited testimony. Neither Mitchell nor Hillman in their
testimony denied the incidents reported in this paragraph. In
his testimony, Hillman twice described Borden as being "a real
hard worker." Milton Glaser did not testify herein.
A few days later on reporting to work on August 14, 1967,
Borden was summoned to Plant Manager Mitchell's office
where Mitchell accused him of furnishing grey cuff linings
instead of white lining for a batch of white shirts which had
resulted in making some 40 dozen shirts imperfects or
"seconds." When Borden asked for the identifying number of
the grey cuff lining cut so that it could be determined whether
he or some other employee was responsible for the mixup,
Mitchell cut him off with the remark that although he had not
checked to see who had been responsible for the error, he had
no choice now but to fire him and walked away. The record
shows that the mismatching of which Borden was accused
came about as follows. On August 7, a girl from the Sewing
Department urgently called on Borden for cuff linings for
white shirts which had been completely sewed except for their
cuffs. Borden upon discovering that he was out of white cuff
linings, took a sample grey cuff lining to Hillman together with
a sample of the white cuff for which liners were wanted and
asked him if it wouldn't do as a substitute. Hillman said he
thought it would but referred him for an additional opinion to
Louise Welborn, the aforementioned head floorlady of the
Sewing Department, who also expressed her belief that the
grey cuff lining would work in the white cuffs. With this
double clearance, Borden furnished the Sewing Department
with the few bundles of grey linings he had left and the sewing
girls were thus able to finish up the cut of white shirts they
had been working on The above finding that Borden had the
approval of both Hillman and Welborn for the substitution of
grey cuff liners for the white shirts is based on the credited
testimony of Borden and the corroboration of his testimony
by employee Naylor who was helping Borden at the time.
Hillman's testimony shows that it was Borden's practice to
seek his approval for substitutions. Asked by Respondent's
counsel as to whether Borden had sought his approval for the
substitution in the incident here under discussion, Hillman
replied, "Not that I remember." The Examiner finds this
answer equivocal. Welborn offered no testimony denying the
testimony of Borden that she had approved the substitution
Mitchell offered no testimony denying Borden's testimony
that the substitution had the approval of both Hillman and
Welborn. Hillman's reply that he did not remember authorizing
Borden to make the substitution is not credited.
Borden's termination by Mitchell was made in the presence
of Hillman. The credited testimony of Borden show that
Hillman told Borden that he was sorry about his discharge as
"Borden had made him an awfully good hand" and assured
Borden that he had no part in his discharge. Hillman in his
testimony did not deny that he made these attributed remarks
to Borden, he admitted that he "may" have told Borden that
he was sorry about his discharge, but sought to pass that
remark off as a mere courtesy to soften the blow. The record
leaves no doubt that Hillman thought very highly of Borden as
a worker and that he was genuinely sorry to see him go.
Throughout his testimony, Borden gave the impression of
complete integrity. This is in accord with the reputation
Borden had acquired with Supervisors Adams and Hillman for
being "a real hard worker."
Discussion and Conclusion
The record leaves no room for doubt that Respondent's real
motive for discharging Borden was to rid itself of a known and
active union adherent and spokesman. It is clear that Respond-
ent knew about Borden's union activities practically from the
time of the first union organizational meeting held in Borden's
home in September of 1966. After Borden's reinstatement on
April 17, 1967, following his first discharge of October 14,
1967, Respondent could not help but be aware of Borden's
efforts to organize its plant as his undisputed testimony shows
that from the time of his reinstatement until the represen-
tation election at the plant on June 26, 1967, he openly
solicited union membership at the gate of the plant each
morning before the start of the day's work. The record is also
clear that the Company continuously sought some pretext to
fire Borden after his reinstatement but had great difficulty in
finding a pretext because of the high quality of his work. The
record is redundant that Borden was warned time and time
again by his supervisors to watch his step as the Company was
seeking an excuse to fire him. The record further shows that
the Company through its agents tampered with Borden's work
products for the purpose of planting mistakes which could
serve as a pretext for his discharge.
When Borden was finally discharged for the second time on
August 14, 1967, the record shows that he was fired for a
mistake in substituting grey cuff linings for white cuff linings
which in fact was the mistake of his supervisor Hillman who
had authorized the substitution. The record further shows that
when Mitchell fired Borden he was totally indifferent to the
question of whether Borden was personally responsible for the
cuff lining mixup, he told Borden when he raised the question
of responsibility for the mixup that he had "no choice" but to
discharge him and ordered his termination. Under all of the
circumstances of record as found above, the Examiner finds
that Respondent's assigned reason or reasons for discharging
Borden on August 14, 1967 were pretextual and that
Respondent's discharge of Borden was discriminatory in
violation of Section 8(a)(3) of the Act.
The finding that Borden was discriminatorily discharged is
based on Respondent's conduct subsequent to its Settlement
Agreement in prior Case 10-CA-6778. Respondent's pre-
settlement conduct furnishes additional background evidence
in support of the finding that Respondent was discriminatorily
motivated in its second discharge of Borden as of August 14,
1967. Joseph's Landscaping Service, 154 NLRB 1384, f 1"i
affd. 389 F.2d 721 (C.A. 9), Cloverleaf Cold Storage Co., 160
NLRB 1484, f 1 Respondent's combined pre-settlement and
post-settlement conduct leaves no possible doubt that Respon-
dent's second discharge of Borden was discriminatory.
i i
Joseph's Landscaping Service, supra, as followed by Cloverleaf
Cold Storage Co., supra, established the principle that conduct prior to
a settlement agreement may be considered as background evidence in
MOULTON SHIRT CORP 891
c. Leona Borden12
Leona Borden, like her husband Chester, had been dis-
charged by Respondent in October of 1966, and reinstated in
April of 1967, pursuant to Respondent's Settlement Agree-
ment in the prior unfair labor practice case She was again
discharged on September 22, 1967. The consolidated com-
plaint alleges that this latter discharge was discriminatory in
violation of Section 8(a)(3) of the Act.
Leona commenced work at the Moulton plant on August
12, 1965 when it was still under the operation of its former
owner. As heretofore noted, her husband commenced work at
the plant on March 9, 1966, only a few days after Respondent
took over its operation. During her entire period of employ-
ment at the plant, Leona worked in its Sewing Department
where she gained diversified experience, pursuant to the wishes
of her supervisors, in sewing yokes on the backs of shirts,
closing collars, stacking, changing labels, beading collars,
marking buttonholes, and trimming. She had prior experience
as a factory worker in garment plants in Alabama and Illinois
Both before her first discharge and after her reinstatement, her
principal job was collar closings
Leona's supervisors in the Sewing Department have been
Mildred Haygood, Wilma MacNamore, and the aforementioned
head supervisor Louise Welborn who had varying degrees of
personal supervision over her. During her tenure at the plant,
the factory has been under the successive managements of
Plant Managers Sinder, Mitchell, and Faeber. Her discharge was
by Faeber.
Respondent in its brief acknowledges that Leona was "a
known active union adherent." The record shows that Respon-
dent has known about her interest and activities in behalf of
the Union almost from the time of the first union organization
meeting held at her home on September 26, 1966 at which
both she and her husband signed union authorization cards.
After her reinstatement, she openly wore a union button on
her person and passed out union literature to other employees
until the representation election of June 26, 1967 at the plant.
She was observed passing out such literature after working
hours by former Plant Manager Mitchell on May 17 who
ordered her off company premises "with that literature "
Supervisor Welborn admitted that she knew that Leona was
participating in union activities in the plant.
Faeber, stating that his long training and experience in the
garment manufacturing business gave him expertness in judging
the quality of a garment worker, characterized Leona Borden
as a "good operator" with a "beautiful rhythm." The credited
and undisputed testimony of Leona shows that prior to her
first discharge she had been told by Supervisors Mildred
Haygood and Louise Welborn that they regarded her as a good
and reliable worker. The record shows that Welborn in the
months before Leona's first discharge moved Leona around to
various jobs in her department because of her confidence in
her ability and reliability and in order to train her to do many
jobs so that she could substitute for an absent worker or help
out on other jobs when needed. A few days before her first
discharge she also received a compliment on her work from the
prior owner of Respondent's plant as he was observing her
work.
Notwithstanding this high regard both for her ability and
the quality of her work, Leona was terminated in October of
1966 (her first discharge) by Welborn because of alleged poor
production. Upon her reinstatement in April of 1967, Leona
again began receiving complaints about her low production
from Welborn. She also received the same complaints from her
more immediate supervisor, Wilma MacNamore. In addition
she was receiving complaints about the quality of her work
from Welborn. Reemployed at her former job of closing
collars, Welborn one day in May criticised the collar closings
Leona had been doing that day on the grounds that they had
"hangovers" and that their "sitter stitches" showed through.' 3
Leona believed the critcism unwarranted, as she could not
upon remspection of the collars Welborn was complaining
about, see any signs of hangovers or of sitter stitches. Welborn
nevertheless insisted that she redo the collars which she did.
This involved redoing several dozen collars and had the effect
of diminishing the unit work quota expected of her for that
day The credited testimony of Leona also shows that on a
number of occasions when she returned from breaks she had
found Welborn tampering with her sewing machine. She
discovered on these occasions after she had sewn a number of
shirts that the thread on her machine had been loosened by
Welborn and that this adversely affected the quality of her
work.
After the Union lost the plant election on June 26, 1967,
Leona noted that she was being given work which did not
count towards the daily work quota expected of her. She was
asked to do collar closing on "recuts" which were orders for
additional shirts to complete a customer's order. She was given
bundles of different colored shirts for rethreading which
required changing the thread on her machine for each colored
shirt and thus consumed time she might otherwise use in
making production. She was also given from time to time shirts
on which she had already sewed labels for extra labels which
could have been done more quickly if the original order had
called for two labels. None of these special assignments
counted towards her expected production and they had the
effect of keeping her from "making production."
On September 14, 1967, Supervisor MacNamore criticised
Leona for not making production that day. Leona answered
that this was because she had been given "bad work" that day,
but asserted that she made production when she was given
"good work." The record shows that "bad work" is a reference
to shirts made of materials difficult to sew, or to shirts poorly
assessing the motive or object of Respondent 's post-settlement conduct.
Respondent contends that this rule is not applicable to the instant
proceeding because the settlement agreement in the present case
contains a "Non Admission Clause" whereas the Joseph 's case does not.
This contention misses the point of the Joseph 's case Under the ruling
in that case the pre-settlement conduct of a respondent is not
authorized for use in any way to establish the unlawful conduct in the
closed prior case , but is authorized for use solely as background in
establishing unlawful motive in a subsequently charged unfair labor
practice . The present proceeding thus does not in any way reopen the
prior complaint on the issues there involved but merely permits
evidence that might have been adduced in the earlier case to be used as
background in establishing unlawful motive in support of the later
charge of misconduct against Respondent . Respondent 's contention and
other similar arguments are without merit.
12 Leona Borden is also known as Mattie Leona Borden
13 The record is not as precise as it might be on the meaning of the
term "hangovers " Leona Borden described a hangover as meaning that
"the band of the collar sticks out too far on one end." "Sitter stitches"
appear to be the preliminary stitches affixing the collar to the rest of
the shirt . Collar closers are expected to cover up the sitter stitches in
closing the collar so that they do not show on the finished shirt.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or improperly prepared for collar closures by previous
employees on the production line, or to delays in receiving
shirts for collar closures from preceding production line
employees. Responding further to her supervisor's criticism
which she described as being "smart" in manner, Leona told
MacNamore, "Wilma, you know they have put you on me to
help get rid of me." (Leona's husband, Chester, had been fired
about a month prior to the conversation here related.)
MacNamore called Welborn over and related the remark to her.
Welborn told Leona she was expected to make production and
Leona again replied that she made production when given good
work. The incident was reported by the supervisors to Plant
Manager Faeber who had succeeded Plant Manager Mitchell
only a few days prior thereto. Four days later on September
18 Faeber called the two supervisors and Leona into his office
and asked Leona what had happened. Leona complained that
MacNamore got "smart" with her. When told by Faeber that
she had not given MacNamore a good reason for not making
production, Leona answered that she made production when
she had good work but did not get good work all the time.
Faeber replied, "I know that." Thereafter Faeber spoke to
Leona privately pursuant to request. When they were alone,
Faeber asked Leona why she thought that her supervisors
wanted to get nd of her. She replied it was because of the
unfair treatment she was receiving from them and because her
husband had been only recently discharged under company
suspicion that he was one of the heads of the Union. She
denied that either she or husband were heads of the Union, but
when Faeber asked her who was, she lapsed into silence.
During the course of the conversation Faeber told her that the
Company had lost a lot of money "on account of this union
business." He also told her that he had been sent to the plant
to find out who were the heads to the Union "and to
straighten things out." This incident is based on the credited
testimony of Leona Borden which was not denied by Faeber.
In a previous section of this Decision it was found that this
incident constituted unlawful interrogation in violation of
Section 8(a)(1) of the Act.
Four days later on September 22, 1967, Leona asked
Welborn for permission to take a few days off from work to
visit her sick mother in Chicago. Welborn asked her what her
production had been for the previous day. Not satisfied with
the figure Leona gave her, she said, "That is still not
production. Do you think you can ever make production on
this job?" As on previous occasions, Leona replied that when
she had good work she was able to make her production quota.
Welborn then told Leona that Faeber had previously asked to
see her and that she could ask him about time off to see her
mother. Welborn preceded Leona to Faeber's office where she
spoke to him privately for some 20 minutes before Leona was
called in. Faeber asked Leona if she had told Welborn that she
couldn't make production. Leona denied the remark and
insisted that she had told Welborn that she could make
production when she had good work. Referring to production
records in his hand, Faeber told Leona that two of her fellow
workers who had less experience than she had made pro-
duction the previous day, but he was corrected by Welborn
who told him that the two employees he had reference to had
been employed by the Company longer than' Leona had. At
that time there were from six to eight women engaged in collar
closings including Leona. At the end of the conference, Faeber
again asked Leona if she was still denying that she had told
Welborn that she couldn't make production. When Leona once
again denied this, Faeber told her, "You are fired." Leona was
one of three alleged discriminatees herein who were discharged
by Faeber within 5 to 14 days after he became Plant Manager.
Respondent presented into evidence Leona's earnings rec-
ord for the 5-month period of her reinstatement from April to
September 1967. (Resp. Exh. 2(a) and (b).) This shows total
earnings of $1,387.55 before deductions and total "make up"
time of $266.01. Leona received a guaranteed minimum
hourly wage of $1.40 under Federal law. Under an incentive
plan in operation at the plant employees who produce more
than the company prescribed minimum daily quota of work
units become entitled to progressive incentive pay which
increases their hourly earnings above the legally fixed hourly
minimum of $1.40. Those who do not meet the Company's
prescribed minimum quota of work units are nevertheless paid
the Federal minimum hourly wage of $1.40, but the Company
keeps an account on the payroll records for each such
employee of the number of work units the employee fell short
of meeting the prescribed daily quota. This is also shown on
the payroll records of each employee in terms of money as
well as on their biweekly paychecks and is called "make up"
time. Thus Respondent's payroll records show that Leona in
the 5-month period of her reinstatement fell short of making
the company prescribed minimum quota of work units
expected of employees in her classification by $266 01. This
amount was not, and could not, under Federal law be
deducted from her total earnings of $1,387.55 for the period
based on an hourly minimum wage of $1.40, but appears on
the company payroll records as a gauge of Leona's produc-
tivity as against company prescribed productivity standards.
Faeber testified that he considered Leona's "make up" time of
$266.01 excessive for the 5-month period. The record shows,
however, that "make up" time charged against an employee
does not make adjustments for time spent on especially
assigned work which under company rules does not count
towards the prescribed work quota, and similarly does not take
into account excessively assigned "bad work," that is, semi-
finished collars for finishing which require more time for
finishing than the average. (This is evident from Resp. Exh
2(a) and (b). It should also be noted that the exhibit does not
show "make up" time for each day of each 2-week pay period
but only the lump "make up" time for each pay period.)
On review, the credible testimony of Leona shows that the
excessive "make up" time charged to her by Respondent in the
5 months she was employed after her reinstatement resulted
from excessive assignment to her of work that didn't count
towards her prescribed daily work quota and from the
assignment to her of excessive amounts of "bad work." The
denials of Welborn and Faeber that Leona was not given more
"bad work" or more work that didn't count towards the
expected quota than her colleagues, are not credited. In this
connection it is noted that Respondent did not offer in
evidence for comparative purposes the payroll records of any
of the approximately five to seven employees who were doing
the same work as Leona.
The record shows that Respondent discharged two of these
other employees for excessive "make up" time, but that their
discharge was subsequent to that of Leona's. There is no
indication in the record as to why Leona was chosen for
discharge for excessive "make up" time ahead of these other
two employees.
MOULTON SHIRT CORP. 893
Discussion and Conclusion d. Garland R. Jones
The record requires the conclusion, here found, that Leona
Borden, like her husband Chester, was discharged because of
her union activities. As shown above, Respondent admits that
Leona was "a known active adherent." Respondent not only
knew from the moment of Leona's reinstatement that she was
a known union adherent, but was obviously made painfully
aware of this when former Plant Manager Mitchell saw fit to
order her to get off company premises when he saw her passing
out union literature after work hours in the company parking
lot. Respondent's hostility to the Union is evident from
Mitchell's successor, Plant Manager Faeber's remark to Leona
that he had been sent to the plant to find out who were the
heads of the Union as the Company had lost a lot of money
"on account of this union business" and that he had been
hired as Plant Manager "to straighten things out." In a previous
section of this Decision it was shown that Faeber had openly
bragged that he was going to cut the Union down to its knees.
Leona was the third employee Faeber discharged within 14
days after he became plant manager, all of whom were known
by the Company to be union adherents.
The record also shows that the excellent quality of Leona's
work was as well known to Respondent as the fact that she
was a known active union adherent. Leona's undisputed
testimony shows that in her first period of employment with
Respondent pnor to her first discharge she had been compli-
mented on her work and reliability by Supervisors Welborn
and Haygood. That the quality of her work had not deteri-
orated is evidenced by Faeber who even in the short
acquaintance he had with her described her as a "good
operator" with a "beautiful rhythm." The only fault he found
with her was her low production.
The credited testimony of Leona Borden, however, shows
that Respondent deliberately prevented her from making her
production quota by the combination of giving her more than
her share of "bad work" that required more than normal time
and by assigning her work that did not count towards her
quota. Respondent does not deny that such factors, if present,
would seriously affect the output of an employee. Leona, as
did her husband Chester, gave the impression of ineradicable
integrity which is in accord with undisputed testimony that
shows that her supervisors regarded her as a "reliable" person.
Her testimony that she could make production if given "good
work" is credited.
In view of Respondent's evident desire to root out union
adherents and its admitted knowledge of Leona's union
activities, it is found and concluded that Respondent's dis-
charge of Leona Borden because of her alleged below standard
production was pretextual. Moreover, it is found that Respon-
dent deliberately prevented Leona from making production by
giving her "bad work" and by assigning her work not
countable towards her expected quota. It is further found that
Respondent's motive in terminating Leona was its desire to
remove from its plant a known union activist. This conclusion
is based on Respondent's conduct subsequent to its Settlement
Agreement in the prior unfair labor practice case. Respon-
dent's conduct prior to the Settlement Agreement provides
additional background in support of the finding that Respon-
dent's motive in its second termination of Leona Borden was
discriminatory Joseph's Landscaping Service, supra, and Clo-
verleaf Cold Storage Co., supra.
Garland R. Jones, as was true of the Bordens, was originally
discharged by Respondent in October of 1966 and reinstated
in April of 1967, under the terms of Respondent's Settlement
Agreement in the pnor unfair labor practice case.
Jones was again discharged on September 13, 1967, some 5
months after his reinstatement. The pleadings raise two issues
with respect to Jones. One is whether he was discriminatorily
discharged on September 13, 1967, because of his union
activities in violation of Section 8(a) (3) of the Act. The other
issue is whether he was also discharged as of the same date in
violation of Section 8(a) (4) because he stated that he would
file unfair labor practice charges with the Board.
Jones commenced employment at the Moulton plant on
January 31, 1962 when it was still owned and operated by
Respondent's predecessor. He was at all times employed in the
plant's Cutting Department. He voluntarily quit about July 1,
1965, to operate his own plumbing business but was rehired on
or about October 1, 1965, by the predecessor company with
the express agreement that he was not to be subject to
overtime work unless he consented thereto because of his
desire to be free to engage in moonlight plumbing. He had this
understanding with the then Plant Manager Sinder and Cutting
Room Supervisor Adams. As heretofore noted, Adams con-
tinued to work as cutting room supervisor at the plant after
Respondent took over its ownership on March 4, 1966, until
he was discharged on June 14, 1967 when he was succeeded by
the aforementioned Hillman who in turn was terminated on
October 24, 1967. Adams was rehired to succeed Hillman on
or about November 10, 1967. Jones worked under the
supervision of Adams and then Hillman after the time
Respondent acquired ownership of the plant. His first dis-
charge in October of 1966 was by Adams when the plant was
owned and operated by Respondent under the resident
management of Plant Manager Mitchell. Jones was rehired on
April 17, 1967, by Respondent pursuant to the Settlement
Agreement.
In his last 2 years of employment with Respondent, Jones
was the sole marker in Respondent's Cutting Department, but
pnor thereto he had also worked as a bundler. For his work as
marker, Jones received the highest paid hourly rate of pay in
the cutting room, at the time of his discharge his hourly wage
was $2. As a marker it was Jones' lob to prepare paper markers
for the cutting of shirt yardage into the various parts that
make up a shirt. It was Jones' responsibility as a marker to cut
his paper markers in such fashion as to utilize the maximum
amount of yardage reasonably possible with the least amount
of waste. In the language of the trade, a marker is expected to
get as "tight" a marker as possible in order that maximum
amount of shirts may be obtained from each yard of material.
A "loose" marker, as distinguished from a "tight" marker, can
cause the loss of many yards of material which in turn
increases the manufacturing costs on a run of shirts. Generally,
the more time a marker has to squeeze his markers, the
"tighter" he can make his markers. The record shows that
Adams because of his overall responsibility to keep the work
flowing in his department, would frequently approve markers
which Jones believed he could make tighter if given a little
more time to work on them.
Respondent at the trial and in brief openly acknowledged
that it had knowledge of Jones' union activities long prior to
his second termination. The record shows that Jones was the
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instigator of the union activity at Respondent's plant leading
to the representation election of June 26, 1967 at the plant
which the Union lost. It was Jones who took the original
initiative in contacting a union representative in the early fall
of 1966 for assistance in organizing Respondent's plant It was
Jones who arranged for the first union organizational meeting
at the home of Chester and Leona Borden on September 26,
1966, where all present including Jones signed union authori-
zation cards. As heretofore noted, the Company knew of this
meeting from almost the time it took place. It is undisputed
that on or about October 24, 1966, Supervisor Adams
approached Jones and unsuccessfully sought to get him to
drop his support of the Union. The record leaves no doubt that
Jones was one of the chief employee organizers at the plant
and it is inferred from the record as a whole that Respondent
recognized him as such
In the 6-month period between Jones' first termination in
October of 1966 and his reinstatement under the Settlement
Agreement in April of 1967, Curtis Wilkins, Jr , took Jones'
place as marker at the plant. When Jones was reinstated,
Wilkins worked with him for a few days until Jones got his old
skill back as a marker.
In June or July of 1967 shortly after Hillman became
supervisor of the Cutting Department, he and Plant Manager
Mitchell received a visit from a customer, Bill Kapler. Kapler
complained that Respondent had been using more yardage
than necessary per dozen shirts on one of his orders and asked
to see a certain marker used in the manufacture of his shirts.
The marker had been prepared by Jones. Hillman with the help
of Kapler then proceeded to make a marker for the piece in
question which turned out to require some 4 to 5 inches of
material less than that required under Jones' marker. Hillman
called this to the attention of Jones.
Sometime in August of 1967, Respondent's co-owner,
Milton Glaser, asked Jones to see three of his markers and
criticized one of them on the ground that it would "not fit"
into the pattern of the shirt for which it was made. Glaser
dropped the criticism when it developed that Plant Manager
Mitchell had instructed Jones to prepare the marker in
question as it was prepared.
A month or so later Jones was layed off for 2 days because
of lack of work. The layoff was on Thursday and Friday,
September 7 and 8, 1967. Upon his return to work on the
following Monday, September 11, Hillman told Jones that his
job as marker had been reassigned to Curtis Wilkins, Jr., who as
above noted had functioned as marker for the 5 months period
Jones was not in the employment of Respondent after his first
discharge. At the same time Hillman told Jones that he was
being reassigned to the job of spreader or bundler, whichever
he chose, at the same $2 hourly wage he had been receiving as
a marker. Jones, completely surprised by this turn of events,
asked for an explanation. Hillman told him that in his 2-day
absence Wilkins had been called upon to remake one of Jones'
misplaced markers and that the Wilkins marker was later found
to be 2 inches tighter or shorter than his own. Because of this,
Hillman told Jones the decision had been made to give Wilkins
the job of marker and to make Jones either a spreader or head
bundler. Incredulous over the assertion that Wilkins had
produced a tighter marker, Jones asked to see the Wilkins
marker. Despite Hillman's agreement to this, Jones was never
shown the Wilkins marker.
The facts set forth in the above paragraph are undisputed.
Additionally, it is noted that although the testimony of
Hillman and Jones is conflicting as to whether Jones agreed to
accept the bundler job or any other job in lieu of his marker
job, Hillman's own testimony shows that Jones at least initially
agreed to a transfer to the job of bundler. The testimony of
Hillman and Faeber and that of Jones, however, differ
radically as to the events immediately surrounding and leading
into Jones' termination by Faeber.
Hillman testified that later that same Monday morning in
which Jones was relieved of his marker job, Jones asked for a
meeting with Faeber. At this meeting Jones asked Faeber in
Hillman's presence why his job as marker had been taken away
from him. Upon receiving the same explanation Hillman had
given him, Jones demanded to see the Wilkins marker for
comparison with his own. Faeber declined. After some further
discussion, Jones went out for his lunch break. During the
lunch hour, Hillman received word that Jones had been seen at
the union hall. Hillman testified that after Jones returned to
the plant that noon, he again made demands on Faeber to see
Wilkins' marker and that he told Faeber that he would not
accept a transfer to the bundler job unless Faeber showed him
by a comparison of the two markers that his marker was not as
good as the Wilkins marker Faeber, again declining to show
him the two markers, told Jones that he would have to take his
word that Wilkins' marker was the better of the two. Hillman
testified that Jones' reply to this was, "Then I will see you in
court," and that Faeber thereupon discharged Jones with the
words, "Well, Garland, if that is the way it has got to be, then I
will have to let you go."
Faeber's version of his termination of Jones is somewhat
different. Faeber testified that he fired Jones because Jones
told him he would not accept a reassignment of jobs to that of
bundler and said he would see Faeber in court.
Jones' version of his termination by Faeber is as follows. He
testified that after waiting and working 2 days as a bundler
without being shown the Wilkins marker as promised by
Hillman, he asked "to see some one in the main office."
Brought in by Hillman to see Faeber, he asked to see the two
markers, his own and Wilkins'. Faeber declined, telling him he
didn't have to show them to him He further testified that
Faeber told him that he could not have his marker job back to
which he had responded with the rejoinder, "I would not bet
on that." Faeber reiterated that he would not show Jones the
markers but if necessary he would show them to the National
Labor Relations Board. Faeber ended the conference by
ordering Jones back to work. Some 30 minutes later, Faeber
showed up at Jones' bundling station and summoned him into
his office. There Faeber, exhibiting the two markers, wagered
Jones that, "If Junior's [Wilkins'] mark is shortest, you take a
fire [termination] ," but "If yours is shorter, you can get your
marking job back." Jones asked for time to think the
proposition over during the noon break. During the lunch hour
Jones received advice from a union agent to file unfair labor
practice charges against Respondent and thereby force the
Company to produce the two markers. After the lunch hour,
Faeber looked up Jones at his work station and asked him if he
had decided to accept his proposal. Jones answered that if
Faeber still refused to let him see the two markers, he "would
just wait and see them" in a courtroom. Shaking his finger at
Jones' face, Faeber told Jones that his proposition still stood
and went back to his office. Some 3 minutes later Faeber
reappeared at Jones' bundling station to call him into his
office. There he angrily told Jones, "You are fired as of right
now." Jones further testified that he did not refuse to take a
MOULTON SHIRT CORP. 895
job reassignment after his marker job was taken away from
him
The Exammner credits Jones' testimony that he did not
refuse reassignment after being relieved of his marker job and
that he was fired only after he had stated to Faeber that he
would seek Board processes to get his marker job back The
record shows, contrary to Hillman's testimony, that Jones was
not fired on the same Monday on which he was relieved of his
marker job but on the following Wednesday, September 13,
196714 The record also shows that on the Monday and
Tuesday prior to his Wednesday termination Jones was
engaged for the most part m working as a bundler The fact
that Jones actually worked for 2 days on a job other than
marking corroborates Jones' testimony that he did not refuse
reassignment, although the evidence is clear that he was not
happy about having his marker job taken away from him and
desired its return. It is accordingly found that Respondent's
contention that Jones was fired because of his refusal to take a
job reassignment is without foundation in fact.
The Examiner also credits all other aspects of Jones' version
of his termination by Faeber, including his testimony that on
the day of his termination Faeber made him the wager that he
(Jones) accept a "fire" (discharge) if Faeber could prove to
him that the Wilkins marker was tighter than his, or a
reassignment to his marker job if Faeber could not prove that
It is significant that Faeber did not deny making such a
proposal to Jones.
While the immediate (but discredited) reason given for
Jones' discharge was that he refused to accept reassignment
after he had been relieved of his job as marker, Respondent's
principal assigned reason for Jones' termination is that his
markers were substandard in the sense that they did not yield
as many cuts out of a yard of shirt material as reasonably
possible. Jones' undisputed testimony shows, however, that in
the 22 months he worked as a marker under the supervision of
Adams he received no criticism from Adams on the quality of
his markers It will be recalled that Adams was Jones'
supervisor for the year and a half that Jones worked as a
marker pnor to his first termination and for some 3 months
after Jones' reinstatement in April of 1967 before Adams was
replaced by Hillman. This period comprised employment
under both the pnor owner and Respondent. At the time of
the trial, Adams was again in the employment of Respondent
in his old capacity as supervisor of its Cutting Department, and
testified in this proceeding. It is significant that although
Adams testified on behalf of Respondent concerning Jones, his
testimony reveals no criticism of Jones' work as a marker
during his long experience with Jones' work. Adams' testi-
mony, on the contrary, shows that at the time of Jones' first
termination in October 1966, he offered to give Jones a
recommendation to assist him in getting employment else-
where.
Hillman served as a supervisor for only about 6 to 8 weeks
when Jones was terminated by Faeber on September 13, 1967,
the termination here in issue Hillman testified that Jones'
markers were unsatisfactory because they lacked tightness.
Hillman's testimony, however, under cross-examination, shows
14 The pleadings establish that Jones was discharged on September
13, 1967, which falls on a Wednesday The testimony of Hillman and
Jones leaves no doubt that Jones was taken off his job as marker on the
preceding Monday.
that Hillman based this judgment exclusively on only two
alleged specific experiences One was the Kapler incident
related above where Hillman with the assistance of customer
Kapler was able to shorten one of Jones' markers by 4 or 5
inches. The other was the alleged claim that Wilkins had
produced a marker some 2 inches tighter than the marker
made by Jones for the same cut Although all witnesses agree
that Jones had demanded proof of the superiority of the
Wilkins' marker over his, Respondent did not see fit at the trial
to proffer the two markers into evidence for comparison.
Similarly Respondent did not proffer into evidence the marker
prepared by Jones for customer Kapler and the substituted
marker prepared by Hillman with the assistance of Kapler for
comparison. The record shows that Respondent's cutting room
supervisors in the effort of management to keep the flow of
work going not infrequently approved markers which could
have been made tighter if more time had been available to
work on them. The record shows that this would be true
regardless of who the marker might be.
Testimony was also offered by Respondent to show that
further reasons for Jones' second termination on September
13, 1967 was his refusal to work overtime. The record is clear
that Jones, after quitting his 3-month interim business venture
as a plumbing contractor, came back into the employment of
Respondent on about October 1, 1965 under an express
agreement that he would not have to work overtime unless he
consented to in order that he could be free to engage in
plumbing work after regular work hours at the plant. Adams
admits to this condition of Jones' employment Notwith-
standing this condition, the record shows that Jones willingly
worked overtime numerous times after his rehiring There is
evidence of only two or three instances where he refused
overtime, one of these being on Labor Day of 1966 because
the Company would not pay him overtime for holiday work.
After this incident there was apparently a new agreement
between Jones and Adams that he would be required to work
overtime whenever called upon. However, such evidence as was
presented on the limited occasions that Jones refused to work
overtime, reveals that these refusals by Jones to work overtime
occurred prior to his first termination on October 2, 1966, and
accordingly are not pertinent to the period of his reinstate-
ment beginning with April 17, 1967, and ending with the date
of his second termination on September 13, 1967 Any
legitimate cause for terminating Jones for a second time would
obviously and necessarily have to originate within the period
of his reinstatement as it started a new period of employment.
There is virtually no evidence of refusal by Jones to work
overtime after he was reinstated It is significant that Hillman
who had been Jones' supervisor for 6 to 8 weeks before his
termination did not attribute Jones' second termination in any
part to refusal to work overtime or to absenteeism. Similarly
the testimony of Faeber who discharged Jones fails to disclose
that refusal to work overtime played any part in his decision to
discharge Jones.
Finally the record shows that both Faeber and Hillman, at
the time they took the marker job away from Jones and gave it
to Wilkins, realized that Wilkins was far from being a fully
qualified marker and that he would need help from Hillman
for an indeterminative period of time before he could perform
the job with minimum supervision.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Summary and Conclusions
With the credibility issues resolved as shown above, the
record compels the conclusion that Respondent unlawfully
discharged Jones on September 13, 1967, in violation of both
Section 8(a)(3) and Section 8(a)(4) of the Act. With reference
to the Section 8(a)(4) violation, any review of the evidence
leaves no doubt that Plant Manager Faeber's decision to
discharge Jones was triggered in part by Jones' assertion that
he would seek Board processes for the restoration of his job as
marker. Respondent does not appear to argue to the contrary
in its brief. The Examiner is not here concerned with the legal
issue of whether Board processes may be used for the
restoration of a particular job assignment. It is sufficient to
note that any interference by an employer with an employee's
right to seek access to the Board constitutes a violation of
Section 8(a)(4), regardless of the merits of the employee's
claim for redress. N.L.R.B v Marine & Shipbuilding Workers,
391 U.S. 418, Hoover Design Corporation, 167 NLRB No. 62.
More basically, however, Respondent's motive in dis-
charging Jones was discriminatory in nature in violation of
Section 8(a)(3) of the Act. Summarized, the findings above
show that the reasons given by Respondent's Plant Manager
Faeber and Supervisor Hillman for terminating Jones are
patently pretextual One is that Jones refused to take other
assignments in the cutting room when he was taken off his job
as marker, but the record is clear that Jones not only accepted
reassignment but was actually working as a bundler and had
been engaged in such work for the better part of 2 days at the
very moment he was discharged. In any event the Examiner
credits Jones' denial that he never refused reassignment from
his marker job to other jobs in the Cutting Department,
although as seen he was not happy about being taken off the
marker job Another reason given by Faeber and Hillman for
Jones' termination is that his markers were substandard. It is
plain that Faeber who had become plant manager of the 220
employee Moulton Plant only 5 days before he fired Jones was
hardly in the position to judge the quality of Jones' work. This
is also true about Hillman whose testimony shows he did not
follow very closely Jones' work in the few weeks he had been
at the plant as its recently appointed Cutting Department
Supervisor. Moreover, the record shows that Faeber and
Hillman based their judgment that Jones' work was substand-
ard, not on any day-by-day surveillance of Jones' markers, but
primarily on the single marker made by Jones about a week
before his discharge which they claimed in their testimony to
be substantially inferior in tightness to a marker made a few
days later for identical purposes by employee Wilkins. Al-
though Respondent knew that the credibility of their assigned
reasons for discharging Jones would be in issue in this
proceeding, the Company did not see fit to offer in evidence
the two markers for comparative purposes 'although Faeber
and Hillman knew from the moment they took Jones' lob as
marker away from him that he was challenging their claim that
Wilkins had produced a superior marker and thereby the
truthfulness of their stated reason for taking him off the
marker job. It is evident that Jones' work as a marker must
have been reasonably satisfactory as he was employed both by
Respondent's predecessor and by Respondent for a total of
about 2 years as a marker. Clearly, if his work had been
seriously unsatisfactory he would have been fired long before
the termination here under consideration. It is significant that
Adams under whose supervision Jones had worked in 22 of the
24 months he worked at the Moulton plant as a marker, did
not in his testimony level any criticisms on the quality of
Jones' markers.
The final reason given by Respondent for Jones' discharge is
his refusal to work overtime when called upon for such
services. Such little evidence as Respondent produced in
support of this ground for Jones' termination is immaterial as
it relates to the period of his employment prior to his
reinstatement. When an employer reinstates an employee, the
employee starts with a clean slate and discharges after the
reinstatement must obviously relate to derelictions of duty
within the reinstatement period of employment.
In the opinion of the Examiner, Faeber and Hillman
relieved Jones of his job as marker and reassigned him to other
work in order to goad him into quitting his employment with
Respondent. The evidence is all too clear that Respondent's
motivation in discharging Jones when he did not quit on his
own account was to rid the plant of a known, articulate, and
active union protagonist. Jones was one of three known union
adherents Faeber fired within the first 2 weeks of his service as
Plant Manager at the Moulton plant.
e. Wendell Naylor
Wendell Naylor (whose given name is incorrectly shown as
Windell in the consolidated complaint) was in the employment
of Respondent for a period of about 5 months when he was
terminated on August 23, 1967. The consolidated complaint
alleges that his termination was discriminatory in violation of
Section 8(a)(3) of the Act At the time of the trial herein,
Naylor was in military service and testified in military uniform.
Naylor was employed in Respondent's Cutting Department
and worked alternately as a spreader or bundler as needed. He
worked under the immediate supervision of Adams from the
start of his employment with Respondent on March 4 until
about July 1, 1967 when Adams was terminated and thereafter
under Hillman, Adams' successor. During Naylor's 5-month
tenure with Respondent, the plant was under the management
of Mitchell.
Naylor was actively engaged in union activities from
sometime in May until the election of June 26, 1967, which as
seen was lost by the Union. During this period he was a
member of the union committee, wore a union button on his
person, and passed out union literature in or adjacent to the
plant in nonworking hours. His testimony establishes that his
union activities were known to Respondent and Respondent
does not appear to contest knowledge thereof.
Plant Manager Mitchell discharged Naylor on August 23,
1967, for the stated reason that he had spread certain shirt
material upside down, thereby causing some 15 dozen or more
shirts to become seconds. The improper spreading had been
performed a month prior thereto, but had just come to the
attention of Mitchell on the day he fired Naylor.
Naylor admits that he had spread the material in question
upside down but states in exoneration that he did this on
express instructions from Supervisor Hillman. He gave the
following account of the incident On the day he was spreading
the material he was working with the assistance of another
employee, Junior Randoulph. The material they were spread-
mg was a solid color but had an impressed floral design. As
they were spreading the shirting preparatory to its cutting, he
and Randoulph noticed that the bolt was not of uniform shade
but had varying shades and that portions of the yardage
MOULTON SHIRT CORP. 897
appeared to be wrong side up on the bolt Due to this
situation, they sought out Hillman for assistance and instruc-
tions Naylor testified that Hillman helped them separate the
various shades and instructed them to spread the inside of the
bolt. The record shows that the spreading of the bolt in
question from the inside or face side down led to the
manufacture of the aforementioned 15 or more dozen defec-
tive shirts The defect is that the right and left sides of these
shirts do not match
Hillman in his testimony categorically denied that he had
instructed Naylor and his assistant to spread the material in
question face side down or that Naylor had even asked for help
in connection with the bolt.
The testimony of the witnesses as to what transpired at the
conference at which Naylor was terminated coincide substan-
tially. When the mistake in spreading was discovered about a
month after the event, Hillman brought Naylor into Mitchell's
office to see Mitchell. Confronted by Mitchell with the
mistake, Naylor's testimony shows that he told Mitchell,
"everybody makes mistakes " Mitchell replied that he could
not put up with such mistakes and discharged him. Hillman in
his version of the termination relates that when Mitchell asked
Naylor why he had spread the material face side down, Naylor
replied, "Well, I guess I just wasn't looking " These two
remarks, the one Naylor said he made, and the one Hillman
attributed to him, have substantially the same meaning and
reflect an acknowledgement by Jones that he had made a
mistake in spreading the material face side down Although
Naylor testified that the mistake was Hillman's and not his as
he was merely following Hillman's instructions, Naylor's
testimony does not show that he even so much as mentioned
this alibi to Mitchell at the time he was being terminated, as
might be expected if the alibi was true Mitchell in his
testimony on direct examination volunteered that normally
the spreaders would see him for instructions if they ran across
any problems, but that Naylor on the incident here under
consideration did not consult him or anyone else on the
spreading of the material that led to the manufacture of the
defective shirts. The testimony of Mitchell and Hillman show
that Naylor had made a number of prior costly mistakes.
Naylor admits that he had received warnings for prior
mistakes.
About a month after his discharge, Naylor ran into Hillman
on the street and asked if Respondent was doing any hiring
then. Hillman, replying that the Company was hiring, urged
him to see Mr. Faeber who had succeeded Mitchell as plant
manager. When he saw Faeber about getting his job back,
Faeber inquired if he had been a union adherent. Upon
receiving an affirmative answer, Faeber told Naylor that he
would not inquire further into the matter as Naylor probably
had personal reasons for his union adherence. Faeber then
asked Naylor to check with him the following night on
whether he could have his job back. Naylor never returned to
see Faeber.
Discussion and Conclusion
The record is persuasive that Respondent terminated Naylor
in good faith for a costly mistake he had made in his work and
not because of his union activities. The record is undisputed
that Naylor had received a number of warnings on similar
mistakes he had made in the past. Naylor's testimony that
Hillman had instructed him to spread the material here in
question wrong side up is not credited because if he had
received such instruction, it is all too obvious that he would
have offered this alibi to Mitchell when Mitchell confronted
him with the mistake and asked him why he had spread the
material the way he had, but Naylor by his own admission did
not make any such excuse to Mitchell but on the contrary
readily admitted that he had made the mistake and sought to
have it excused on the ground that "everybody makes
mistakes " But even aside from this factor, the demeanor of
Mitchell and Hillman and a careful analysis of their testimony
carries the conviction that the only reason for Naylor's
discharge was the expensive mistake he had made and the fact
that he had made similar prior mistakes for which he had been
given warnings. The fact that Hillman a month after Naylor's
discharge had urged him to seek reemployment with the
Company by application to the then new Plant Manager
Faeber and the fact that Faeber had indicated to Naylor that
he would give consideration to his application notwithstanding
Naylor's admission that he had been a union adherent, gives
further credence to the testimony of Hillman and Mitchell that
Naylor's discharge was due solely to the mistake he made and
prior similar mistakes.
Although Respondent's antiunion conduct as reflected in
the above-found violations of Section 8(a) (1), (3), and (4) of
the Act carries the strong suggestion that Respondent's
discharge of Naylor, a well-known union activist, was discrimi-
natorily motivated, the Examiner is of the opinion that
Respondent's said antiumon conduct is not sufficient to
overcome the specific credited evidence that Naylor was
discharged for cause unrelated to his union activities.' 5
It is accordingly found that Respondent's discharge of
Naylor was not in violation of Section 8(a)(3) of the Act and it
will be recommended that the portion of the consolidated
complaint alleging such a violation be dismissed.
f. Jake Blaxton
The consolidated complaint alleges that Respondent dis-
charged Jake Blaxton, another employee, because of his union
activities in violation of Section 8(a)(3), and also in violation
of Section 8(a)(4) of the Act for giving an affidavit to the
Board in the heretofore mentioned earlier unfair labor practice
case involving Respondent.
Blaxton has had two periods of employment with Respon-
dent. The first was from October 1966 to about July 17,
196716 when he voluntarily quit to take a better paying job
elsewhere In this first period he worked as a cutter. In the last
month or so of this early period of employment, he worked
under the supervision of Hillman who had succeeded Adams as
supervisor of the Cutting Department. In an earlier section of
this Decision under the heading "Threats of Discharges,"
findings were made of Section 8(a)(1) violations by Respon-
dent through the conduct of Hillman. This occurred in a
conversation Hillman had with Blaxton on the day (July 17)
15 Evidence was also presented by Respondent that Naylor had
received warnings about unauthorized absences before the incident that
caused his discharge As it does not appear from the testimony of
Hillman and Mitchell that such unauthorized absences (which appear to
have been minimal ) played any part in Naylor's discharge , no findings
are made on such unexcused absences other than that contained in this
footnote
16 These dates are reflected in Resp Exh. 3
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blaxton had told him he was quitting his job with Respondent
and asked for his paycheck. In that conversation, Hillman in
apparent confidence told Blaxton that he had been hired as a
supervisor "to get rid of some of the boys that was for the
Union and against the Company" whom he identified by name
during the course of the conversation. It is inferred from the
fact that Hillman made these remarks to Blaxton that he
regarded him at that time as an employee with little or no
interest or sympathy for union objectives Blaxton's testimony
adds support to this inference as it shows that he did not sign a
union authorization card until only a few days prior to the
then recent representational election of June 26, 1967,
although the record shows that an intensive campaign had
been going on to organize the employees in the plant for many
months before the election was held. But as will appear below,
Blaxton in his second period of employment with Respondent
took a far more active role in behalf of the Union than he had
in the past.
Blaxton's second period of employment with Respondent
began about September 15, 1967, or a little over 60 days after
he had quit his first employment with the Company. He was
hired by Faeber who had become plant manager only a week
or so earlier. Faeber assigned Blaxton back to his old job as a
puller, but in accordance with his original plan transferred him
to the Maintenance Department 2 weeks later. John Adcox
and Rayburn Moses also worked in the Maintenance Depart-
ment. All worked under the supervision of Paul Bolan, head
maintenance man. On January 11, 1968, or some 4 months
after he had hired him, Faeber fired Blaxton. It is this
termination which is challenged by the consolidated complaint
as being in violation of Section 8(a)(3) and (4) of the Act.
General Counsel relies on the following series of events after
Blaxton was rehired to substantiate the charge that his
termination on January 11, 1968, was discriminatory. On or
about December 4, 1967, Blaxton while at work was told that
there was a telephone call for him at the office His supervisor,
Paul Bolan, was with him when he was told about the call and
stood at the door way of the office waiting for Bolan while
Bolan answered the telephone call. The call was from Garland
Jones, the Company's former marker whose status as an
alleged discrlminatee was the subject of a prior section of this
Decision. Jones asked Blaxton if he would give the Board a
statement in his behalf in connection with his termination of
the preceding September. Blaxton consented but as he was not
certain when he could get away from work for this purpose, it
was arranged for Jones to call back later A day or two later,
on December 7, Bolan received a telephone call at the plant for
Blaxton and hollered for him to come and take the call. When
Blaxton got there, Bolan handed the phone over to him and
stood within 4 feet of the telephone while Blaxton spoke into
the receiver. The call was from Jones again who wanted to
know if a definite time could now be arranged for Blaxton to
give a Board representative the statement he had previously
called about. Blaxton's testimony creditably shows that
Supervisor Bolan overheard his (Blaxton's) conversation with
Jones and received the full import thereof. In that conver-
sation, Blaxton agreed to drive over to nearby Decatur the
next day at noon with a named union business agent to
17 These interrogations of Blaxton by Faeber are based on the
credited testimony of Blaxton as set forth in an earlier section of this
Decision where it was found that the interrogations constituted
violations of Section 8(a) (1) of the Act
prepare and give his signed statement in behalf of Jones to a
Board representative After the call, as Blaxton and Bolan
walked away together to the Pressing Department, Blaxton
told Bolan, "I will go sign a statement. I don't know whether it
will help Garland [Jones] or not, but maybe it will help
Chester [Borden, another dischargee] because I was not up
here when Garland got fired." The findings of this paragraph
are based on the credited and undenied testimony of Blaxton.
Bolan did not testify. Some 2 weeks later, on December 19,
Faeber asked Blaxton what he had heard about the Union.
Blaxton replied, "Nothing." Later, on January 5, 1968, Faeber
at his office while Blaxton was there doing some repair work,
again asked him if he had heard anything about the Union
Blaxton again replied in the negative' 7 From the incidents
described in this paragraph, it is found that it became known
to Respondent from and after the first week in December
1967 that Blaxton was an active union sympathizer and
adherent,' 8 although he was not so regarded just prior to the
time he quit his job with Respondent on July 17, 1967, to
take employment elsewhere. Respondent in its brief acknowl-
edges that Blaxton was "a known active union adherent "
General Counsel contends that Blaxton's union activities in
behalf of the alleged discriminatees in the prior unfair labor
practice case caused his termination by Respondent in viola-
tion of Section 8(a) (3) and (4).
Respondent, on the other hand, contends that Blaxton was
terminated for cause. The record shows that Blaxton's work
performance as a maintenance worker in the first 9 or 10
weeks he worked in that capacity was outstanding. Faeber
acknowledges that he complimented Blaxton many times on
his work in that period. Faeber, however, testified that starting
about the first week in December 1967, Blaxton's work began
to deteriorate and that he spoke to Blaxton about this "a
couple of times " The record shows that the second reprimand
took place towards the end of February in Faeber's office
where Faeber again expressed dissatisfaction to Blaxton with
his work and told him he "was not the same employee as I
lured." Blaxton took the criticism in silence, but told Faeber
he would try to improve his performance Blaxton credibly
testified that he did improve his performance, there was no
denial of this by Faeber.
Faeber also testified that he had received a complaint from
one of the employees in the Cutting Department about
Blaxton's "goofing off" in that department. When asked what
the term "goofing off' meant, Faeber said it meant that
Blaxton "was just talking to a lot of men, just not working
And the other boys took a personal resentment . They felt it
was not fair...." Faeber identified Garlon Tyler as the
employee who made the complaint about Blaxton; Tyler is
also named in the consolidated complaint herein as an alleged
discriminatee, with date of discharge some 20 days after
Blaxton's discharge.' 9 Blaxton in his testimony denied any
knowledge of a complaint by Garlon Tyler that he had been
"goofing off" and also denied receiving any complaints from
Faeber about his "goofing off." Garlon Tyler also denied that
he had made any complaints to Faeber about Blaxton's
"goofing off," but his testimony shows that he did make such
complaints to Cutting Room Supervisor Adams. On the basis
18 Plant Manager Faeber's denials of knowledge of the incidents
described in the above paragraph are not credited.
19 The case of Garlon Tyler as an alleged discriminatee will be dealt
with in the next section of this Decision.
MOULTON SHIRT CORP 899
of the entire record, it is found that Blaxton did interfere
somewhat with the work performance of other employees in
the Cutting Department by engaging them in conversation (i.e.
"goofing off"); that Garlon Tyler had made complaint about
this to Adams, and that Adams in turn had told Faeber about
it.
On January 10, 1968, Blaxton was at home due to illness.
That noon Faeber sent him a termination slip advising him that
he was being laid off as of January 11 due to lack of work in
his department. When he recovered from his illness a day or
two later, Blaxton called on Faeber and reminded him of the
understanding they had when he was hired that he would be
sent back to the Cutting Department if work slackened in the
Maintenance Department. Faeber replied that if he put him to
work in the Cutting Department, he would have to lay off
someone else in that department. Blaxton said he didn't want
that to happen and gathered up his tools. As he was leaving the
plant, Faeber said to him, "I would like to feel free to call on
you at any time [for services] ." Blaxton asked turn to do so.
Faeber's testimony shows that although he had worded
Blaxton's termination notice in the form of a layoff, he had
intended it to be an absolute termination as he had no
intention of rehiring Blaxton. He testified that he terminated
Blaxton for a combination of reasons which may be best stated
in his own words as follows: "Work was getting slack around
the first of the year, plus his performance not being satisfac-
tory before, generally goofing off "
The record shows that Respondent's need for maintenance
workers is roughly reflected in the amount of overtime they
are required to put in. Blaxton's testimony establishes that
there was no slackening in the overtime he was putting in at
the time he was discharged. At the time Blaxton was
discharged, Respondent retained another maintenance worker,
Rayburn Moses, a much younger man, who had less seniority
than Blaxton.
Discussion and Conclusions
The Examiner finds and concludes that Respondent's
discharge of Blaxton is in violation of Section 8(a)(3) and (4)
of the Act. The circumstances surrounding the discharge
compel this conclusion. The discharge was by Plant Manager
Faeber who has boasted that he would bring the Union to its
knees. The discharge notice, served on Blaxton personally on a
day he was home sick, was precipitous and without any prior
warning. The notice was itself fraudulent because it stated that
Blaxton was merely being laid off for lack of work whereas
Faeber himself testified that he intended the termination to be
final and unalterable. Faeber in effect admitted that he lied to
Blaxton a day or two after he had sent him the notice of his
discharge by telling him that the discharge was merely
temporary due to lack of work. There is serious doubt in the
record whether the work in the Maintenance Department
where Blaxton worked had slackened in view of Blaxton's
credited and undisputed testimony that his overtime work at
the time of his termination was as great as it had ever been.
Respondent was in the position to document its claim that the
work in the Maintenance Department had slacked when it
discharged Blaxton but did not do so.
Faeber's stated secondary reasons for terminating Blaxton
were that his work performance had deteriorated in the last
month or so of his employment and that he had had complaints
that Blaxton was "goofing off" by talking too much to other
employees in the plant and thereby preventing them from
devoting full attention to their work. Although the record
shows that Blaxton's work performance was not as good as
formerly and that he was doing some "goofing off," the
Examiner does not credit Faeber's testimony that these factors
played any significant part in Blaxton's termination. The
record shows that Blaxton's work performance improved after
Faeber had taken him to account about it in the latter part of
December. The record further shows that Blaxton was capable
of outstanding work and that during most of his second period
of tenure with Respondent he had given superior performance.
In the year preceding the trial of this matter Respondent had
suffered more than a 100 percent labor turnover. This makes it
doubly certain the Respondent would not fire an employee of
recognized skill because of a mere temporary slump in his
performance but would work along with him to bring it up to
standard.
The Examiner is of the opinion that the real reason for
Blaxton's discharge was the discovery that he was assisting the
Union in the prior unfair labor practice case before the Board
in which Respondent was involved at the time. The record is
undisputed that Bolan, Blaxton's immediate supervisor, be-
came aware in early December 1967 that Blaxton was giving
the Board an affidavit in that case in support of former
employee, Garland Jones, who was an alleged discriminatee in
the earlier unfair labor practice case .2 ° Although Faeber denies
that he had any information about this activity by Blaxton,
the Examiner does not credit Faeber's denial. The record as a
whole shows that Faeber used every resource available to him
to ferret out union activities on the part of any of the
employees in the plant. In the circumstances of this case the
knowledge of Supervisor Bolan of Blaxton's activity in
furnishing the Board an affidavit or affidavits in the prior
unfair labor practice case is imputed to Plant Manager Faeber
and through him to Respondent. Braswell Motor Freight Lines,
Inc., 156 NLRB 677 enfd. 386 F 2d 190 (C.A. 6); The Bama
Company, 145 NLRB 1141, 1152; Montgomery Ward &
Company, 115 NLRB 645, 647 enfd 242 F.2d 497 (C.A. 2);
cf Counsins Associates, Inc., 125 NLRB 73, 75. It is
significant that Faeber's criticism of Blaxton's work perfor-
mance commenced at about the time Blaxton made it known
to Bolan that he was going to give the Board an affidavit in
favor of former employee Jones. Up until this time Faeber had
had nothing but praise for Blaxton's work.
By reason of all these circumstances and the fact that
Faeber by his demeanor as a witness did not inspire con-
fidence, the Examiner does not credit Faeber's stated reasons
for his discharge of Blaxton and finds as aforestated that
Blaxton was terminated because of his union activities and
because he filed an affidavit or affidavits with the Board in a
then pending unfair labor practice case involving the Respon-
dent. The termination is thus in violation of both Section
8(a)(3) and Section 8(a)(4) of the Act.
g. Garlon Tyler
The final alleged discrinunatee under the consolidated
complaint is Garlon Tyler who was discharged on January 31,
1968. Respondent has raised two defenses to his discharge.
20 Jones is also an alleged discriminatee in the instant case See
earlier section of this Decision on Jones' status as a discnminatee
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first is that Tyler is a supervisor within the meaning of the
Act The second is that his discharge was in any event for
cause.
Tyler has worked for Respondent off and on since early
1963, quitting a number of times for personal reasons His last
continuous period of employment with Respondent com-
menced on about September 1, 1966, and ended with his
aforementioned discharge on January 31, 1968 During all of
this last period of employment he worked in the plant's
Cutting Department chiefly as a cutter.
In the indicated 16-month period preceding his discharge,
Tyler worked first under Adams, then under Hillman when he
succeeded Adams as supervisor of the Cutting Department, and
then again under Adams when Adams succeeded Hillman.
During most of this period he worked under Adams. There was
a hiatus period of 3 weeks between the time Hillman was
discharged by Respondent and the time Adams again took over
as supervisor of the cutting room. In this 3-week period Tyler
functioned as acting head of the cutting room and worked
under the direct supervision of Plant Manager Faeber
Tyler was discharged by Faeber. At the time of his
discharge Adams was again in charge of the Cutting Depart-
ment. Tyler's discharge had no connection with the quality of
his work. Faeber acknowledges that Tyler is a good worker.
Faeber's stated reason for discharging Tyler was his alleged
refusal to carry on with a duty previously performed by him
Findings on the circumstances surrounding the discharge will
be shown below.
Respondent in its brief acknowledges that Tyler was "a
known union active adherent " Tyler was one of the hereto-
fore mentioned group of employees who took part in the
Union's first organizational meeting at the home of Chester
and Leona Borden on September 26, 1966. The record
supports the conclusion that this fact became known to
Respondent shortly thereafter.
On December 11, 1967, as heretofore shown in an earlier
section of this Decision, Faeber, after observing Tyler coming
out of a nearby Union hall during the lunch hour, later said to
him at his work station, "What were you doing coming out of
that damn union hall?" and warned, "... you better not
mess us up here." In the course of the exchange, Tyler told
Faeber, "I have some damn good friends down there [the
union hall]." He also frankly told Faeber "I am as much for the
union as I ever was." Less than a month later, Faeber, on
January 3, 1968, expressed his open glee and elation to Tyler
over the Union's recent loss of a representation election by a
wide margin at a neighboring but unrelated garment plant. To
Tyler's replies that the Union had done a lot better in the
election at Respondent's plant, Faeber asserted that at the
next representation election Respondent would "cut the
Union down to its knees." (The related incidents were found
above to constitute a violation of Section 8(a)(1) of the Act.)
Prior to the above incidents, Hillman on October 2, 1967,
by the authority of Faeber made Tyler his assistant by
promoting him to the then newly created position of assistant
supervisor of the Cutting Department but at no increase in his
then hourly rate of pay 2 i In his new position Tyler was given
authority to assign work to employees under instructions from
Hillman and on his own initiative, but was not given authority
to hue or fire or recommend such action. Despite the new
assignment, Tyler spent about 75 percent of his time working
as a cutter and doing such other work as bundling, spreading
and running off photo-copies of markers, as needed When
Hillman was terminated on October 24, 1967, Tyler took over
Hillman's former functions as supervisor of the department for
the 3-week interim period before Adams was rehired to take
Hillman's place.
Although there is no dispute in the testimony of record that
Tyler became Hillman's assistant with title of Assistant
Supervisor of the Cutting Department for a period of some 3
weeks prior to the time Hillman was himself terminated, the
testimony is sharply conflicting as to whether Tyler was
demoted by Adams to his former position as cutter when
Adams was rehired as supervisor of the cutting room. Tyler
testified that Adams within 2 or 3 days after he got his old job
back as supervisor told him that the cutting room no longer
needed two supervisors and returned him to his former duties
as cutter. Tyler testified that Adams told him that he was
making this change on instruction of Faeber Adams admits
that after his return to his old job he had a conversation with
Tyler in which he "did tell him that he would have to go to
cutting," but asserts that he also told Tyler that "he would
also be assistant supervisor." The Examiner does not credit
Adams' testimony that he made the latter statement to Tyler
For the reasons heretofore stated, the Examiner found Adams
to be an untrustworthy witness; it was particularly noticeable
that he sought to give answers favorable to Respondent out of
obvious fear of losing his job again if he did otherwise. Faeber
denied that he had ever given orders to Adams "to notify
Garlon [Tyler] that he would cease to be known as a
supervisor." This denial is also not credited as throughout his
testimony Faeber impressed the Examiner as being an unre-
liable witness. On the basis of the entire record the Examiner
credits Tyler's testimony that Adams within 2 or 3 days after
he was rehired as supervisor of the Cutting Department told
him that he was being returned to his old cutter job and that
he would no longer be assistant supervisor of the department.
The record shows that after Tyler was returned to the
cutter job the only other function he performed (except to
lend a hand at bundling, spreading, etc., as needed) was to pass
on instructions he received from Adams for other employees in
the department. These instructions were not those made on his
own authority or upon his own judgment, but were exclusively
instructions originating with Adams for relaying by Tyler to
other employees. Faeber's ambivalent testimony shows that
even at the time when there was no question that Tyler had
the title of assistant supervisor, he did not actually function as
a supervisor within the meaning of the Act, except for the
21 At the time Tyler received his promotion, he was receiving $1.60
per hour , this was not changed by reason of the promotion. But
sometime thereafter he received two raises , one to $1.75 per hour, and
the other to $1.85 per hour Tyler 's testimony shows uncertainty as to
when he received the first pay raise , but as he fixed his last wage
increase ( to $1 85 ) as taking place sometime in November 1967, it is
inferred and found that he received his first raise shortly after he got his
promotion to assistant supervisor . It appears reasonable to assume that
Tyler received his last pay raise (to $1.85 ) during the 3-week interim
period in late October and in early November 1967 when he functioned
as acting supervisor of the Cutting Department Due however to the lack
of certainty in the record as to the precise dates of Tyler's first and
second pay raises, the Examiner finds that the pay raises are of no
significance as circumstantial evidence in resolving the issue of whether
Tyler's status as an assistant supervisor was taken away from him in
November 1967 after Adams once again became supervisor of the
Cutting Department
MOULTON SHIRT CORP 901
interim 3-week period when Tyler was acting head of the
Cutting Department
Outside of that 3-week period, Faeber described Tyler's
position as that of "more or less a so-called expeditor "
Further describing Tyler's work, Faeber stated, "At certain
times we told him to take care of certain details which he, in
turn, would assign as an expeditor. He would do it himself and
he would also expedite other people." Faeber in an affidavit
given to the Board stated, "Garlon [Tyler] could not hire, fire,
transfer, suspend, lay off, recall, promote, discharge, reward,
adjust grievances. Upon Garlon's recommendation of any of
the foregoing actions I would make an independent investi-
gation before acting." Whatever Tyler's authority was as
assistant supervisor before Adams was recalled as supervisor,
the record is clear that within 2 or 3 days after Adams again
became supervisor Tyler was required to spend practically all
of his time as an operator at the cutting machine and that the
only carryover he had from his former duties under the title of
assistant supervisor was to pass on work instructions given to
hum by Adams for other employees in the department. The
performance of this latter function did not require the use of
any independent judgment by Tyler.
On January 26, 1968, Faeber called Tyler into his office
where he criticized Tyler in the presence of Adams for
"spreading some wide goods." Tyler replied that Adams had
not instructed him to do otherwise. Faeber replied, "Well, you
should have known better," and went on to say that "there are
a lot of things I don't like going on " Tyler responded to this
by saying that he too didn't like a lot of things that were going
on but refused Faeber's repeated requests to specify what they
were. Adams then spoke up to say that he behved that Tyler
was referring to Blaxton's "goofing off," or interference with
the work of other employees in the department by talking too
much. A day or two later Tyler was again called into Faeber's
office. At this session, Faeber asked Tyler if he knew that
Blaxton had filed unfair labor practice charges against the
Company. When Tyler said, "No", Faeber again pressed the
question. This time Tyler responded, "Well, I don't care, Mr.
Faeber." Aroused, Faeber replied, "Oh, is that the way you
feel about it." Faeber then asked him if he remembered the
conversation they had had earlier when Tyler "brought up"
the subject of Blaxton's "goofing off." As Tyler denied bring-
ing up that subject, Adams spoke up and said that he (Adams)
was the one who had brought up the subject of Blaxton's
"goofing off " (Similar findings were made in the immediately
prior section of this Decision dealing with dischargee Jake
Blaxton). The findings above are based on the credited testi-
mony of Tyler
On January 29, a Monday, not long after the above-
reported conference or perhaps on the very day of the
conference,22 Adams, with expressions of regret, told Tyler at
the end of the workday that on instructions of Faeber he was
laying him off temporarily. Upon returning to work on
January 31, Tyler, at the first morning break period and in the
presence of another employee he had brought along as a
witness, sought out Adams and told him that, "I didn't want
to tell anyone else [other employees in the cutting room]
what to do." He also told Adams that, "If they [other
22 The record is not clear as to the precise date of the conference
Faeber had with Tyler in which he sought to find out from him if he
knew that Blaxton had filed an unfair labor practice charge against the
Company.
employees] came to me [for instructions of the kind described
above], I was sending them to him." Adams replied, "Okay, I
don't blame you." (The foregoing is based on the credited and
undisputed testimony of Tyler.) Some 30 minutes later Faeber
called Tyler into his office and demanded to know in the
presence of Adams if he had told Adams that, "you wasn't
going to tell anyone else [other employees] what to do out
there [in the cutting room]." Tyler denied that he had said
anything "like that" and asserted that he had only told Adams
that "I didn't want to tell anyone else what to do out there."
In other words, Tyler denied that he had refused to relay any
instructions Adams might leave with him for other employees,
but had merely stated the preference that he "didn't want" to
do that thereafter. Not satisfied with this answer, Faeber again
pressed the question and received the same answer. Further
questions by Faeber along the same line brought refusals by
Tyler to repeat what he had said. Following this there was a
heated discussion between Faeber and Tyler, initiated by
Tyler, as to whether at the previous conference Tyler had
brought up the name of Blaxton in connection with his
"goofing off," with Tyler maintaining that he had not at any
time during that conference mentioned Blaxton or participated
in any discussion about him, and with Faeber insisting, "Yes, I
know you did. Me and Charles Adams heard you." Tyler
replied, "No, sir, it is a he. I did not" Faeber ended the
conference by telling Tyler, "You are dismissed as of today."
The above description of Tyler's termination is based on
Tyler's testimony. Faeber's account of the termination is quite
similar, except that in Faeber's account the termination came
about because of Tyler's flat refusal to carry on his former
function of telling other employees what work to perform in
accordance with instructions received by Tyler from Adams.
As Tyler's own above-described testimony shows that he had
told Adams that he would not thereafter pass on Adams' work
instructions to other employees, but would refer them to
Adams, Tyler's testimony accords with Faeber's testimony
that Tyler at the conference stated that he would no longer
accept the responsibility of acting as a conduit for Adams'
instructions to other employees. Tyler's failure at the con-
ference, in accordance with his own account of the conference,
to give outright assurance to Faeber that he would continue to
perform in all respects as formerly, is additional proof that he
had told Faeber that he would no longer act as Adams'
expediter.
Discussion and Conclusions
The issue of whether Tyler had supervisory status at the
time of his termination on January 31, 1968, breaks itself
down under the record into two questions. The first of these is
whether Tyler was stripped of his title and duties as assistant
supervisor by Adams in November of 1967 shortly after
Adams was recalled to his former position as supervisor of the
Cutting Department. As shown above, Tyler testified that he
was demoted, and Adams and Faeber testified that he was not.
Resolution of this credibility issue was made above in favor of
Tyler's testimony and no further discussion on this is deemed
necessary at this point.
The record, however, presents the further and more
difficult question of whether Tyler, after he had lost his title
of assistant supervisor, did not in fact retain enough of his
former supervisory authority to be still subject to classification
as a "supervisor" within the definition of that term under the
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. Even as assistant supervisor, the only real authority Tyler
had as a supervisor under the statutory definition of that term
was the authority to "assign" work, as the record is clear that
he had none of the other statutory supervisory indicia, such as
the authority to hire, fire, transfer, suspend, lay off, recall,
promote, reward, or adjust grievances. Thus the question
presented is whether Tyler after the loss of his title as assistant
supervisor still retained the authority to assign work.
From the record as a whole, the Examiner finds and
concludes that Tyler did not retain the authority to assign
work. A number of facts of record support this conclusion.
Tyler's undisputed testimony shows that after Adams stripped
him of his title as assistant supervisor and returned him to his
former work as a cutter he spent practically all of his 8-hour
workday operating the cutting machine, this is not consistent
with Respondent's claim that Tyler also functioned as a
supervisor. Next, Tyler's credited testimony further shows that
such instructions as he gave to employees in the department
after he lost his supervisory title were merely instructions that
he had received from Adams for relaying to other employees
and accordingly did not involve the use of independent
judgment, but were merely routine or clerical in nature.
Finally, Plant Manager Faeber's own testimony makes it clear
that he regarded Tyler, not as a supervisor, but as an expediter.
The dictionary definition of an "expediter" is of one whose
function it is "to speed up the progress of whatever is at
hand. This lines up with Tyler's description of his work as it
related to other employees inasmuch as his testimony shows
that he expedited the work of his department by passing on to
other employees instructions he had received from Adams. In
this manner, Tyler helped to keep his department running
smoothly and expeditiously. This was undoubtedly a valuable
and desired function from Respondent's point of view, but
under the facts of record Tyler's work as an expediter does not
fall within the statutory definition of a supervisor The
Examiner finds and concludes from the entire record that
Tyler was not a supervisor within the meaning of Section 2(11)
of the Act at the time he was discharged on January 31, 1968,
by Plant Manager Faeber
It follows that Tyler at the time of his termination was an
"employee" within the meaning and protection of the Act. As
it was found above that Tyler at his termination conference
refused to continue to carry on his former duties as an
expediter in addition to his regular duties as a cutter, the
remaining question is whether he was fired by Plant Manager
Faeber for this refusal as contended by Respondent, or
because of his union activities as contended by General
Counsel.
The Examiner is of the opinion that Faeber seized upon
Tyler's refusal to do any more expediting as a welcome pretext
to nd the plant of an acknowledged "known active union
adherent " Less than 2 months pnor to the termination,
Faeber had warned Tyler when he saw hum coming out of
"that damn union hall" that he "better not mess us up here."
Tyler on that occasion had replied that he had "some damn
good friends" at the union hall and asserted that he was "as
much for the Union as I ever was." Later, less than a month
pnor to Tyler's termination, Faeber taunted Tyler with the
remark that Respondent would "cut the Union down to its
knees" at the next representation election at the plant. On
January 26, just a few days before the discharge, Faeber tried
to pick a quarrel with Tyler over some work he had done, but
had to back out because the work had been authorized by
Supervisor Adams. Faeber nevertheless in obvious pique sent
instructions to Adams at the end of the day to lay Tyler off. It
also appears that Tyler's announcement upon his return to
work on January 31 that he would no longer pass on Adams'
instructions to other employees stemmed from the resentment
he felt over Faeber's unjust criticism of his work and layoff on
the Friday preceding. In the Examiner's opinion this gave
Faeber the opportunity he was looking for to fire Tyler for
so-called cause. A pretext for Tyler's discharge was not easy to
find as his work was admittedly good. Tyler, as shown in an
earlier section of this Decision, was one of a number of
Respondent's employees whom former Supervisor Hillman
months ago said had been marked for termination because of
their union sympathies.
Accordingly it is found that Respondent's stated reason for
discharging Tyler is pretextual and that his discharge was
actually motivated by Respondent's desire to sever from its
employment a known and active union adherent and advocate.
The discharge is therefor found to be in violation of Section
8(a)(3) of the Act.
h. Other Defenses
Respondent has made some general arguments in its brief to
support its contention that the discharges herein were for
cause unrelated to union activity. One of these arguments is
that the work performances of 5 of the 7 dischargees2 3 out of
the 220 employees at the plant were so ruiniously inefficient
as to have caused many of its customers to withdraw their
business, with resulting heavy losses to the Company. The
record does not bear out the claim that Respondent lost any
business during the period the dischargees in question were in
the employment of Respondent. The five involved dischargees
were discharged between August 14, and September 22, 1967,
the remaining two were discharged in 1968 and it is claimed
that only one of these (Jake Blaxton) was discharged for lack
of work. The testimony of President Glaser shows that
Respondent's fiscal year ends on September 30 and that for
the year ending September 30, 1967, Respondent broke even.
This is something of an accomplishment as the two owners of
Respondent, Jack and Milton Glaser, took the plant over only
some 18 months prior thereto and it must be assumed that
they knew what they were getting into as they were both men
with long and successful experience in the garment manu-
facturing business. Respondent offered no documentary evi-
dence to substantiate its claim that it lost customers in the
fiscal year ending September 30, 1967, as it contends. The
testimony of Cutting Department Supervisor Hillman, on the
contrary, shows that as late as October 24, 1967, the day he
was discharged, the Company was not experiencing any decline
in the amount of business it was getting. Accordingly, the fact
that Respondent's business seriously declined sometime after
October 24, 1967 cannot have any possible relationship to the
five employees who were discharged prior to September 23,
1967, particularly in view of the fact, as found above, that
four of the five dischargees whose terminations were found
23 One of the seven dischargees, Blaxton , was not a production
worker, he was a maintenance employee. Another of the seven
dischargees , Garlon Tyler, was by Faeber's own testimony a good
worker.
MOULTON SHIRT CORP. 903
discriminatory, were good workers. There is an intimation in
Respondent's brief that Respondent's loss of business after
October 24, 1967 may have been due to sudden and
unexpected competition from the Orient. But whatever the
reason for such loss of business after October 24, 1967, it is
not pertinent to the discharges here involved which took place
prior to September 23, 1967, none of which were designated
layoffs as might have been the case if there had been a decline
in business.
Another argument advanced by Respondent that the
discharges were for cause, and not because of company
hostility to the dischargees' union activities, is that the
Respondent cannot be charged with union animus because the
record shows that they hired and rehired employees with
known union sympathies, including a number of the discrimi-
natees here involved. This argument is without merit because
the record shows that with more than 100 percent labor
turnover, the Respondent was desperate for help and had little
or no choice in hiring such people, if it wanted to keep its
plant going.
Other general arguments advanced by Respondent to show
that the discharges herein involved were for cause have been
considered and likewise found to be without merit.
V THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with the operation of Respon-
dent described in section I above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
VI THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1), (3), and
(4) of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminately discharged
Scottie Bishop, Chester Borden, Leona Borden, Garland R.
Jones, Jake Blaxton, and Garlon Tyler, it will be recommended
that Respondent offer to all of said discruninatees immediate
and full reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges and to make whole all of said discrimu-
natees for any loss of earnings they may have suffered by
reason of the discrimination against them, by payment to each
of a sum of money equal to the amount each would have
earned from the date of the discrimination against him until
such discrimination has been fully eradicated, less the net
earnings of each during the discriminatory period. Backpay
with interest at the rate of 6 percent per annum, shall be
computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, 291-294, and Isis Plumbing &
Heating Co., 138 NLRB 716.
In view of the nature of the Respondent's unlawful conduct
and its underlying purpose and tendency, the Examiner finds
that the unfair labor practices found are persuasively related to
the other unfair labor practices proscribed and that danger of
their commission in the future is to be anticipated from the
course of Respondent's conduct in the past. Therefore, in
order to make effective the interdependent guarantees of
Section 7 of the Act, it will be further recommended that
Respondent cease and desist from infringing in any manner
upon the rights guaranteed in said section. N.L.R.B. v. Express
Publishing Company, 312 U.S. 426,NL.R.B. v. Entwistle Mfg
Co., 120 F 2d 532 (C.A 4).
Upon the basis of the foregoing findings of fact and upon
the record as a whole, the undersigned makes the following.
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act, Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
2. By discriminating in regard to the hire and tenure of
employment of employees Scottie Bishop, Chester Borden,
Leona Borden, Garland R. Jones, Jake Blaxton, and Garlon
Tyler, thereby discouraging membership in the above Union,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the
Act.
3. By terminating the employment of the above-named
employee, Garland R. Jones, because said employee joined and
assisted the Union in concerted activities for the purpose of
collective bargaining and because he stated that he would file
unfair labor practice charges in a then pending case before the
Board involving the Respondent, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(4)
and (1) of the Act.
4. By terminating the employment of the above-named
employee, Jake Blaxton, because said employee joined and
assisted the Union in concerted activities for the purpose of
collective bargaining and because he gave an affidavit in a then
pending unfair labor practice case before the Board involving
the Respondent, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(4) and (1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondent's employee Garlon Tyler was not at the
time of his discharge a supervisor within the meaning of
Section 2(11) of the Act
7. Respondent has not discriminated with respect to the
hire and tenure of employment, or terms and conditions of
employment of Wendell Naylor within the meaning of Section
8(a)(3) and (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions
of law and upon the entire record in the case, it is
recommended that Respondent Moulton Shirt Corporation, its
officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Discouraging membership in any labor organization of
their employees, by discriminating in regard to their hire,
tenure, or any other terms or condition of employment.
(b) Questioning employees concerning their union activities
and sympathies.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Questioning employees concerning the union member- IT IS FURTHER RECOMMENDED that the complaint
ship, activities and desires of other employees. insofar as it charges Respondent with the discriminatory
(d) Threatening employees with discharge if they engage in discharge of Wendell Naylor, incorrectly spelled Windell
union activities. Naylor in the consolidated complaint, be dismissed.
(e) Threatening employees with reprisals for engaging in
union activities.
(f) In any manner interfering with, restraining or coercing
employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2. Take the following affirmative action which will effect-
uate the policies of the Act.
(a) Offer immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, to the following named
employees-
Scottie Bishop Garland R. Jones
Chester Borden Jake Blaxton
Leona Borden Garlon Tyler,
dismissing, if necessary, any person hired on or after their
respective discharges, and make whole the aforesaid employees
in the manner set forth in the section of this Decision entitled,
"The Remedy."
(b) Notify the employees named in the above paragraph, if
presently serving in the Armed Forces of the United States of
America, of their right to full reinstatement upon application
in accordance with the Selective Service Act and Universal
Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze
the amounts of backpay and other benefits due under the
terms of this Order.
(d) Post at its plant at Moulton, Alabama, copies of the
attached notice marked "Appendix.s24 Copies of said notice
on forms provided by the Regional Director for Region 10,
after being duly signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all the 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.
(e) Notify the Regional Director for Region 10, in writing,
within 10 days from the date of this Order, what steps have
been taken to comply herewith 25
24 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice In
the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
25 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read - "Notify said Regional
Director , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL offer the following named employees immedi-
ate, full and unconditional reinstatement to their former
positions or substantially equivalent positions, without
prejudice to their seniority or other rights, privileges or
working conditions, and make them whole for any loss of
pay each may have suffered as a result of the discrimination
against them:
Scottie Bishop Garland R. Jones
Chester Borden Jake Blaxton
Leona Borden Garlon Tyler
WE WILL NOT discourage membership in International
Ladies' Garment Workers' Union, AFL-CIO, or any other
labor organization, by firing or otherwise discriminating
against any of our employees because of their union
activities.
WE WILL NOT fire you or treat you unfairly because
you join a union or favor a union.
WE WILL NOT question you about your union
membership, activities, or feelings about any union.
WE WILL NOT question you about whether any other
of our employees are members of a union or as to their
union activities, sympathies or feelings.
WE WILL NOT threaten to fire you because you take
part in union activities.
WE WILL NOT threaten you with making things harder
for you on your job because you take part in union
activities.
WE WILL NOT fire you for filing or stating you are
going to file a statement with the National Labor Relations
Board in any case in which the Company is involved.
WE WILL NOT in any other manner interfere with,
restrain or coerce employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist the above-named or any other labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
'MOULTON SHIRT
CORPORATION
(Employer)
Dated By
(Representative) (Title)
Note We will notify the above-named employees if
presently serving in the Armed Forces of the United States of
their right to full reinstatement upon application in accordance
MOULTON SHIRT CORP. 905
with the Selective Service Act and the Universal Military If employees have any question concerning this notice or
Training and Service Act of 1948, as amended, after discharge compliance with its provisions, they may communicate
from the Armed Forces directly with the Board's Regional Office, 730 Peachtree
This notice must remain posted for 60 consecutive days Street, N.E. Atlanta, Georgia 30308, Telephone 526-5741.
from the date of posting, and must not be altered, defaced, or
covered by any other material