Textron, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1972

199 N.L.R.B. 131 (N.L.R.B. 1972)

TEXTRON, INC. 131
Textron, Inc. (Talon Division) and International La-
dies' Garment Workers' Union, AFL-CIO. Cases
11-CA-4481, 11-CA-4571, 11-CA-4607, and 11-
RC-3274
September 19, 1972
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On April 5, 1972, Trial Examiner Sidney Sher-
man issued the attached Decision in this proceeding.
Thereafter, Respondent and General Counsel filed
exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings,' and conclusions, as
herein modified, and to adopt his recommended Or-
der.
We agree with the Trial Examiner that Respon-
dent violated Section 8(a)(1) of the Act by Plant Man-
ager Karle's statements that if the employees selected
the Union as their bargaining representative, he
would or could "bargain from scratch" and that the
employees might well end up with fewer benefits than
they currently enjoyed. These statements were made
in April 20 speeches which, the Trial Examiner found,
also contained other coercive remarks. When viewed
in this context and in light of Respondent's other
unfair labor practices, the "bargain from scratch"
statements reasonably tended to threaten employees
with loss of existing benefits if they selected the Un-
ion.2
We also agree with the Trial Examiner, for the
reasons stated by him, that Respondent violated Sec-
tion 8(a)(3) of the Act by discharging Shillinglaw and
Burgess because of their union activities. In so find-
ing, it is unnecessary, however, to resolve the question
of whether or not Shillinglaw and Burgess might actu-
ally have interfered with production in violation of
Respondent's no-solicitation rule,' since the record
amply demonstrates, and the Trial Examiner found,
that the rule was, in any event, disparately applied
and enforced against the discriminatees to prohibit
union activities.
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Respondent, Textron, Inc. (Talon Division), York,
South Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
IT IS FURTHER ORDERED that the election in Case
I1-RC-3274 be, and it hereby is, set aside and that
proceeding is hereby dismissed.
I The Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions were
incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d
362 (C A 3) We have carefully examined the record and find no basis for
reversing his findings.
2 Host International, Inc, 195 NLRB No 66, discussed by the Trial Exam-
iner, is clearly distinguishable on its facts, as there stated. The Trial
Examiner's reference (at fn 13 of his Decision) to that case as "a sport case"
is, therefore, inaccurate
3In the absence of exceptions thereto, we adopt, pro forma, the Trial
Examiner's finding that Respondent's no-solicitation rule is not invalid on
its face
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The initial charge
herein was served upon Respondent I on February 11,1971,2
the consolidated complaint issued on August 4, and on
September 16 the Regional Director issued an order consol-
idating the instant complaint cases with the representation
case. The hearing was held on November 2 through 5, No-
vember 30, and December 1. The issues litigated related to
alleged violations of Section 8(a)(1), (3), and (5) of the Act.
After the hearing briefs were filed by the General Counsel
and the Union?
Upon the entire record,4 including the demeanor of the
witnesses, I make the following:
FINDINGS AND RECOMMENDATIONS
I RESPONDENTS BUSINESS
Textron, Inc., hereinafter called Respondent, is a cor-
poration with a principal office at Providence, Rhode Is-
land. It owns and operates a number of plants throughout
the United States, including the one at York, South Caroli-
na, involved herein. It annually ships in interstate com-
merce goods valued at more than $50,000. Respondent is
engaged in commerce under the Act.
II THE UNION
International Ladies' Garment Workers' Union, AFL-
CIO, hereinafter called the Union, is a labor organization
under the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
1 Respondent's name appears as amended at the hearing
2 All dates herein are in 1971, unless otherwise indicated
3 There was also received a postheanng stipulation which was admitted in
evidence as TX Exh 1. See the order of February 3, 1972
4 For corrections of the transcript and various evidentiary rulings, see the
orders of February 3 and March 6, 15, and 23, 1972
199 NLRB No. 17
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE MERITS
The following issues were litigated herein:
1. Whether Respondent violated Section 8(a)(l) by in-
terrogation, threats, surveillance, creating an impression of
surveillance and of the futility of employee union activity,
and admonishing an employee to have no traffic with the
Union?
2. Whether Respondent violated Section 8(a)(3) by dis-
charging employees for union activity?5
3. Whether Respondent violated Section 8(a)(5) by re-
fusing to bargain with the Union on and after February 15?
4. Whether Respondent interfered with freedom of
choice in the Board election held on April 22?
5. Whether the challenges to certain of the ballots cast
in that election should be sustained?
A. Sequence of Events
Respondent employs about 120 employees at the in-
stant plant. The Union's attempt to organize the employees
began late in January with the circulation among the em-
ployees of a petition on behalf of the Union. The signing of
authorization cards for the Union began about the same
time and continued during the next few months. On the
morning of February 3, Plant Manager Karle received a
report concerning the circulation of the foregoing petition
and proceeded to address the employees on each of the next
three shifts in captive audience speeches, in which he ex-
pressed his views about unions and warned the employees
against engaging in union activity to the neglect of their own
work or so as to interfere with the work of others. On Feb-
ruary 9, Respondent received a telegram from the Union
advising that 29 named employees were members of the
Union and of its organizing committee 6 On February 15,
the Union sent Respondent another wire, claiming to have
authorization cards from a majority of its production and
maintenance employees and requesting recognition. In a
letter of February 18, Respondent rejected that request,
expressing doubt concerning the Union's majority status.
Observing that the Union had already filed a petition with
the Board for an election , Respondent suggested that the
issue be settled in that proceeding.
Between February 4 and March 15, eight of the alleged
discriminatees ceased to work for Respondent under the
circumstances described below. The Board election was
held on April 22. On April 20, management representatives
again addressed the employees on the subject of the Umon.
The election resulted in 53 votes for the Umon, 59 against,
and 14 challenged ballots, including the ballots of 8 of the
alleged discriminatees. The Union filed timely objections to
the election.
On September 16, 1971, the Regional Director issued
a report on the objections and challenges, in which he remit-
ted all the objections and most of the challenges to the
5 The complaint alleged 14 discriminatory discharges. Of these, Durbin's
case was dismissed at the hearing on Respondent 's motion, the cases of
Lowry and P. Williams were withdrawn by the General Counsel at the
hearing , and that of W. Miller was withdrawn after the hearing.
6 TX Exh 2
instant complaint case.
B. Discussion
1. The 8(a)(1) issues
a. Interrogation
Burgess worked on the third shift from 11 p.m. to 7 a.m.
He testified that he reported for work at 12:15 a.m. on
February 4, 1-1/4 hours late, arriving in the middle of Plant
Manager Karle's speech to the third shift; that about 12:30
a.m., immediately after the completion of the speech, he
accompanied his supervisor, Ogden, to his office, where the
latter asked Burgess what he thought of the speech; that,
when the witness gave a noncommittal answer, Ogden de-
clared he would fight the Union because it would not "help
the company's production"; that about this time E. Bailey,
K. Branham, and A. Wade amved in Ogden's office; that
he asked all four what they thought about the Union; that
he told the others that Burgess had said he was opposed to
the Union; and that the witness denied that such was the
case.
E. Bailey testified about an occasion when Ogden
asked him and Burgess what they thought about the Union,
but was of the opinion that this happened on February 7.
K. Branham testified that on an unspecified date Ogden
asked the witness what he thought of Karle's speech. A.
Wade was not examined on the point.
Ogden denied that he had asked any of the foregoing
employees what they thought about the Union. He ac-
knowledged only that after Karle's speech he told K. Bran-
ham that he did not think a union would help production
but he insisted that this was in reply to a question from K.
Branham about Ogden's views on the speech.?
Although Burgess' version was not fully corroborated
by the other employees, I was favorably impressed by his
demeanor and the circumstantiality of his account, and find
that Ogden did ask him early in February what he thought
of the Umon. Moreover, on the basis of demeanor I credit
K. Branham and find that Ogden asked him what he
thought of Karle's speech anent the Union. Such inquiry
was calculated to convey the impression that Respondent
was seeking a clue to K. Branham's sentiments about the
Union.
Garvin testified that early in February Supervisor Cain
came to his work station and asked what he thought of
Karle's speech and how he felt about the Union coming into
the plant, and that there ensued a discussion, in which Cain
deprecated the employees' need for a union. Cain acknowl-
edged that he asked several employees, including Garvin,
what they thought of Karle's speech. While denying that he
asked Garvin how he viewed the advent of the Union, Cain
admitted that the two had a discussion of the Union along
the lines related by Garvin.
7 Ogden, moreover, disputed Burgess' chronology, asserting that Karle's
speech began at 11.10 p .m. on February 3, and that Burgess reported at 11:30
p in. However, he did not deny that Burgess amved in time to hear , and did
hear, at least part of Karle's speech . While Karle's own chronology indicates
that the speech was concluded well before 11.30 p.m ., I credit Burgess'
testimony that he joined the meeting while it was still in progress , since he
had no apparent ulterior motive for fabricating such testimony.
TEXTRON, INC. 133
On the basis of demeanor, as well as various matters
reflecting on Cain's credibility, which are discussed else-
where in this Decision, Garvin is credited. Moreover, for
reasons already noted, even Cain's admitted interrogation
of Garvin and others about their views concerning Karle's
speech would constitute an apparent probing into their un-
ion sentiments.
Simpson testified that in mid-March Supervisor
Greene came to her work station, asked if she had heard
about the union campaign and what she thought about it,
and promptly repeated the same questions to Kemp, who
worked next to Simpson. Although acknowledging that he
did on that occasion approach Simpson while she was at
work and ask her what she thought of Karle's speech,
Greene disputed the balance of her testimony. I was more
favorably impressed by the candor of Simpson's demeanor
and credit her. In any event, for reasons already noted, even
Greene's admitted query about the speech would, in itself,
be construable as interrogation about Simpson's union sen-
timents.
Simpson added that the day before the election Person-
nel Director Jones came to her work station and, after ref-
erring to the union button she was wearing, asked her if she
had "thought it over," and, when she answered that she had,
a discussion ensued about insurance benefits and some oth-
er matters mentioned in Karle's speech. Jones acknowl-
edged that he made some reference to Simpson's union
button but denied that he asked her if she had "thought it
over." On the basis of her demeanor, as well as the circum-
stantiality of her testimony, Simpson is credited.
There was no substantial dispute, and it is found, that
after Karle's speech early in February Supervisor William-
son asked M. Branham what she thought about the speech.
Brakefield testified that on April 20, after the preelec-
tion speech delivered to the employees that day, Supervisor
Cain asked her if she had any questions about the speech;
that a discussion ensued, in which Cain cast aspersions on
the Union's motives, warned her of the perils of associating
with unions, and admonished her to think the matter over
and let him know of her decision; that later that day the
discussion was renewed along the same lines; and that the
next morning Cain asked her if she had thought the matter
over, whereupon she showed him the union pin she was
wearing. Cain denied any interrogation of Brakefield, insist-
ing that the only discussion of the Union between them was
initiated by her, when she asked him why other employees
had turned against her; and that he suggested that it might
be due to their antagonism to the Union. Since I regard
Brakefield as a more candid witness than Cain, I credit her
and find that she was interrogated as related by her.
A. Wade testified that on February 9, his supervisor,
Ogden, asked him either whether he was for the Union or
why he was for the Union,8 and warned that if the witness
contacted the Union he would be discharged. However, he
admitted that in his pretrial affidavit he attributed to Ogden
the somewhat different threat that a few people would be
discharged if they contacted the Union. Ogden denied that
there was any such conversation. In view of A. Wade's
apparent uncertainty and vacillation about the tenor of
s The witness gave both versions
Ogden's remarks, and as I was not favorably impressed by
A. Wade's demeanor, I credit Ogden and find no interroga-
tion here.
C. Quinn testified that over a period of several weeks,
beginning in February, his supervisor, Greene, would come
to the witness' work station once or twice a week and ask
him what he thought about the Union. Greene insisted that
his interrogation of C. Quinn consisted only in asking him,
after Karle's February speech, whether he had any ques-
tions about it. While I credit Greene, even his admitted
inquiry about Karle's speech constituted an apparent prob-
ing into C. Quinn's union sentiments.
Carpenter testified that on April 21, Cain asked her if
she had any questions about the speech delivered by Karle
the day before and that, when she answered in the negative,
he launched into a discussion of the shortcomings of unions
and the misfortunes that might befall her under a union, and
gave a vivid account of the hardships his own family had
suffered during the strike, in which he had been involved in
previous employment. Cain acknowledged that he asked
Carpenter whether she had any questions about Karle's
speech, but denied that he made the antiunion remarks that
she ascribed to him. On the basis of demeanor, as well as
the circumstantiality of her testimony, Carpenter is cred-
ited.
In the context of the other violations found below, it is
determined that the foregoing interrogation of Burgess, E.
Bailey, Garvin, C. Quinn, Simpson, K. Branham, Brake-
field, and Carpenter was coercive and, hence, unlawful.
b. Creating impression of futility of union activities
Although Karle made speeches to the employees on
February 3 , in which he expressed his views about the Un-
ion, the General Counsel in his brief relies only on those
made by Karle and another official , J. Williams , on April
20, 2 days before the election, and only the latter speeches
will be here considered . According to K. Branham, Karle
stated, inter alia, that the existing level of employee benefits
at the instant plant was higher in certain respects than it was
under a union contract at Respondent 's Woodland plant;
that the Union's only weapon was the strike ; and that in
case of a strike the strikers would be permanently replaced
and could not get their jobs back . As for J. Williams, K.
Branham attributed to him the remark that , if the Union
won the election , bargaining would start from scratch and
not from the level of existing benefits . Brakefield testified
that Karle stated , inter alia, that, in dealing with a union,
Respondent's approach would be not what it could grant
the employees but what it could "get by with ." M. Branham
testified that Karle said that the only way the Union could
obtain anything for the employees was to strike ; that Re-
spondent would not yeild to a strike but would fill the
strikers' fobs with permanent replacements ; that any bar-
gaining with the Union would not have to start from ex-
isting benefit levels but would start from the level of the
minimum wage law; that the Union could not get the em-
ployees anything that Respondent was not willing or able to
grant; and that a strike was the only means the Union had
to pressure Respondent to give anything more.
Karle testified that , while in the April 20 speech he
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that economic strikers could be replaced , he did not
say they never could return , and he denied saying that the
Union could not get anything for the employees that they
could not get without a union . Personnel Director Jones
testified that Karle said that replaced strikers could not
return so long as their jobs were filled , that in many cases
employees ended up with "less money" than they had be-
fore bargaining began , that no law required bargaining for
more than the minimum wage of $1 .60 per hour , and that,
if economic conditions so required , Respondent could cer-
tainly bargain in that fashion . Jones professed to be unable
to recall any reference to strikes other than that Respondent
would not yield to strike pressure nor did he recall any
statement by Karle that the employees could get as much
without a union as with a union . However , Supervisor
Shives did recall such a remark . According to Shives, Karle
also said that Respondent was required only to bargain in
good faith and that all the Union could do was call a strike,
that the Union could not force Respondent to do anything,
and that , if the strikers' fobs were filled by permanent re-
placements , the strikers could not return to work so long as
such replacements were still there.
It is apparent from the foregoing that there was no
substantial dispute that Karle told the employees that col-
lective bargaining does not always result in higher wages but
often has the opposite effect ; that both Karle and J. Wil-
liams warned that , if the Union won the election , Respon-
dent would not have to bargain from the level of existing
benefits but would start from "scratch" or, with respect to
wages, from the level prescribed by the minimum wage law;
that Karle added that , in bargaining with the Union,
Respondent's approach would be not what it could afford
to pay but what was the least it had to give , that the only
way the Union could force Respondent to grant more than
it was willing to concede was to call a strike, that Respon-
dent would not yield to strike pressure , and that the strikers'
jobs would be filled by permanent replacements.
There was dispute , however , as to whether (1) Karle
said flatly that permanently replaced strikers could not get
their jobs back or whether he merely said, as Jones and
Shives claimed , that they could not return to work so long
as their jobs were filled ; (2) Karle said that the employees
could not get anything more with a union than they could
get without a union ; and (3) as Jones claimed, Karle qual-
ified his warning that Respondent would bargain from the
level of the legal minimum wage by stating that it would do
so if economic conditions dictated.
As to all the foregoing areas of conflict , it may be noted
that , although Jones expressed the belief that a tape rec-
ording was made of the April 20 speeches, and
Respondent 's counsel acknowledged at the hearing that he
had the written text of Karle 's speech , Respondent did not
produce such recording or text nor did it explain its failure
to do so . That circumstance warrants the inference that such
documentation would not have aided Respondent's case.9
Moreover , with respect to item (3), above , I deem it signifi-
cant that Karle , himself , did not corroborate Jones' version,
and that there was, in any event , no denial that J. Williams
9 See Auto Workers v N L R B, 459 F 2d 1329 (C.A D C .), for a collection
of Board and court decisions on this point.
made the reference to bargaining from scratch ascribed to
him by K . Branham . 1° And, as to item (2), above , not only
was Jones ' corroboration of Karle 's denial less than une-
quivocal , but Shives ' testimony directly contradicted
Karle's. It is therefore found that both Karle and J. Wil-
liams stated , without any qualification , that bargaining
need not start from the level of existing benefits but would
start from scratch . It is further found that Karle declared
that collective bargaining often resulted in a reduction in
existing benefits ; that, in bargaining with the Union, Re-
spondent would be governed not by how much it could
afford to give but by how little it could get by with ; that the
Union could not get the employees anything that Respon-
dent was not willing to grant ; that a strike was the Union's
only means of bringing pressure on Respondent for bar-
gaining concessions but Respondent would not yeild to
such pressure ; and that the strikers ' jobs would be filled by
permanent replacements , thereby precluding the strikers
from reclaiming their jobs.
In Raytheon Company, 160 NLRB 1603, the Board af-
firmed a Trial Examiner 's finding of an 8 (a)(1) violation
based on remarks in an employer 's speech , which were strik-
ingly similar to those enumerated above , and which were
summarized by the Board as follows:
That ... negotiations would start from scratch and the
employees could end up losing some of their present
benefits; that a union could not guarantee [the employ-
ees] anything but could gain for them only such bene-
fits as the Company would grant ; that union's only
weapon for enforcing bargaining was the strike and a
strike would impose hardships ....
In Astronautics Corporation of America, 164 NLRB 623,
the Board found to be unlawful the following statement:
Under the law an employer is not required even to
continue in effect its existing benefits if a union wins.
Bargaining is a two-way street and it starts from
scratch.
The Board characterized that statement as carrying with it
"the coercive implication that the employees may wind up
with less than . . . they already have , in the event they
exercise their lawful right to bargain collectively ...."
In Aerovox Corporation of Myrtle Beach, South Caroli-
na, 172 NLRB No. 92 , the Board found to be violative of
Section 8(a)(1) an employer 's letter , which stated: "Remem-
ber, the Union cannot guarantee that present benefits will
continue under a union contract . Bargaining starts from
scratch! " The letter added that a strike was the union's only
recourse against an "unwilling" employer. The Board said:
The tone of the letter left little doubt but that Respon-
dent would be such an "unwilling" employer. In the
context of the other substantial unfair labor practices
committed by Respondent , we find that the letter was
calculated to imply a threat of reprisal should the em-
ployees select the Union and was also intended to make
the employees realize the futility of selecting a union;
it was thus coercive.
And, in Ohn Mathieson Chemical Corporation, 185
NLRB 467, the Board affirmed a Trial Examiner 's finding
that Section 8(a)(1) was violated by an employer 's statement
that "all benefits would be negotiated from scratch if a
10J Williams did not testify
TEXTRON, INC. 135
union represented you." The following rationale in the Trial
Examiner's Decision I1 is particularly pertinent here:
By its statement of position regarding existing benefits
if the union came into the plant, Respondent ... in
effect threatened its employees with the loss, or possi-
ble loss, of existing benefits .... Implicit in the fore-
going detriment attached to the advent of a union was
the converse benefit of the continuation of existing
benefits if the plant remained non-union ....
Here, Respondent's threat that it would bargain from
scratch did not stand alone, but was delivered in the context
of warnings that collective bargaining often resulted in re-
duced wages, that the Union could not get anything that
Respondent was unwilling to give, that Respondent would
be more niggardly in dealing with a union than would other-
wise be the case, and that if the Union resorted to its only
weapon-a strike-the employer would not yeild to such
pressure and those employees who struck would be re-
placed, thereby precluding their reinstatement.
While an employer is entitled to tell his employees that
he will bargain hard, Section 8(c) does not protect the ex-
pression of an intention to make bargaining demands that
will place in jeopardy the employees' existing benefits,
where, as here, the clear implication is that he will make
such demands merely because he is required to deal with a
union so that the only way the employees can be certain of
retaining their existing benefits will be to reject the union.
As the Board stated in the Astronautics case, supra, such
remarks constituted, in essence , a "threat of reprisal should
the employees select the Union and [were] also intended to
make the employees realize the futility of selecting a union
...." They were therefore violative of Section 8(a)(1), and
all the more so when considered in the context of the other
unfair labor practices found above.12
In Host International, Inc., supra, the Board found not
to be coercive a statement by the employer's general manag-
er that the employer would bargain from scratch, even
though such statement appeared in the context of a refusal
to guarantee that existing benefits would be retained. The-
Board regarded the statement as designed merely to apprise
the employees that "unionization does not mean automatic
increases in benefits," the Board deeming to be distinguish-
able those cases where "such remarks could reasonably be
construed as a threat to discontinue existing benefits," and
the Board pointed out that no witness testified to a threat
that the employer would "actually lower wages prior to
negotiations." This appears to be the first suggestion in any
Board case that assertion of an intention to bargain from
scratch is not coercive, unless it is construable as a threat
that before beginning to bargain the employer would reduce
or discontinue all existing benefits. Heretofore, it was
deemed sufficient that the threat to bargain from scratch,
read in context, implied that the employers would negotiate
for a lower benefit level than the current one, and it was not
thought necessary that he should also threaten to cut back
any existing benefits even before beginning to bargain. In
other words, it was thought sufficient that the employer's
remark was calculated to convey the impression that the
employees might end up with less than they already had
after bargaining was over. Thus, the rationale of Host Inter-
national seems contrary to that of all the precedents dis-
cussed above, none of which is cited in Host Interna-
tional 11 Under the circumstances, it is difficult to consider
Host International as a considered reversal of the long line
of Board precedents cited above.
In any case, even apart from the threat to bargain from
scratch, the following were, under Board precedent, unlaw-
ful, in themselves:
1. The statement, in effect, that Respondent would con-
cede as little as possible to the Union, whereas, without a
union, it would grant the employees as much as it could
afford. The clear implication of this is that the employees
could expect more generous treatment, if they rejected the
Union.
2. The statement that the Union could not get for the
employees anything that Respondent would not grant them
in any event.i4
3. The statement that in case of a strike the strikers' jobs
would be filled by permanent replacements and the strikers
would not be able to return. 15
The record,shows, also, that, as found above, the day
after the foregoing speeches were delivered Cain ap-
proached Carpenter at work and engaged her in a conversa-
tion in which he stressed the disadvantages of unions.
According to Carpenter's credited version of this incident,
one of the points made by Cain was that any bargaining
with the Union would start at the level of the statutory
minimum wage. In view of what has been said above, it is
found that, by this reiteration of the theme of the speeches
delivered the day before, Respondent additionally violated
Section 8(a)(1) of the Act.
c. Creating the impression of surveillance; admonition
against union activity
Employee Simpson testified that late in March Super-
visor Williamson, by whom she had been employed as a
babysitter, came to her house and, after declaring that she
"was messing with a bunch of crooks up there at the mill,"
explained that he was referring to the "union people," and
added, "Everybody up there knows you've been setting up
meetings for these union people to meet the people." At the
same time, Williamson announced that he no longer wanted
a person like her around his children. According to Simp-
son, when later the same day she asked Williamson who had
accused her of arranging the meetings between the Union
and the employees, he answered only that the best thing she
could do was "to leave those crooks alone."
13 Moreover , the finding in that case that the general manager's remarks
were only "designed to let employees know that unionization does not mean
automatic increases in benefits " is difficult to reconcile with the finding that
the general manager repeatedly stressed that there was no guarantee that
under a union the employees would retain their existing benefits It is not clear
how such a statement can be equated with merely telling employees that
collective bargaining would not necessarily result in higher benefits. Under
all the circumstances , Host International must be regarded as a sport case
14 The Deutsch Company, 178 NLRB 616, Brandenburg Telephone Compa-
11
At p. 472 thereof ny, 164 NLRB 825, and Orkin Exterminating Company of Florida, Inc, 152
12 See Astronautics Corporation of America, supra Cf Wagner Industrial NLRB 83, 92-93
Products Company, Inc, 170 NLRB 1413, and Host International, Inc, 195 15 Bancroft Manufacturing Co, Inc, 189 NLRB No 90 (TXD) See The
NLRB No. 66. Laidlaw Corporation, 171 NLRB 1366
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williamson did not dispute Simpson's version, except
to deny that he told her that "everybody" knew about her
involvement with the Union. Simpson's demeanor made a
particularly favorable impression and she is credited. It is
found that, by telling Simpson, in effect, that management
knew she was arranging meetings between the employees
and the Union, Williamson created the impression that Re-
spondent was maintaining surveillance of her contacts with
union agents, as well as with fellow employees, for the pur-
pose of arranging such meetings. Respondent thereby viola-
ted Section 8(a)(1) of the Act.16 Further, by the admonition
to Simpson, in effect, to desist from any further contacts
with the Union, Respondent additionally violated Section
8(a)(I ).
d. Threats of discharge
The mutually corroborative testimony of K. Branham
and E. W. Bailey was to the effect that on February 9
Supervisor Ogden told them that Burgess had just been
discharged for engaging in union activities. Ogden denied
telling either E. W. Bailey or K. Branham the reason for
Burgess ' discharge. However, on the basis of demeanor, as
well as the circumstantiality of K. Branham's account, I
credit the mutually corroborative employee testimony. Bur-
gess had in fact been discharged for engaging in union
activities and, as will appear below, Respondent's defense
was that such activities interfered with the work of another
employee and Burgess was discharged on that account. Had
Ogden explained that the gravamen of Burgess' offense in
the eyes of Respondent was not his union activity but his
interference with another employee's work, a more difficult
question would have been presented. It is clear that Ogden's
actual, unqualified statement that Burgess had been dis-
charged for union activity was reasonably calculated to con-
vey the impression that Respondent regarded such activity
alone as cause for discharge. It is found, therefore, that
Respondent thereby violated Section 8(a)(1) of the Act.17
e. No-solicitation rule
The complaint alleges that since August 1970 Respon-
dent has maintained and enforced a no-solicitation rule,
which states that Respondent will not "tolerate" the follow-
mg:
Solicitations, collections of funds, pledges, subscrip-
tions, circulations of petitions, memberships or other
similar activities during working hours without special
permission from management.
It is clear that this rule was adopted long before the incep-
tion of the union campaign, and the General Counsel's
reason for attacking the rule was not explicated at the hear-
ing or in his brief. It might be urged that the foregoing rule
was invalid because of the ambiguity of its reference to
"working hours."18 However, Karle explained that the rule
16 Clermonr's, Inc, 154 NLRB 1397, 1412-1413
17 With respect to another alleged threat on February 9 by Ogden to A.
Wade , see the discussion thereof, above , in connection with the matter of
interrogation.
Is See Campbell Soup Co., 159 NLRB 74
was intended to permit only solicitations during an
employee's actual worktime and not during workbreaks.
Moreover, it is undisputed that, while Karle, in his speech
of February 3 to the employees, warned them of discharges
if they engaged in any union activity on the job, he made
it clear that this applied only to such activity as resulted in
their neglect of their own work or interference with the work
of others.19 Under these circumstances I do not find that the
rule was invalid on its face. 0
f. Surveillance
From early February until the election on April 22,
union organizers maintained headquarters at the Colonial
Motel in York, which was situated a few miles from
Respondent's plant, next to the intersection of two high-
ways-Route 5, which runs east and west, and Route 321
bypass,21 which runs north and south. The motel is south-
west of the intersection and fronts on 321 bypass.22 At the
motel the organizers interviewed employees in connection
with the Union's campaign. Plant Manager Karle and vari-
ous of his supervisors admittedly drove by the motel fre-
quently during this period. The General Counsel contends
that their purpose was to engage in surveillance of the union
activity at the motel. Karle and the supervisors denied this,
insisting that they were merely following the same route
they had taken for many years for reasons of personal con-
venience.
Shillinglaw testified that on one occasion, about 10
days before the election, she saw Karl9^j' drive by the motel
at noontime and he was coming from,/York along Route 5.
R. Stewart confirmed that he had segfi Karle pass the motel
during the preelection period, and McDaniel testified that
he had seen Karle drive by the motel "on several different
occasions" but gave no further details, except with regard
to an occasion on March 15 when he observed Karle drive
by about 4 p.m. in the same car with Supervisor A. Quinn
going toward York. Subsequently, he testified that Karle
drove by at least once a day during the preelection period
but gave no specifics as to the time of day or other circum-
stances.
Karle denied that he altered his regular route of travel
during the union campaign. While admitting that he reg-
ularly drove by the Colonial Motel at noontime during that
period, he explained that this was because it was his practice
to go home for lunch with his 4-year old daughter who
attended school in downtown York .23 Karle admitted also
190 1ne of the plant rules specifically forbade such neglect or interference
20 Considerable evidence, discussed in more detail below, was adduced
that this rule and the related plant rule against interference with work activi-
ties were disparately enforced However, the General Counsel did not allege
such disparate enforcement as a violation of Section 8(a)(1), and in his brief
cites it only as bearing on the legality of the discharges of Burgess and
Shillinglaw . The matter will therefore be considered only in that context.
21 Hereinafter referred to as "321 bypass"
22 See the diagram attached hereto as Appendix B
23 The route by the motel was the most direct one from downtown York
to Karle 's home The General Counsel contends that no witness at the motel
saw Karle pass by with a child However, the only witness as to Karle's
noontime tops was Shdlinglaw and her testimony is silent as to whether or
not he was accompanied by a child. At any rate, a 4-year old girl , described
by Karle as only 3 feet tall, would not have a high degree of visibility,
particularly when, as was the case here , the driver is seated between her and
the witness
TEXTRON, INC.
that he drove by the motel on his way home in the evening
because that was the most direct route to his home from the
post office in downtown York, to which he delivered mail
every evening. He denied that dunng the period in question
he drove by the motel with A. Quinn, except for one occa-
sion , when Quinn drove him home from a meeting late at
night, Obviously, this was not the occasion referred to by
McDaniel. In any case, it is not clear whether there were any
employees in front of the motel on that occasion. 24
As for Karle's denial that he changed his route of travel
during the Union's campaign, the only contrary testimony
was that of McDaniel that after the election the frequency
of Karle's trips past the motel changed from at least once
a day to once a week. However, such testimony is not neces-
sarily in conflict with Karle's, since it indicates only the
number of times that McDaniel saw Karle drive by after the
election and would have more weight as evidence of an
actual decline in the number of such trips, if it were shown
that McDaniel's opportunity to observe Karle's driving
habits were the same after, as before, the election. 21 Apart
from this, it may be noted that, although Karle admittedly
drove by the motel daily, earlier in his testimony McDaniel
repeatedly stated that during the nearly 3 months of the
union campaign he had seen Karle pass the motel only on
"several" occasions. If that be so, one would have to con-
clude that the number of Karle's trips observed by Mc-
Daniel was no criterion of the number actually made either
before or after the election.
With respect to Cain, Shillinglaw claimed to have seen
him drive by the motel after 3 p.m., about a week before the
election. Garvin attested to having seen Cain drive by the
motel two or three times, the last occasion being on April
22, after the counting of the ballots, and that he gave a "V"
sign to the group of employees in front of the motel. W.
Bailey related that during the union campaign he had seen
Cain pass by the motel after the 3 p.m. shift change at least
two or three times a week. R. Stewart stated that he saw
Cain drive by the motel during that period, but gave no
details. Cain admitted that he drove by the motel every
workday on his way to and from work, explaining that this
was the most direct route to his parents' home, with whom
he left his child while he and his wife were at work. He
insisted that he had been doing this for 4 years, denying that
he had made any change in his route during the union
campaign. Absent any refutation, such testimony is cred-
ited.
Garvin testified that on the Saturday before the elec-
tion, while at the motel, he saw Supervisor A. Quinn come
down 321 bypass from the direction of the plant and turn
eastward on Route 5 toward downtown York. McDaniel
24 When asked about this , McDaniel answered only that "a lot of times"
employees would stand in front of the motel and talk.
Karle admitted that he also drove by the motel most mornings on the
way to work , although there was a slightly shorter, alternative route that he
could take . He explained that he tended to avoid that route because of a
dangerous condition at an uncontrolled intersection . Moreover , there was no
evidence that any employees were about the motel that early in the day
Whatever evidence there is on that point in the record indicates that employ-
ees gathered there only at shift change time in the afternoon.
25 Thus , one would have to know whether , after the election , McDaniel had
the same occasion as before the election to be outside the motel during the
afternoon shift change . There was no evidence on this score
137
testified that on March 15, he saw A. Quinn come down 321
bypass from the direction of the plant about 3:30 p.m. and
turn westward on Route 5, and that there were several em-
ployees in front of the motel at the time 26 R. Stewart also
claimed to have seen A. Quinn drive by the motel during
the preelection period. W. Bailey related that about March
15,2 while at the motel, he saw A. Quinn come down 321
bypass after 3 p.m. from the direction of the plant. A. Quinn
explained that since 1963 he has used the same route in
going to and from work and that, although there is an
alternative route he could take, he prefers the one by the
motel because it is no longer than the others and is less
congested. In his brief the General Counsel points out that
according to the map of York in evidence 28 the alternative
route is in fact shorter than the one by the motel. The map
does, indeed, show that the alternative route is slightly
shorter.29 However, it is clear that the route by the motel
bypasses a good deal of the downtown area of York, and
there was, in any event, no contradiction of Quinn's testi-
mony that he has used the same route for 8 years.30
Shillinglaw testified that late in the afternoon on a day
in mid-Apnl she saw Supervisor Hall come down 321 by-
pass from the direction of the plant, that he continued on
that route, driving slowly past the front of the motel, and
waved to her. R. Stewart also claimed to have seen Hall
drive by the motel during the union campaign. Hall insisted
that he had not altered his itinerary during the more than
3 years he had worked for Respondent and that during that
period he usually took the route by the motel in traveling
between the plant and his home. He added that on a Sat-
urday morning he drove by the motel en route to a liquor
store on 321 bypass where he had been trading for over 3
years and that, when employees standing in front of the
motel whistled and shouted at him, he waved to them.31 The
General Counsel cites as reflecting on Hall's credibility his
admission that there are two other liquor stores in York
26 As related above, McDaniel also insisted that he saw Quinn return with
Karle about half an hour later That incident has already been dealt with in
connection with the discussion of the alleged surveillance by Karle
27 W Bailey gave the date as a few days before the discharge of P Wil-
liams, who was alleged in the complaint, and admitted in the answer , to have
been discharged on or about March 17
25GC Exh 4
29 A Quinn gave both distances as 2.3 miles. The map indicates that the
motel route is 2 3 miles and the other route about a quarter of a mile shorter
30 McDaniel testified at first that he "very seldom" saw Quinn drive by the
motel during a period of 2 or 3 weeks after the election , and finally asserted
that he did not recall seeing him drive by at all during that period However,
with respect to a period of about 3 months before the election, McDaniel
cited only one occasion when he saw Quinn pass the motel.
While there was no explanation as to why A. Quinn, as McDaniel
testified , turned west on that occasion, rather than east, in the direction of
his home, there is no reason to infer that he did so for purposes of surveil-
lance He would be in no better position to engage in surveillance by making
one turn rather than the other
31 He was not asked specifically about the incident described by Shillin-
glaw, which, if she be credited , occurred at a different time from the one he
alluded to If, on that occasion , as she related , he continued on 321 bypass
past the motel, instead of turning eastward on Route 5, he would be deviating
from the most direct route to his home . Moreover , in driving past the motel,
which fronted on 321 bypass, he would be more likely to be observed by any
employee standing there than if he had turned eastward However, according
to Shillinglaw, the incident occurred about 2 hours after the 3 p.m. shift
change, and there was no evidence that there was anyone in front of the motel
at that time other than Shillinglaw , who had not worked for Respondent
since February 8, and her husband, who, so far as the record shows, was not
an employee of Respondent
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closer to his home than the one on 321 bypass. However,
there was no contradiction of Hall's testimony that he had
always patronized the more distant one, which was operated
by a friend.
All things considered, the evidence does not appear to
preponderate in favor of a finding that the reasons given by
the foregoing management personnel for driving by the mo-
tel were pretextual and that the real reason was to engage
in surveillance of union activity.32
The General Counsel contends that, even if the reasons
given by them for driving by the motel are credited, it would
nevertheless, be found that once the supervisors arrived in
the vicinity of the motel they took advantage of the opportu-
nity to engage in surveillance. In support of this contention,
the General Counsel cites employee testimony that the vari-
ous supervisors slowed down as they passed the motel and
looked in the direction of the employees standing about.
With regard to the matter of slowing down, the record
shows that at the intersection of Route 5 and 321 bypass
there is a traffic light and it is not clear from the employee
testimony on how many of the occasions described therein
the supervisors were required to stop for the light as they
approached the intersection. Moreover, in most instances
such testimony was to the effect that the particular supervi-
sor made a turn at the intersection, which in itself would
require that he slow down. Whenever a specific rate of speed
was ascribed by an employee to a'supervisor, it was usually
estimated about 15 miles an hour, which does not seem
unreasonably slow for one starting from a complete stop or
making a turn without coming to a complete stop. It is true
that McDaniel claimed that, in making the turn westward
on Route 5, the supervisors had sufficient room to acceler-
ate to a higher speed while they were still within view of the
employees in front of the motel.33 However, based on my
own observation of the scene during my stay in York, it is
found that McDaniel's estimate that the distance between
the highway and the front of the motel was 100 to 200 feet
is an overstatement.34 I would estimate it to be not more
than 50 feet and take official notice of that fact.35 Such a
short distance would hardly afford sufficient room for ac-
celeration to a rate above 15 miles an hour after coming to
a full stop or slowing for a turn. There remains the employee
testimony, which was not disputed by any of the supervi-
sors, that, in passing the motel, they looked in the direction
of the employees. However, one can conceive of any num-
ber of innocent reasons for their looking in that direction,
including the fact that, in approaching the intersection from
the east or north, as was most frequently the case, the front
of the motel would be within their range of vision, unless
they deliberately averted their eyes. There is thus insuffi-
cient basis in the record for finding that such glances as they
cast at the employees were advertent or were prompted by
32 R. Stewart testified that he saw Personnel Director Jones drive by the
motel during the preelection period, but gave no details Joneswas not
questioned on the point The complaint contains no allegation of surveillance
by him, and the General Counsel's brief is silent in that regard In view of
the vagueness of R Stewart 's testimony, and as the issue was not, in any
event, sufficiently litigated, I find no unlawful surveillance by Jones
33 The motel would be on the driver' s left as he made a right turn
74 That is, a fortiori, true, also, of W Bailey's estimate that the distance was
50 to 60 yards.
35 See the order of March 6, 1972.
a deliberate purpose to engage in surveillance rather than by
idle curiosity.36
Dismissal of the allegation of surveillance will be rec-
ommended.
2. The 8(a)(3) issues
a. Shillinglaw
In the morning of February 3, it was reported to Karle
that Shillinglaw was one of the sponsors of the petition
being circulated among the employees on behalf of the Un-
ion. She was discharged on February 8 under the circum-
stances next discussed. Early in the morning of February 8,
she admittedly engaged T. Ramsey 37 in conversation, ask-
mg him if he would like to sign a union card. While she
insisted that this occurred in the plant canteen during a
workbreak, T. Ramsey and Supervisor Cain, who claimed
to have observed the incident, testified that it happened at
her work station during worktime, that the conversation
lasted from 3 to 5 minutes, and that T. Ramsey complained
to Cain that Shillinglaw had solicited him to sign a union
card.
Later that morning, Shillinglaw was notified by Head
Foreman Hall of her discharge for engaging in union activi-
ty while at work, and the reason assigned by Karle at the
hearing for her discharge was that she had on the occasion
described above neglected her work and interfered with that
of T. Ramsey. It thus appears that the rule involved in her
case was that of inveighing against neglect of, or interefer-
ence with, work activities, rather than the no-solicitation
rule described above.
There was sharp conflict between Shillinglaw, on the
one hand, and T. Ramsey and Cain, on the other, as to
where and when the incident occurred, she insisting that it
was in the plant canteen dunng a work break a few minutes
after 3 a.m., and they contending that it was at her work
station dunng worktime. However, Cain's testimony that he
personally observed this incident and that T. Ramsey,
moreover, made a report to him about it immediately after
it happened does not jibe with T. Ramsey's chronology that
the incident occurred about 5:30 a.m. and that he did not
report it to Cain until about an hour later, when Cain came
to work.38 In that case, Cain, of course, could not have seen
36 The fact that a supervisor chances to look in the direction of employees
while engaged in union activity does not constitute unlawful surveillance R
& J Underwear Co, Inc, 101 NLRB 299, In 2, Roxanna of Texas, Inc, 98
NLRB 1151, 1162, Boreva Sportswear, Inc, 73 NLRB 1048, 1057-1058
The General Counsel cites Shillinglaw's testimony that Hall waved to
her as he passed by on the occasion in mid-Apnl discussed above and
Garvin's testimony that, in driving by the motel a few hours after the election,
Cain gave the employees a "V" sign The General Counsel would have the
inference drawn from these gestures that the supervisors were engaging in
surveillance at the time. Apart from other considerations already discussed
with regard to Shillinglaw's status as an employee at that time , I can perceive
nothing sinister in what appears to have been merely a gesture of recognition
by Hall. As for the "V" sign, the fact that Cain took the opportunity to
indicate his belief that Respondent had won the election is not persuasive
that he was engaging in surveillance, absent sufficient proof that he altered
his route or rate of speed on account of the presence of the employees at the
motel
37 He was the source of the report to management about her connection
with the union petition
38 T Ramsey reported to work at 3 that morning and Cain claimed to have
TEXTRON, INC.
what had happened at 5:30 a.m. If, on the other hand,
Cain's version is credited, it would follow that T. Ramsey
was mistaken in testifying that he reported the incident
about an hour after it happened. Apart from this apparent
conflict, I was not favorably impressed by the demeanor of
either T. Ramsey or Cain.
Moreover, it is clear that T. Ramsey was less than
candid when testifying at the hearing about statements he
had made at a pretrial interview to union representatives
about the Shillinglaw incident and a similar one involving
Burgess described below,39 and, absent any unequivocal
contradiction thereof, I credit the testimony of one of those
representatives 40 that at such interview T. Ramsey denied
that he had made any report to management about either
incident. This denial was in conflict with his own testimony
at the hearing, as well as that of Cain 4i
All things considered, I consider Shillinglaw a more
credible witness 42 Accordingly, she is credited and it is
found that the incident for which she was discharged oc-
curred in the plant canteen during a workbreak and not at
her work station. It follows that she was engaging at that
time in protected, union activity and that her discharge on
that account violated Section 8(a)(3) and (1) of the Act 43
Moreover, for reasons appearing in the discussion of the
case of Burgess, I would find, in any event, in view of the
abundant evidence of disparate enforcement thereof, that,
even if she did violate the rule, the discipline imposed on her
was not because of any interference with production but
because of the union-related aspects of her conduct.
b. Burgess
He signed a union card on February 7 at a union
meeting and reported for work later that evening for the
midnight shift. After clocking out at 7 a.m. the next day, he
encountered T. Ramsey, who, according to Burgess, was
standing in an aisle leaning on a "buggy" used to transport
zipper tape about the plant. Burgess admitted asking T.
Ramsey what he thought about the Union. Burgess added
that T. Ramsey indicated that he was not interested in the
Union and that the conversation was "very brief." T. Ram-
sey agreed that the incident occurred a few minutes after 7
a.m., but insisted that Burgess asked him to sign a union
card, and, when he refused, made a disparaging, offensive
remark. T. Ramsey added that he immediately reported to
arrived at the same time However, T. Ramsey denied that he saw Cain until
3-1/2 hours later
39 His testimony at this point became highly evasive and was marked by
selective lapses of memory
40 The Union 's trial counsel.
41 While T Ramsey, unlike Shillinglaw, had no apparent, pecuniary stake
in the outcome of this proceeding , it is clear from certain matters developed
in the course of cross-examination that he had a strong antiunion bias.
42 In a pretrial statement she told a Board agent that she had "never tried
to get authorization cards signed in the plant" She explained at the hearing
that she meant by this that she had never asked anyone in the plant to
perform the physical act of signing a card and , although T Ramsey testified
that she told him on February 8 that she had a union card in her purse for
him to sign , her version was that she told him the cards were in her car I
do not regard this matter as sufficiently cogent to outweigh the various
considerations cited above for rejecting the testimony of Ramsey and Cain
43 Even if Respondent in good faith believed, on the basis of reports
received from T Ramsey or Cain or both, that Shillinglaw was violating its
"no-interference" or "no-solicitation" rule, that would be no defense
NLRB v Burnup & Sam, Inc, 379 U.S 21
139
Cain that Burgess had interfered with his work. He ex-
plained at the hearing that the interference consisted in this
fact that he was pushing a buggy at the time and he had to
stop and listen to Burgess' remarks. Cam testified that he
saw Burgess talking to Ramsey on that occasion, that the
conversation lasted 1 or 2 minutes, that T. Ramsey was
moving some "tape buggies" at the time and was stopped
by Burgess, and that Ramsey reported to the witness that
Burgess had solicited him to sign a union card and called
him some names.
Later that morning Burgess was notified of his dis-
charge and Karle testified that the discharge was at least in
part for interfering with T. Ramsey's work.44 It appears
from the foregoing that there was no substantial dispute
that, after punching out, Burgess spoke to T. Ramsey in the
plant during his work shift, that the conversation lasted at
the most for only 1 or 2 minutes and pertained to T.
Ramsey's attitude to the Union, and that T. Ramsey
promptly reported to Cain that Burgess had been soliciting
him to sign a union card and had thereby interfered with his
work. On the issue of interference with work, the only mate-
rial conflict was whether T. Ramsey was pushing the buggy
or standing still when Burgess encountered him. On the
basis of demeanor, as well as the other matters cited above
reflecting on the credibility of T. Ramsey and Cain with
respect to the similar incident involving Shillinglaw, Burgess
is credited .41 It is accordingly found that Burgess did not
stop T. Ramsey as he was pushing the buggy but that their
conversation occurred after T. Ramsey had paused in his
operation of the vehicle. It follows that there is insufficient
evidence of a violation by Burgess of the injunction in the
printed rule or in Karle's warning of February 3 against
interference with the work of others. Moreover, even if
Respondent's version be credited, the record warrants a
finding that with regard to matters not involving union
activity Respondent has tolerated unauthorized, employee
conduct that involved violations of the rule against interfer-
ence with work where the interference was consider-
ably more serious than any interruption of work that
may have resulted from a conversation which, by
Cain's own estimate , lasted only 1 or 2 minutes 46
Thus, Alexander testified that in November 1970,
44 Another reason cited by Karle was that Burgess had used abusive lan-
guage toward T Ramsey on the same occasion However , in a compilation
submitted by Respondent of all discharges effected by it (G.C. Exh 11) the
only reason assigned for the discharge of Burgess is "Interfering with the
work of others " At any rate, Burgess' denial that he used such language is
credited for reasons discussed below
As Karle did not claim that he discharged Burgess for violating the
no-solicitation rule, there is no need to determine whether, as T Ramsey
averred, he was solicited to sign a union card or whether , as Burgess insisted,
he merely asked T. Ramsey what he thought about the Union However, it
may be observed that there is no more reason to prefer T Ramsey's version
on this point than on the other aspects of the incident
45 T Ramsey's credibility at this point was not enhanced by the fact that
in a pretrial interview he denied to the Union's counsel that he reported the
Burgess incident to management , although testifying at the hearing that he
did make such a report
In resolving the credibility issue in favor of Burgess , I have given due
weight to an apparent conflict between his testimony at the hearing concern-
ing the extent of his solicitation activity at the plant and testimony he gave
at a hearing on his claim for unemployment compensation , but, under all the
circumstances, do not regard that matter as warranting rejection of his testi-
mony.
46 Even this would seem to be an overestimate, if the content of the conver-
sation, as reported by both participants, is any criterion.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without clearing with management, she sold candy at her
loom during work, soliciting, among others, her supervisor,
Perry. She denied that she had been reprimanded therefor.
As her testimony was uncontradicted, it is credited. D.
Huffstetler testified that during a period of 2 to 3 weeks in
November 1970, she sold over 27 or 28 aprons while at
work, including 1 to Cain himself; that she would stop
employees as they passed her work station and solicit them
for that purpose, and in some cases obtain payment from
them on the spot; and that she had no permission to do this
and was not reprimanded therefor. While admitting that he
bought an apron from her, Cain denied seeing her sell any
to others.
W. Bailey testified that each year since 1967 he and his
brother, E. Bailey, have operated a betting pool in the plant
throughout the football season, taking bets from employees
and supervisors and collecting the amount of the wagers in
the plant; that this activity has been carried on during work-
time ; that in the course thereof he has taken to employees
at their work stations the cards from which they make their
selections ; that he does this every week during the football
season ; that during worktime he has taken wagers from
various supervisors, naming three who placed bets during
the 1971 season; that he has not obtained permission to
engage in this activity; and that his operation at the football
pool interferes with his servicing of other employees, since
they have to wait for him while he is "off somewhere"
arranging a wager. Absent any contradiction, the foregoing
testimony is credited. Although the foregoing activity clear-
ly violated not only the rule against neglecting , or interfer-
mg with, work, but also the rules against solicitation,
collection of moneys, and one which specifically forbade
engaging "in gambling or games of chance on Company
property," there was no evidence that W. Bailey or his
brother was ever disciplined therefor, and it is clear, in any
event, that they were never discharged on that account 47 In
fact, the record shows that during the 8 years that the instant
plant has been in operation the only employees discharged
for violating the rule invoked against them were Burgess
and Shillinglaw.
Respondent conceded that it knew that employees en-
gaged in the sale of merchandise during worktime without
the prior approval of management and without being sub-
jected to any disciplinary action therefor, and that supervi-
sors knew of W. Bailey's football pool operation; and, while
denying any personal knowledge of the matter, Karle ac-
knowledged that his supervisors had admitted to him that
such activities as are described above have been going on.
Supervisor Shives also admitted that he knew of W. Bailey's
football pool but professed to be unaware of any interfer-
ence with work as a result thereof. However, none of the
other supervisors named by W. Bailey as participating in the
betting testified on the point, although they were examined
about other matters . The inference is therefor warranted
that their testimony on the subject of their awareness of the
interference with work resulting from the Bailey's wagering
activities would not aid Respondent. Moreover, it is found
on the basis of W. Bailey's uncontradicted description of the
scope and nature of his activities that the aggregate, adverse
47 See G.C Exh 1 l
impact thereof on production would have to exceed by far
any disruption that might conceivably have resulted from
the single, brief encounter between Burgess and T. Ramsey;
and, it is inherently incredible that, while regarding Burgess'
exchange of a few remarks with T. Ramsey as such a serious
interference with work as to warrant discharge,
Respondent's management would perceive no interference
with production in the extensive, season-long, annual bet-
ting operation.
As for Alexander and D. Huffstetler, it is difficult to see
how they could consummate in less than 1 or 2 minutes
transactions such as they described and, even if they were
able to make their sales without neglecting their own
work,48 it is clear that they had to stop other employees as
they passed by, causing them to interrupt whatever they
were doing until the sale was completed. It cannot be doub-
ted, in any event, that in the aggregate such interference
with the work of other employees as a result of all the
transactions conducted by either of these ladies was far
greater than the interference ascribed by Respondent's wit-
nesses to Burgess on February 8. While Cain denied that he
was aware of any merchandising activity by D. Huffstetler
other than the one involving him, that transaction, in itself,
should have sufficed to alert him to the fact that she was
stopping employees as they passed by in order to sell them
aprons. His indifference to that circumstance contrasts
strangely with his alertness to detect and report the Burgess
incident, as well as with his zeal in Shillinglaw's case.49
The only conclusion to be drawn from the foregoing is
that the rule against interference with the work of other
employees was not invoked even against a known union
adherent like W. Bailey so long as no union activity was
involved, and that Respondent's various other rules against
carrying on during worktime activities unrelated to work
were flouted with impunity by employees.
In case strikingly similar to the one at bar, involving a
48 Alexander testified that she did not think her sales activity interfered
with her work, and Cain claimed that D Huffstetler kept an eye on her loom
even while she was making the sale to him.
49 The General Counsel adduced extensive, uncontradicted testimony that
"flower fund" collections were frequently made by employees during work-
time with the knowledge of supervisors, albeit without their prior approval,
for the benefit of bereaved or sick employees. Respondent 's rules expressly
forbid "collections of funds ," and Karle testified that the rule applied to
flower fund collections and that they required prior approval by manage-
ment However, since the Board has recently indicated that it is not disposed
to treat such collections, even though not properly authorized, as evidence
of selective enforcement of a no-solicitation rule (Sequoyah Spinning Mills,
Inc., 194 NLRB No 179), 1 do not rely thereon here
The General Counsel cites, also , the extensive testimony in the record,
which has been credited above, concerning on-the-job discussions with em-
ployees initiated by supervisors, in which the merits of the Union were
debated, particularly the testimony of J. Carpenter that Cain engaged her in
such a conversation that lasted about 30 minutes, causing her to lose produc-
tion, and the like testimony of Hill. It may be urged that under the rule of
Nutone, Inc, 112 NLRB 1153, affd 357 U S 357, such supervisory conduct
may not be treated as evidence of disparate enforcement of a no-solicitation
rule However, common sense would seem to dictate that, in determining
whether Respondent was genuinely concerned about the possible loss of a
few minutes ' production time as a result of the Burgess and Shillinglaw
incidents, the Board would be entitled to consider the fact that supervisors
were at the same time engaging dunng worktime in expositions of their
antiunion views to employees, which lasted as long as 30 minutes. This aspect
of the matter does not seem to have received any attention from the Board
or the Court in Nutone However, in view of the doubtful state of the law,
and as there is sufficient other evidence of disparate enforcement here, I do
not rely on the antiunion campaign by the supervisors.
TEXTRON, INC. 141
plant of Talon, Inc., which was the former owner of the
instant plant ,50 as well as the instant Union, and apparently
the same set of plant rules as those here under considera-
tion, the Board affirmed a finding that the respondent in
that case had violated Section 8(a)(3) and (1) of the Act by
discharging an employee for soliciting on behalf of the Un-
ion. The Board there stated:
Mrs. Ferrick's solicitation of Susan Smith and Jan-
et Delnero only took 2 to 3 minutes and in no way
interfered with their production efficiency or the
cleanup of their machines. Yet, Respondent summarily
fired Fernck on the basis of hearsay without giving her
an opportunity to defend herself or without first giving
her a warning. Further, no one else had ever been
discharged for soliciting and employees were permitted
by management to solicit freely for organizations
known as the Sunshine Club, Stanley Home Products,
Avon Products, Christmas collections for the purpose
of buying Christmas gifts for supervisors, and, the au-
thorization, just about 2 weeks before the discharge of
solicitations in connection with the operation of a num-
bers pool, although gambling was prohibited, even dur-
ing nonworking time. In many cases such solicitation
was engaged in without employees first having ob-
tained permission as the no-solicitation rule required;
nevertheless, Respondent neither put a stop to the ac-
tivities, nor reprimanded employees for failing to ob-
tain permission.
On the basis of the foregoing and the record in its
entirety, we find the purpose of the Respondent in
discharging Ferrick was not to maintain the efficiency
of production or discipline, but to use Mrs. Ferrick's
asserted violation of its no-solicitation rule as a pretext
to mask its real purpose to discourage and stop union
activity in its plant. '
To sum up, it is found that Respondent discharged
Burgess because he initiated a discussion with T. Ramsey
pertaining to the Union, and Respondent's defense that
Burgess had thereby violated a plant rule against interfer-
ence with the work of others is rejected because there was
in fact no such interference and, even if there were, enforce-
ment of that rule in Burgess ' case would constitute disparate
treatment of him because of his union activity. It follows
that, by discharging Burgess, Respondent violated Section
8(a)(3) and (1) of the Act.
c. Nichols
At the time of her discharge on February 4 -she had
been in Respondent's employ for nearly 6 years. She signed
a union card on January 27. She testified that 2 days later,
during a workbreak, she solicited Durbin to sign one in the
plant canteen; that Durbin did sign the card in a plant
corridor as they were returning to their work stations; and
that Supervisor Cain chanced to stop near the girls at the
time and was standing only about 3 feet from Durbin and
looking at her as she signed the card. This was confirmed
by Durbin but denied by Cain.
Early on the morning of February 1, Nichols was ex-
cused from work by Cain because of an emergency involv-
ing her sister . According to Cain, he instructed her to return
as soon as possible. Although Nichols denied this, it would
seem implicit in any event in a situation of that sort that she
would be expected to return to work without undue delay,
particularly as the record shows that her absence was cre-
ating problems for other employees 52 About 2 hours later,
upon returning to the plant, Nichols found a friend of hers,
Baker, waiting for her in a car near the plant, and stopped
to talk to her before entering the plant. While Nichols and
Baker insisted at the hearing that their conversation lasted
only a few minutes, Cain testified that he observed Nichols
talking to Baker outside the plant that morning and that
about 30 minutes later saw the two still so engaged. Fields,
an employee, corroborated Cain as to the length of the
conversation between Nichols and Baker. As Fields seemed
to be a disinterested witness,53 and gave a circumstantial
account of the incident, I credit her, as well as Cain, and
find that Nichols did spend about 30 minutes outside the
plant, conversing with Baker. When Nichols finally re-
turned to work that morning, Cain dismissed her for the day
as a disciplinary measure , and Nichols acknowledged that,
in so doing, he reprimanded her for being gone too long, as
well as for her low production and for having been late for
work on various occasions in the past. Nichols admitted
also that she was frequently late for work but insisted that
she had never before been reprimanded therefor. The rec-
ord shows, in fact, that she was late for work 14 times
between December 20, 1970, and February 4 (when she was
discharged), and Respondent introduced documentary rec-
ords of oral warnings given her by Cain on December 22,
1970, and January 10 for excessive tardiness. Accordingly,
her denial of prior reprimands for tardiness is not credited.
There was no contradiction of Cain's testimony that
the next day, February 2, despite the foregoing reprimands,
Nichols was again tardy, and that this was repeated on the
3d and the 4th, when she was 25 minutes late , arriving at the
plant at 7:25 in the morning. Cain testified that that morn-
ing another supervisor, Greene, reported to Cain that Dur-
bin had called in that she would be late but had said nothing
about Nichols;54 and that, when Nichols arrived at the
52 I credit the mutually corroborative testimony of Cain and Fields to that
effect Nichols did not deny that her absence affected the work of others, but
denied only that she had been specifically told by Cam , before she was
excused, that her services would be needed.
53 Although still in Respondent 's employ, she testified under subpena,
stating at the hearing that she had not wished to appear (The fact that she
signed a union card on February 13 may well have explained her reluctance
to testify )
54 An employee, Sexton , disputed this testimony, claiming to have over-
heard Greene tell Cain that morning that Durbin had reported that both she
and Nichols would be late However, Greene corroborated Cain 's version,
and both supervisors denied that Sexton was in a position to overhear
Greene 's remarks to Cain on that occasion Sexton was a union adherent and
admittedly on friendly terms with Nichols Durbin testified that she called
Greene that morning to notify him that, due to bad weather, both she and
Nichols would be late Durbin was not only a union adherent but also,
herself, an alleged discnminatee, she having quit work on February 4 because
of certain events related to Nichols' discharge I do not deem it necessary to
50 Talon, Inc , was recently acquired by the instant Respondent and the resolve the foregoing conflict, since Cain was aware , in any event, that
former's plants are now known as the "Talon Division of Textron, Inc " Nichols rode with Durbin that day, so that her lateness would necessarily
Si Talon, Inc, 170 NLRB 355. Accord Universal Cigar Corp, 173 NLRB have been due to the same conditions as Durbin 's. It is true that Cain did
865. Continued
142; DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, she explained that Durbin, on whom she depended
for a ride, had not been able to pick her up in time and that
Durbin had reported this to the plant. It was agreed that at
this point Durbin entered the office where Cain and Nichols
were closeted, but was ordered by Cain to return to work,
with the advice that if she had anything to discuss with him,
he would see her later. Cain added that he then reminded
Nichols of the reprimand and disciplinary layoff of Feb-
ruary 1, sent her home, and reported the matter to his supe-
nor, Hall. She was notified of her discharge later that
morning. Karle testified that it was he who made the dis-
charge decision; that on the morning of February 4 he
received a report concerning the events of that day, and for
the first time learned of the February 1 incident related
above; that he reviewed Nichols' tardiness record, as well
as her production record; and that he discharged her for
"low production, excessive tardiness, and failing to call in
[on February 4] when she was 20-25 minutes late." The
reasons assigned on Respondent's records for her discharge
are "Low production and Poor attendance-tardiness."55
Karle added that if he had been told on February 1 of
Nichols' delay in returning to work that morning he would
have discharged her at that time for that reason alone.
The General Counsel contends that the foregoing rea-
sons are pretextual, the true reason being Nichols' interest
in the Union, as disclosed to Cain by the January 29 inci-
dent. It accordingly becomes necessary at this point to re-
solve the conflicting testimony as to whether Cain observed
Durbin's signing of the union card on January 29. While
Cain's testimony as to other matters has been rejected, Ni-
chols has also not been credited in certain respects noted
above, and Durbin was clearly not a disinterested wit-
ness, 56 nor was her testimony a model of consistency.57
Moreover, even if the girls ' testimony be credited, it still
would not establish any knowledge by Cain of union activi-
ty on the part of Nichols. All that such testimony would
prove is that Cain saw Durbin sign a union card while
standing near Nichols. While the girls agreed that Nichols
solicited Durbin to sign the card, the latter admitted that
such solicitation had occurred some time before the actual
signing of the card, while the two were still in the canteen,
and there was no evidence that Cain was present then. Thus,
to find company knowledge of Nichols' union activity on
the basis of the above card-signing incident, it would be
necessary to infer that Cain (1) recognized the card to be a
union card58 and (2) suspected, from her proximity to Dur-
report to his superiors that Nichols had not called in. This report was, literally
speaking accurate , since she admittedly had not called in herself While, in
explaining Nichols' discharge , Karle mentioned her failure to call in on the
4th, the impression conveyed by his entire testimony on the point was that
he was more concerned about her excessive tardiness and her 30 -minute
conversation outside the plant on February 1, asserting that he regarded the
latter alone as sufficient reason for discharge . Accordingly, I do not construe
Respondent 's position to be that the fact that she, herself, failed to call in was
a material factor in her discharge.
55 G C. Exh 11.
56 See In. 54, above
57 She admitted various conflicts between her testimony and her pretrial
affidavit
58 There was no evidence that before the incident under consideration any
cards were signed in the presence of supervisors or that management knew
at that time of the Union campaign A review of all the Union cards submit-
ted in evidence to establish the Union 's majority status shows that only one
card had been signed before January 29-the one signed by Nichols
bin at the time, that Nichols had some special interest in the
matter. Moreover, even if one were to draw both those
inferences , that would not suffice to establish that the rea-
son assigned for Nichols' discharge was merely a pretext to
conceal antiunion motivation. If it were seeking such a pre-
text, Respondent could have utilized for that purpose the
February 1 incident and discharged her then instead of
merely giving her a disciplinary layoff for the balance of
the day, or Respondent could have discharged her either on
February 2 or 3, on both of which days she reported late,
without, so far as the record shows, alleging any mitigating
circumstances. However, so far as appears from the record,
Cain did not even report any of the foregoing three inci-
dents to higher management until February 4. The fact that
Respondent thus tolerated her derelictions even after Janu-
ary 29, when under the General Counsel's theory, it first
learned of her interest in the Union, militates against his
contention that she was discharged on account of such in-
terest.
Apart from this, while Nichols was the only employee
for whom tardiness is cited in Respondent's records as a
reason for discharge, there was no effective contradiction of
Karle's testimony that Nichols was late nearly every other
day during the last 6 or 7 weeks of her employment and that
this was the worst record of tardiness in Respondent's histo-
ry. There is thus no basis for finding disparate treatment of
Nichols vis-a-vis other employees, insofar as her discharge
was predicated on excessive tardiness. While it may be
urged that Nichols' tardiness was regarded more lightly be-
fore the alleged incident of January 29, than was the case
thereafter, the fact remains that Respondent did, as found
above, reprimand her twice before January 29 on account
of her tardiness, and that, despite these reprimands, she not
only loitered outside the plant on February 1 but reported
late for work on the next 3 days. Those circumstances would
seem adequate to explain Respondent's loss of patience with
her. Accordingly, I credit Karle's explanation that he dis-
charged Nichols for reasons unrelated to her union activity,
and no violation is found here.
d. A. Wade 59
He had worked for Respondent since July 1967. On
February 8 he signed a union card. His name was on the
Union's telegram of February 9, advising the Respondent
of its organizing campaign and of the names of the employ-
ees on the organizing committee.60
It is undisputed that Respondent had a longstanding
policy against permitting employees to work while under the
influence of liquor and that it had discharged employees for
reporting to work in that condition or The dunking on the
fob 61 Wade had admittedly received a reprimand in June
1970 for, inter aka, reporting to work "in unfit condition,"
and the warning notice in evidence shows that he was ad-
monished that a recurrence of this offense would result in
discharge.
His immediate supervisor, Ogden, testified that when
Wade reported for work on February 14, he appeared to be
intoxicated and the witness sent him home. Ogden's supen-
59 Hereinafter referred to in this section as Wade.
60 TX Exh 2
61 G C Exh I I shows four such discharges, in addition to that of Wade
TEXTRON , INC. 143
or, Shives , related that Ogden reported to him that morning
that Wade had come to work under the influence of liquor
and had been sent home with instructions to return the next
day for an interview with Shives ; that he discussed the
matter with Karle , who decided , in view of Wade 's previous
offense of the same nature , to discharge him; that, when
Wade came in for his interview on February 15, Karle,
however , called Shives into his office and instructed him not
to discharge Wade because he had just seen Wade and a
union organizer together at the Colonial Motel ; and that the
witness merely gave Wade a written warning and instructed
Ogden to keep a close watch over Wade . Karle corroborat-
ed Shives ' testimony, explaining that, after instructing
Shives to discharge Wade , he happened to observe Wade
and the union organizer together in front of the motel,
whereupon it occurred to him that the Union might try to
exploit any disciplinary action against Wade by falsely
charging discrimination for union activity ; that for this rea-
son, upon returning to the plant , he instructed Shives not to
discharge Wade but to give him a "stiff warning" instead;
and that, but for his apprehension that the Union might take
advantage of the situation , Wade would have been dis-
charged on February 15.
Wade admitted that he was sent home on the 14th for
appearing to be under the influence of liquor and that he
was warned that any recurrence would result in discharge.
The next incident involving Wade occurred on Feb-
ruary 25, when , according to Ogden , Wade again showed
signs of inebriation upon arriving at the plant . Ogden added
that he reported the situation to Karle, who instructed him
to verify his diagnosis of Wade 's condition by keeping him
under observation ; that further observation merely con-
firmed Ogden 's opinion , and he so advised higher manage-
ment . Shives and Karle were in substantial agreement that,
after reviewing the information from Ogden as to Wade's
condition , it was decided to discharge him, and he was in
fact discharged on February 28.
Wade admitted that he was under the influence when
he reported on the 25th . The General Counsel , nevertheless,
contends that Respondent would have condoned his condi-
tion but for his union activity . The General Counsel cites (1)
testimony by Wade that it was a common occurrence for
him to come to work under the influence of liquor and that
before February 14 he had not been disciplined therefor,
except for the one warning given him in June 1970 , and (2)
the corroborative testimony of E. Bailey that Wade had
come to work many times in an inebriated condition. The
General Counsel relies also on the testimony of S. Williams
that he has reported for work under the influence of liquor,
his condition being such that , in his opinion , his supervisor,
Ogden , could not have failed to detect it . Ogden denied that
he had ever seen Wade under the influence on any occasion
other than the two in February, discussed above , and one
occasion about a year earlier , which was presumably the
one for which Wade was disciplined in June 1970, and
Ogden denied also that he had ever noticed anything unusu-
al about S . Williams' behavior on the job . S. Williams' testi-
mony was not specific as to the frequency of his derelictions
and, although he insisted at first that he was never disci-
plined therefor , he admitted under cross -examination that
in May 1968 he had been given a disciplinary layoff by
Supervisor O. Brown for reporting for work under the influ-
ence62 As Wade's testimony has been rejected as to other.
matters, he is not deemed a reliable witness , and E . Bailey's
testimony proves too much . He contended that during the
last 2 weeks of his employment Wade reported for work
under the influence three to five times . If so, it would appear
that Ogden overlooked some of Wade's lapses from sobriety
even after Respondent was aware of his involvement with
the Union . Nor can I perceive sufficient basis in the record
for rejecting the testimony of Karle , as corroborated by
Shives, that , after Karle saw Wade in the company of the
union organizer , he decided to rescind the decision he had
already made to discharge Wade , and to give him another
chance in order to forestall any charge by the Union of
discrimination against Wade . That is hardly the conduct of
an employer who is seeking a pretext for discharging a
union adherent . It is concluded , therefore , that the ultimate
discharge of Wade for a repetition on February 25 of an
offense which had already provoked two warnings of dis-
charge , for which other employees had been discharged in
the past, and for which Wade would have been discharged
on February 14 but for his apparent involvement with the
Union , was not because of such involvement . No violation
is found here.
e. Johnson
He had worked as a dryer operator in Respondent's
dyehouse for 3 years, and was listed on the Union 's wire of
February 9 as a member of its organizing committee. On
March 1 , a Monday, he notified Supervisor Shives of his
intention to quit because of a disagreement with one of his
fellow workers, Easter, but he consented to finish out the
week . The same day Respondent presented him with a writ-
ten resignation notice which he signed . However , the next
day, having had a change of heart , he attempted to with-
draw his resignation but, for reasons discussed below, was
told that he would be laid off, in any event , on March 5, and
his employment did in fact end on that date . He has not
been recalled . Karle explained that for some time before
March 1 there had been a dearth of work for the hand tub
operators in the dyehouse and that early in January he
began to consider reducing the number of such operators.
There was received in evidence ( 1) a memo dated January
5, from him to a higher management official , in which Karle
proposed that certain hand tub operators be laid off or
transferred , and (2) a note from Karle to Shives dated Janu-
ary 6 referring to an attached copy of the foregoing memo
and stating, "If you have any turnover in this area, let's
consider this move automatically ." Karle testified that
when , on March 1 , he learned of Johnson's resignation, he
decided to put into effect the foregoing plan by eliminating
the jobs of two hand tub operators , transferring them to the
dryers, which were then being operated by Johnson and
Easter , and laying off Easter. Shives corroborated Karle
fully. It was not disputed at the hearing that for seniority
purposes the hand tub and dryerjobs were considered inter-
changeable , and that Easter , as well as Johnson , had less
62 Karle and Shives professed to have no knowledge of any inebriety on
the job on the part of S Williams other than on the occasion for which he
was disciplined
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority than the hand tub operators, Johnson having the
least seniority. Moreover, there was no effective contra-
diction of Karle's testimony that it was Respondent's policy
to honor seniority in case of layoffs, as well as in other
respects.63
Shives testified that, when Johnson came to him on
March 2, and attempted to withdraw his resignation, Shives
told him he had already made arrangements to proceed with
the plan outlined above; and, although Johnson asserted
that Shives told him he could not change his mind because
he had already signed the resignation notice, it was conced-
ed at the hearing that in a pretrial affidavit Johnson ac-
knowledged that Shives had told him that Respondent
planned to eliminate two hand tub jobs. It is clear at any
rate that both Easter and Johnson were laid off on the 5th
and were replaced by the hand tub men, and there was no
evidence that Respondent was aware of any union activity
on the part of Easter. Respondent has not since hired any
new employees to operate the hand tubs or the dryers. Karle
admitted that it was his policy to recall laid-off employees,
and that pursuant thereto he has recalled Easter for work
as a janitor. He explained that he has not recalled Johnson
because he has not been able to find any suitable openings
for him; and that he did not recall him to replace Easter
when the latter quit his janitorial job because Karle thought
the work too strenuous for Johnson, but he would now
employ Johnson as a janitor if a doctor would certify him
as able to do the work.
Although Johnson insisted at the hearing that only a
week before his foregoing "resignation" he had been offered
a job in the weaving room by Supervisor Williamson, the
latter denied this,64 and Karle testified that, although cer-
tain jobs did become available in the weaving room after
March 5, he could not use Johnson thereon because he did
not have a sufficient degree of literacy.65
There seems to be no good reason to doubt that, when,
on March 1, he learned of Johnson's intention to resign and
decided to lay Easter off and not hire any replacement for
Johnson, Karle was merely implementing the retrenchment
program outlined in the January 5 memo. However, since
Johnson's resignation was the event that admittedly trig-
gered that decision, the question arises why Respondent did
not reconsider its action when Johnson changed his mind
about resigning.
When asked about the matter of Johnson's change of
heart, Karle testified:
Well, when after he had resigned and come back the
next day and said he didn't want to resign [we] said that
under the circumstances we had taken action to do this,
we were going to terminate this operation, and he
would be terminated for lack of work anyway at the
end of that week ....
The implication of this seems to be that Respondent
did not regard Johnson's change of heart as sufficient rea-
63 I do not regard as persuasive Johnson's contrary, vague, and confused
testimony about what he thought to be Respondent's seniority policy
64 At any rate, if Williamson did make such an offer in late February, that
circumstances would tend to negate any inference that Respondent was
seeking a pretext to get nd of Johnson because of his identification with the
Union.
65 Johnson conceded that he could not read or write anything but his name.
son for abandoning its retrenchment program. The General
Counsel would have the inference drawn that it was not the
economic benefits of that program, but Johnson's union
activity, which caused Respondent to ignore Johnson's
change of heart. However, as against this, it may be pointed
out that the retrenchment program also involved elimina-
tion of Easter, whose union sentiments were not known to
Respondent, so that the advantage of that program from the
standpoint of reducing the proportion of union adherents
was problematical.
Under all the circumstances, particularly the unchal-
lenged evidence that the foregoing retrenchment program
had been planned before the advent of the Union, and that
it resulted in the elimination of the two hand tub jobs, which
the record shows were no longer economically justifiable,
one would be hard put to say that, but for Johnson's union
activity, Respondent would have foregone the benefits of
such a program. Accordingly, the evidence is not deemed to
preponderate in favor of a violation finding here.
f. C. Quinn 66
He worked for Respondent from August 1970 to
March 10. His name did not appear on the Union's Feb-
ruary 9 wire, and in his case General Counsel relies on an
incident occurring on February 27 as establishing
Respondent's knowledge of his union activity. He testified
that on that date he had a conversation with R. Stewart, in
which Quinn indicated that he might attend a union meet-
ing that night, and that his foreman, Greene, was only a few
feet away at the time. As this was corroborated by R. Stew-
art, I credit such testimony, notwithstanding Greene's dem-
al that he overheard any such conversation. Quinn added
that after the foregoing incident there was a marked change
in Greene's attitude toward him, in that Greene for the first
time became critical of Quinn's work. While acknowledging
such criticism, Greene insisted it was based solely on
Quinn's failure to conform to established job procedures.
The record shows that Quinn was absent from work on
March 10, and that under Respondent's absenteeism policy
he was subject to discharge therefor, as this was his 10th
period of absence or "occurrence"67 within a 12-month peri-
od. He was in fact discharged on March 10 for such ab-
sence. Although conceding that, insofar as here relevant, his
examination of Respondent's personnel records has failed
to reveal any deviation from Respondent's rules respecting
disciplinary action based on the number of "occurrences"
within a 12-month period'68 the General Counsel contends,
66 Hereinafter referred to as Quinn.
67 Under Respondent's rule, an "occurrence" consisted of absence for not
more than 10 consecutive working days.
68 See TX Exh. 1. Although it was stipulated that the foregoing concession
did not apply to the "absence record" of Quinn (and M . Stewart, whose case
is next discussed), this reservation in the case of Quinn apparently had
reference to the fact that, although Respondent's rule prescribed a written
warning notice for Quinn's fifth occurrence, in October 1970, he received at
most only an oral warning . In his brief, the General Counsel makes no
reference to this circumstance and no significance is perceived therein, par-
ticularly in view of the evidence that at that time responsibility for the
administration of the absenteeism policy was temporarily entrusted on a
makeshift basis to a secretary-receptionist. (There was, also, at first some
confusion on the part of Respondent 's witnesses as to whether Quinn was
given a disciplinary layoff on his seventh or his eighth occurrence . However,
this was finally cleared up by Hall.)
TEXTRON, INC. 145
nevertheless, that Quinn was in fact discharged for his
aforenoted manifestation in Greene's presence of an inter-
est in attending a union meeting . The General Counsel cites
as evidence of discriminatory motivation certain alleged
conversations between Quinn and Greene relative to his last
two occurrences. Quinn's version was to the effect that,
when he called Greene to notify him of the reasons for his
absence on those occasions, Greene told him it would be
"okay." Greene admitted at the hearing that he received the
first of these calls, but denied that he implied to Quinn that
his absence would be overlooked. It is clear, in any event,
that Greene had no authority under Respondent's rule to
excuse Quinn's absence and that any such action on his part
would therefore not affect the applicability of the rule's
sanctions.
A more serious question is raised by Quinn's further
testimony that during his exit interview Greene asked if
Quinn was for the Union and, when he answered in the
affirmative, remarked that it was necessary to discharge him
"anyway." Greene's denial of this interrogation was corro-
borated by Hall, who was present. At any rate, even if
Quinn be credited, it would not suffice to establish discrim-
inatory motivation for Quinn's discharge, when weighed
against the cogent evidence in the record that Quinn's dis-
charge was mandatory under Respondent's absenteeism
policy, and that, except as already noted, such policy has
been uniformly and consistently enforced 69
Nor would it change the result if one credited Quinn's
testimony, disputed by Greene and Hall, that at the exit
interview Greene rather equivocally denied that Quinn had
called in to explain his absences. Such testimony, coupled
with the alleged interrogation and the alleged change in
Greene's attitude to Quinn, would prove at most that
Greene was ill-disposed to Quinn because of his union ac-
tivity, but would not suffice to establish that, absent such
activity, Respondent would have waived its rule.
Dismissal of this allegation will be recommended.
g. Roy Stewart
Roy had worked in Respondent's dyehouse since Octo-
ber 1969. His name was on the Union's February 9 wire to
Respondent and his foreman, O. Brown, admittedly knew
that he was active in soliciting for the Union outside the
plant. On March 8 he was involved in an incident with a
fellow employee, Leemaster, who, so far as the record
shows, was not regarded by Respondent as a union adher-
ent.70
There was substantial agreement between Roy and
Leemaster that on March 8 there was an exchange of re-
marks which provoked Leemaster to attack Roy; that the
affray consisted of pushing against each other and a certain
amount of wrestling; and that, in the course of the struggle,
69 Moreover , Greene's alleged remark, after Quinn had admitted his
prounion sentiments , that it was necessary to discharge Quinn "anyway,"
would seem to imply that his union activity was a factor weighing against his
discharge . If Greene did say this, it would tend to negate union animus rather
than the contrary
70 He had , however, signed a union card on February 10, 1971 (G C. Exh
15ww).
Leemaster fell to the ground. Leemaster denied that he
suffered any visible damage. However, since Roy was highly
evasive about the extent of such damage suffered either by
Leemaster or himself, and I do not regard Leemaster as a
wholly disinterested witness," I credit the testimony of
Foreman O. Brown and Personnel Director Jones that when
they interviewed the men they observed skinned knuckles
and arms and Leemaster was bleeding. It is clear, moreover,
that each man insisted to management that he was to blame
for the affray and sought to exonerate the other. Karle
testified that, after receiving reports of the incident, includ-
ing the physical damage suffered by both men, he conclud-
ed that they had been involved in a fist fight in violation of
Respondent's rule against "fighting or horseplay on Com-
pany property," and decided to discharge them for that
reason. They were in fact discharged on March 9.
Karle insisted that the foregoing rule has always been
strictly enforced, citing the discharge of an employee for
horseplay, which caused injury to another employee. While
Respondent's records show no other discharges for fighting
or horseplay, there was no persuasive evidence that Respon-
dent had ever knowingly condoned any violation of the rule
that was as serious as the one under consideration. Leemas-
ters testified that on a prior occasion he had had some words
with S. Wade on the job and been slapped on the face by
him, and that, although Foreman Wilkins interviewed and
ordered the men to desist, no disciplinary action was taken.
Roy claimed to have witnessed that incident and corrobo-
rated Leemaster's version. While admitting that he had
overheard an argument between Leemaster and S. Wade
and had ordered them to "break it up," Wilkins denied that
he saw any physical aggression. As it is not clear either from
Leemaster's version or Roy's where Wilkins was at the time
the alleged slap was delivered, there is no necessary conflict
between their testimony and Wilkins' foregoing denial.
Moreover, I deem it significant that, although the rec-
ord shows that he was a union adherent 72 and might there-
fore be expected to be favorably disposed to the General
Counsel, S. Wade was not called by the General Counsel
and no explanation was given for that omission. It is there-
fore inferred that his testimony would not have aided the
General Counsel. In any case, even if it were found that
Respondent knowingly condoned the amount of physical
contact allegedly involved in the foregoing "slapping" inci-
dent, I do not believe that the disciplinary action taken
against Leemaster and Roy for engaging in a pushing and
wrestling match, which resulted in visible damage to both,
would constitute such disparate treatment as to warrant the
inference that such action was prompted by antiunion con-
siderations.73
7i Not only may it be inferred that his prounion sentiments (see preceding
footnote) would predispose him to favor Roy, but the impression he con-
veyed at the hearing was that he felt personally responsible for Roy's dis-
charge and was anxious to undo the damage he had done him
72 See G.C Exh 15(uuu), which is the union card signed by S Wade on
February 23.
73 Evidence was adduced about an incident involving Johnson and Powell,
which, according to Johnson , himself , merely consisted of his brushing
against Powell in walking by him, and in his brief the General Counsel quite
correctly concedes that it is not clear from the record that any blow was
struck Accordingly , there is no need to dwell on that matter
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
h. C. Ramsey 74
He had been in Respondent's employ since August
1968, working as a fixer in the weaveroom. His name was
on the Union's February 9 telegram. He was admitted to a
hospital on February 26, was released on March 8, and
remained at home until March 15, when he returned to
work. Under Respondent's posted rules governing absen-
teeism,7i if an employee is absent for more than 10 days, his
name is "automatically removed from the payroll." The rule
provides further, as follows:
Should an employee realize his period of absence is
going to exceed the ten (10) day maximum, he may
apply for a leave of absence in order to retain his sen-
iority, providing the applicant is eligible for a leave of
absence.
It is undisputed that Ramsey was absent from work
more than 10 days and that he failed to apply for a leave
of absence. When he returned to work on March 15, he was
notified by Head Foreman Hall that he was being laid off
under the foregoing rule because he had not applied for a
leave of absence. Although he was notified that he retained
his seniority and was eligible for recall to the first available
vacancy, Ramsey has not been rehired.
Hall testified that several days before Ramsey's return
to work, it having been determined that he had been absent
for 11 days, Hall notified Garvin, who, like Ramsey, was a
known union adherent, that he was to replace Ramsey, and
it is not disputed that Garvin promptly began to train for
that assignment. While it is evident that, when Ramsey
returned on the 15th, Garvin was not yet fully trained as a
fixer and that from the standpoint of efficiency of opera-
tions it would have been to Respondent's advantage to re-
hire Ramsey and return Garvin to his former, lower grade
job, Hall insisted that it was Respondent's policy that, once
it has made a commitment to an employee to promote him
as a replacement for an absent employee, it will not renege
on such commitment merely because the absent employee
returns. While one may debate the wisdom of such a policy,
I credit Hall, there being nothing in the record to contradict
his assertion that such was in fact Respondent's policy.
Moreover, absent any competent evidence to the contrary,
I credit the testimony of Karle that since March 15, Respon-
dent has had no openings in Ramsey's line of work, 16 and
the testimony of Hall that Ramsey refused on March 15, to
be considered for any other line of work.
Karle testified that the foregoing 10-day absence rule
is strictly enforced.77 Ramsey contended at the hearing that
Respondent had condoned violations of the rule by White
and Yost, and that, when he pointed this out to Hall on
March 15, Hall answered only that he knew that White
74 Hereinafter referred to as Ramsey.
75 G C Exh. 3
76 Although Ramsey testified his job has been taken was by Charles Cain,
that testimony was patently based on hearsay and an objection thereto on
that ground was sustained.
77 G.G. Exh 11, which is a list of all employees discharged by Respondent
for cause, does not contain the names of any employees terminated for
violating the 10-day rule . However , it also, does not contain Ramsey's name
Karle explained that Respondent does not consider the "clearance" of an
employee from the payroll under the foregoing rule as a discharge for cause,
except under certain circumstances See next footnote
would be out a long time.
However, Karle denied that there was any violation of
the 10-day rule by White, and there was placed in evidence
a leave-of-absence form, purporting to be signed by White,
which signature was authenticated by Karle. In the case of
Yost, Karle admitted that she did not sign a leave-of-ab-
sence form and is still in Respondent's employ. However, he
explained that Yost was in the hospital at the time because
of a difficult pregnancy and that there was danger of a
miscarriage; that, knowing she would be absent from work
for more than 10 days, Yost called the plant and asked for
a leave of absence; that, in view of her condition, Respon-
dent did not require that she actually sign a leave-of-ab-
sence form, but instead filled one out and placed it in her
file without her signature. The implication of this is that
Respondent treated Yost as if she had executed a leave-of-
absence application.
However, it is not clear in what respect Yost was treat-
ed more favorably than Ramsey from the standpoint of job
tenure. While she was in Respondent's employ at the time
of the hearing, and Ramsey was not, it was not explained
how she came to be reemployed; that is, whether she was
taken back upon the expiration of her leave of absence, even
though her job had been filled, or whether, like Ramsey, she
had been required to wait for the first available opening.
Under the literal language of the rule, even when an em-
ployee makes a timely application for leave, all he is entitled
to is retention of seniority, and Ramsey was allowed to
retain his seniority, even though he had not complied with
the rule. However, since it seems implicit, although not
expressed, in Karle's testimony that Yost was treated more
favorably than Ramsey, it is inferred that the 10-day rule
has been applied as follows:
(1) In the case of employees, like Yost, who com-
plied (or were treated as having complied) with the rule,
Respondent construed the provision for retention of
seniority as meaning that they were entitled, upon the -
expiration of their leave, to "bump" any replacement
who had less seniority.
(2) In the case of an employee, like Ramsey, who
had not complied with the rule, but whose absence was
due to ill health, he was allowed to retain his seniority,
except that he would not be allowed to bump any re-
placement, even though junior to him, but would have
to wait for the first available opening.78
The General Counsel contends that there were unusual
circumstances in Ramsey's case, which entitled him to the
same consideration as Yost. Those circumstances allegedly
consisted in the fact that Ramsey was highly regarded as an
employee, being considered for promotion, and that both
his supervisors, Cain and Hall, knew he was in the hospital,
having visited him there. However, there was no evidence
that either Ramsey or his supervisors expected him to be
confined in the hospital for more than 10 days, and he was
78 There remains the situation of the employee who has not complied with
the rule and whose absence was not due to ill health . Karle testified that in
such a case removal from the payroll was equivalent to a discharge for cause
Thus, compliance with the 10-day rule meant retention of full seniority rights,
including bumping of junior replacements, and noncompliance meant either
retention of seniority, but without bumping rights , or discharge for cause,
depending on the reason for absence
TEXTRON, INC.
in fact released before the 10-day period expired 79 Accord-
ingly, there was not here, as in Yost' s case, a foreknowledge
that the employee would not be able to come to the plant
during the 10-day period and sign the proper form. NOT was
there here, as in Yost's case , a timely, oral request by the
employee for leave, which was all that the rule, literally read,
required. As for Ramsey's competence or eligibility for pro-
motion, there was no evidence on that point except for an
offer of proof by the General Counsel. 80 In any event, there
is no evidence that, in enforcing its absenteeism policy,
Respondent made exceptions based on competence or eligi-
bility for promotion.
The record is clear that Respondent had long had an
absenteeism problem, as witness the relatively large number
of discharges for various types of absenteeism,8 and that
Karle was sufficiently concerned about the matter to devel-
op an elaborate set of rules governing that matter. Since
Ramsey, unlike Yost, had made no application for leave,
oral or written, there was no logical basis for treating him
as in substantial compliance. Thus, in his case Respondent
was confronted with a clear choice between enforcement or
waiver of the 10-day rule. Given the seriousness of
Respondent's overall absenteeism problem, it cannot be
said that the choice made in Ramsey's case was so far de-
void of any apparent justification as to compel the inference
that it was motivated by discriminatory considerations.
Accordingly, it will be recommended that the instant
allegation be dismissed.
i. M. Stewart 82
He had worked for Respondent since 1966. His name
was on the Union's February 9 wire. He had attendance
problems, which he ascribed to the invalidism of his parents.
From March 1, 1970, when Respondent's current absentee-
ism rules were adopted, to May 10, when he ceased to work
for Respondent, he accumulated a total of 15 occurrences,
5 of which were canceled, pursuant to the rule, because he
had 5 months of perfect attendance during that period.83 On
March 15, he was given a written warning notice on account
of his absence on March 10, which was his 7th occurrence,
and the notice stated that he would receive a 3-day layoff
79 That period expired either on March 9 or 11, depending, according to
Hall, on whether the intervening Saturdays were workdays Ramsey was
released from the hospital on the 8th
to Since Respondent disclaimed any contention that Ramsey's perfor-
mance on the job was a factor in his discharge, I ruled that evidence of his
competence was not properly part of the General Counsel's prima facie case
but might be offered in rebuttal, if it appeared to be relevant after Respon-
dent had presented its defense The General Counsel then elected to make
an offer of proof on the point, and did not present any rebuttal with respect
to Ramsey
si See G C Exh 11
82 Also referred to in the record as Lacy Stewart
83 Thus, although M Stewart had accumulated five occurrences as of May
13, 1970, all five were subsequently canceled because he later had 5 months
of perfect attendance, and the final count of his occurrences begins with his
absence on May 18, 1970
147
if he was absent again and would be discharged "if he had
a 10th occurrence within a 12-month period." When it gave
the foregoing warning notice , Respondent knew that he had
already accumulated another absence on March 12, he hav-
mg attended on that date a Board hearing on the Union's
representation petition, pursuant to a subpena from the
Union. However, Respondent decided that it would not be
fair to give the warning notice of March 15 retroactive
effect, so to speak, and discipline M. Stewart for the March
12 occurrence, and he was notified that that occurrence
would not be counted against him. His next absence, on
April 28, resulted in the imposition of a 3-day layoff. He was
absent again on May 10, which represented the ninth occur-
rence charged against his record up to that point.84 He
testified that he did not bother to report to work thereafter
because he believed that his May 10 absence represented his
10th chargeable occurrence. He did, however, visit the plant
on May 13 to pick up his last paycheck and had a conversa-
tion with Personnel Director Jones. According to M. Stew-
art, he told Jones that he assumed that he had been
terminated under the absenteeism rule, whereupon Jones
remarked, "Oh, yes." Jones, however , insisted that M. Stew-
art on that occasion stated, in effect, that, while he knew he
had only accumulated nine occurrences , he saw no way of
avoiding a 10th occurrence, in view of the state of his par-
ents' health, and had decided to quit rather than keep "drag-
ging it on." In view of the circumstantiality thereof, I credit
Jones' testimony and find that M. Stewart quit because of
his expectation that he would eventually exceed the number
of absences perimtted by Respondent's policy and would be
discharged on that account.
In view of this finding that M. Stewart was not dis-
charged but quit, it becomes incumbent upon the General
Counsel to establish that such quitting was induced by dis-
criminatory treatment of M. Stewart. In this regard, the
General Counsel contends that the record shows a marked
change in Respondent's attitude toward M. Stewart's absen-
teeism after February 9, when it first learned of his union
activity. Thus, the General Counsel points to the fact that
he was not given a written warning after his initial,85 fifth
occurrence on May 13, 1970. However, the foregoing chro-
nology indicates that even after February 9 the full force of
the rule's sanctions was not applied to him; for, under the
rule he should have been laid off on March 10 when he
again accumulated seven occurrences. Instead Respondent
merely gave him a written warning on March 15 that he
would be laid off, if absent "again," and decided to overlook
entirely the fact that he had already been absent "again" on
March 12, and he was not, in fact, laid off until the next
occurrence on April 28. Thus, while the pattern of discipli-
nary action taken against M. Stewart seems, to say the least,
erratic, the fact remains that, as, in effect, conceded by the
General Counsel, M. Stewart was treated with unusual leni-
ency even after the disclosure of his union activity.86 Wheth-
84 As already noted, 6 of his prior 14 occurrences , including that of March
12 had been canceled under the circumstances described above
is See fn 83 , above, for an explanation of how occurrences were counted
86 See TX Exh I
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er Respondent would have been even more lenient to him
but for his union activity is open to conjecture.87 While it
is true that before the absence of March 10, none of the
various disciplinary actions prescribed by the rule was ap-
plied to M. Stewart, the decision to begin to do so on March
15, albeit on a modified basis, may have been prompted by
the steadily mounting number of his absences and the desire
to preserve some-semblance of uniformity in the administra-
tion of the absenteeism policy. At any rate, the fact that
Respondent, for whatever reason, decided in March to ap-
ply to M. Stewart the same rule that it was concededly
uniformly applying to its other employees,88 would not seem
to constitute such an onerous change in his working condi-
tions as would warrant converting his resignation into a
constructive, discriminatory discharge. Accordingly, no vio-
lation is found here.
j. Ruth Huffstetler
She worked nearly 8 years for Respondent as an in-
spector . Her name was on the Union's February 9 wire. She
concededly was well regarded as an inspector until the early
part of 1971. Some time in 1970, Respondent placed its
inspectors under a new incentive system . Thereunder, in-
spectors were required after a 6 -week grace period to reduce
to at least 2.5 the percentage of defective tape approved by
them , as determined by a random sampling of their tape. At
the time the incentive system was installed , the inspectors
were warned of discharge , if over a specified 2-week period
their average margin of error was more than 2.5 percent.89
It is clear that Ruth failed to meet the 2.5 percent standard
during 7 of the last 8 weeks of her employment , beginning
with the week ending May 9;90 that on May 31, she was
given a written warning to the effect that, if she did not
maintain a 2.5 percent average during the next 2 weeks, she
would be subject to discharge ; that, although she failed to
maintain such an average dunng the next 2 weeks , she was
given another 2-week trial; that during the next 2 weeks her
percentage of defects was 10 .3 and 3.9, respectively; and
that she was terminated on June 25 . While the record shows
no other discharge of inspectors for unsatisfactory work, it
is clear from the evidence that Ruth 's overall performance
during her last 4 months was inferior to that of any of the
other inspectors ,91 and there is nothing in the record to
87 In support of his contention that there was a change in Respondent's
attitude to M Stewart after February 9, the General Counsel adduced testi-
mony by M Stewart that about February 9, Respondent made some unfavor-
able changes in his working conditions However, under cross-examination,
he professed to be unable to recall whether this happened before or after
February 9, and Jones testified that the changes were made before that date
Under these circumstances , Jones is credited
M. Stewart testified, also, that, when he was given the 3-day layoff (on
April 28), Supervisor Jackson told him he would have to "start abiding" by
the rules like everyone else. Jackson disputed this The fact is that Respon-
dent had even before that date taken disciplinary action against him in the
form of the warning issued on March 15 In view of this, as well as the fact
that M Stewart gave a somewhat different version of Jackson 's remark in a
pretrial affidavit , he is not credited here.
"See TX Exh I.
89 See Resp . Exh. 26
90 See Resp Exh. 27.
91 See Resp . Exh. 27.
contradict Hall's testimony that no other inspector has been
treated more leniently than Ruth. It is also clear that em-
ployees (other than inspectors) have been discharged for
failure to meet production standards 92
Ruth testified that during her discharge interview with
Supervisor Hall, when she asked him what he thought
caused her rate of defects, he answered, "I think it was
because your nerves were bad, and you have been involved
in that other stuff." Hall's version was that he told her that
he thought her high defect rate was related to her nerv-
ousness and to a fixation she had about Respondent dis-
charging all union adherents.93 On the basis of demeanor,
I credit Hall.
Here, as in the case of some of the other alleged discri-
minatees discussed above, the General Counsel's theory
seems to be that, although it had good cause for discharge,
Respondent would not have availed itself thereof but for the
employee's union activity, and would instead have tolerated
the employee's shortcomings because of various compensat-
ing factors. In Ruth's case the compensating factor would
seem to be the fact that she had been an inspector for nearly
8 years, and it might well be thought that she received rather
cavalier treatment for an employee of such longstanding.
However, there was no evidence that, in enforcing plant
rules or job performance standards, Respondent treated
other longtime employees with more consideration that
Ruth; and, for the Board to pass on how much weight an
employer should give to an employee's length of service
before discharging him for justifiable cause would involve
intruding into an area of judgment reserved to management.
In Ruth's case, it is clear that even after she failed to meet
the standard set in the June 2 discharge warning, she was
given another 2-week trial period. It would seem beyond the
Board's province to say that, because of her long service, the
Act required more than this to negate an inference of dis-
crimination.
Dismissal of the instant allegation will be recom-
mended.
k. The statistical argument
The General Counsel contends that it is a suspicious
circumstance that, there was a sharp rise in the number of
employees discharged in 1971 after the advent of the Union
as compared with the number discharged during the preced-
ing calendar year. While it is true that during 1970 there was
a total of only five discharges, whereas in 1971 there were,
according to General Counsel's Exhibit 11, nine dis-
charges 9 dunng February and March alone, the signifi-
92 See G.C. Exh 11.
93 Ruth admittedly had accused Respondent early in June of seeking a
pretext to discharge her for union activity. She acknowledged , also, that on
June 6, her physician told her she was suffering from a nervous condition.
In any case , even if Hall be deemed to have ascribed her substandard perfor-
mance as an inspector , at least in part, to her involvement with the Union,
that would not constitute an admission that such involvement was a factor
in her discharge , except insofar as it affected her work.
94 This exhibit omits R Stewart, who was admittedly discharged on March
8, and should therefore be counted as a 10th discharge . C. Ramsey and R.
Johnson are not listed in the exhibit presumably because they were consid-
ered as having been laid off, and M Stewart was treated as a quit, as was
Durbin, whose case was struck at the hearing.
TEXTRON, INC.
cance of the comparison is diminished by the fact that 1970
was not a representative year in this respect. This is evident
from the fact that General Counsel's Exhibit 11 lists a total
of 151 discharges over an 8-year period, of which 19 oc-
curred in 1971 5 and 5 in 1970, leaving a balance of 127 over
the preceding 6-year period. This averages out to 21 per year
for that period. Accordingly, it cannot be said that there was
a disproportionate number of discharges after the advent of
the Union.
Moreover, of the 16 employees admittedly discharged
after February 3, when Respondent first learned of the
Union's advent, only 7 were shown to have been union
adherents, which is not a disproportionate number when
one considers that union cards were signed by a clear major-
ity of the employees.
3. The 8(a)(5) issues
a. Appropriate unit
It is found that the unit appropriate for bargaining is
as follows:
All production and maintenance employees at
Respondent 's York, South Carolina, plant , including
laboratory technicians and plant clericals , but exclud-
ing all office clerical employees , professional employ-
ees, guards and supervisors as defined in the Act 96
b. The Union's majority status
(1) The election result
The election held on April 22 resulted in,a vote of 59
to 53 against the Union, with 14 ballots being challenged.
The Regional Director sustained 1 of these challenges, over-
ruled another,97 and referred to the instant proceeding the
remaining 12 challenged ballots, of which 10 were cast by
employees alleged to have been discriminatorily dis-
charged.98 Of these 10, only 2 , Burgess and Shillinglaw, have
been found herein to have been unlawfully discharged, and
the challenges to their ballots are therefore overruled. How-
ever, as the maximum number of overruled challenges
would not be sufficient to affect the outcome of the elec-
tion, 99 it will not be recommended that any of the chal-
lenged ballots be opened and counted.
It follows that the Union did not receive a majority of
the votes cast in the election.
95 This number is arrived at by adding Roy Stewart to those listed in G.C.
Exh. l1 for 1971. See preceding footnote.
96 This was admittedly the unit found appropriate by the Board in the
election held herein
97 The challenge to Easter's ballot.
98 Of the remaining two challenged voters, only one, Henson, testified at
the hearing.
99 The Union needs at least seven more votes . Even if one adds to the
ballots of Burgess and Shilhnglaw those of Easter and Henson , they would
not suffice to overcome that deficit . Accordingly, there is no need to consider
Henson 's eligibility.
(2) The interference with the election
149
The Union filed timely objections to the election, citing
inter alia, many of the instances of interrogation found
above, Williamson's remark to Simpson that, as found
above, created an impression of surveillance and his admo-
nition to her to stay away from the Union, and the speeches
of April 20, which have been found coercive. In view of
these findings, it will be recommended that the election be
set aside.100
The General Counsel urges that, if the election is set
aside, Respondent be ordered to bargain "under established
principles as a result of the unfair labor practices having
deprived the Charging Party of its majority ," citing
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575.
It is current Board law that, even though a union has
lost an election, it may secure a bargaining order by showing
that (1) the election was invalid, (2) it requested bargaining
at a time that it had valid authorization cards from a majori-
ty of the unit, and (3) such an order is appropriate under
Gissel. On February 15, when the Union requested recogni-
tion, there were 116 unit employees on Respondent's pay-
roll, of whom 66 had already signed concededly valid union
authorization cards. The union thus had a clear card majon-
ty on February 15. As already related, on February 18,
Respondent rejected the Union's request for recognition,
expressing doubt that it represented a majority of the em-
ployees, and suggesting that the matter be resolved by an
election upon the petition already filed by the Union.
The issue is thus posed whether under Gissel it would
be appropriate to issue a bargaining order or whether the
Board should merely direct a new election. It has been
found that Respondent engaged, inter alia, in extensive in-
terrogation, that it discharged for union activity Burgess
and Shillinglaw, who was generally regarded as one of the
two instigators of the union movement among the employ-
ees, that Respondent told employees that Burgess was dis-
charged for union activity, and that Karle's speech of April
20 was calculated to impress upon the employees the futility
of collective bargaining and, if it had to deal with a union,
Respondent would engage in bargaining tactics that might
well result in reduction of existing benefits. It is found that
such unfair labor practices are so serious as to render it
unlikely that traditional remedies will insure the holding of
a fair election and reliance on the Union's cards and is-
suance of a bargaining order is therefore appropriate.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions 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
100 The discharges of Burgess and Shillinglaw were not included in the
Union's objections to the election , presumably because they occurred before
the filing of the representation petition, and were therefore time-barred for
that purpose.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
It having been found that Respondent engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, it will be recommended that it be
directed to cease and desist therefrom and, upon request,
bargain collectively with the Union as the exclusive repre-
sentative of all employees in the unit set forth above and,
if an understanding is reached, embody it in a signed agree-
ment.
It having been further found that Respondent violated
Section 8(a)(1) and (3) of the Act, it will be recommended
that it be required to cease and desist therefrom and take
appropriate, affirmative action. Such action shall include a
proper offer of reinstatement to Burgess and Shillinglaw
and their reimbursement for any loss of earnings suffered
by reason of the discrimination against them. Backpay shall
be computed in accordance with the formula stated in F. W.
Woolworth Company, 90 NLRB 289; interest shall be added
to backpay at the rate of 6 percent per annum. (Isis Plumb-
ing & Heating Co., 138 NLRB 716.)
In view of the nature of the violations found herein,
particularly the acts of discrimination, a threat of future
violations exists , which warrants a broad cease-and-desist
order.
from scratch in the context of remarks that Respondent
would deal less liberally with the employees through a union
than it would without a union, that employees had nothing
to gain by collective bargaining, and that such bargaining
often resulted in a reduction of existing benefits, Respon-
dent created an impression of the futility of collective bar-
gaining and employee union activities and implied that
because of such activities and bargaining the employees
might well suffer impairment of existing benefits, thereby
violating Section 8(a)(1) of the Act.
7. By coercively interrogating employees about their
union sentiments or activities, by warning employees that
they would forfeit all rights to employment if they struck
and were permanently replaced, by creating the impression
of surveillance of employee union activity, by directing an
employee to shun union representatives, and by stating that
employees had been discharged for union activity, Respon-
dent has violated Section 8(a)(1) of the Act.
8. By discharging Burgess and Shillinglaw because of
their protected, union activities, Respondent has violated
Section 8(a)(3) and (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, there is issued the following recommended:101
ORDER
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
All production and maintenance employees at
Respondent's York, South Carolina, plant including
laboratory technicians and plant clericals, but exclud-
ing office clerical employees, professional employees,
guards and supervisors as defined in the Act.
4. At all times since February 15, the Union has been
the exclusive representative of the employees in the afore-
said unit for the purpose of collective bargaining with re-
spect to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
5. By refusing on and after February 15 to bargain with
the Union as the exclusive representative of the employees
in the said appropriate unit, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By stating that collective bargaining would start
Textron , Inc., Providence , Rhode Island , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating its employees about their
union activities, and warning of discharge for union activi-
ty.
(b) Conveying to employees the impression that collec-
tive bargaining would be futile and that such bargaining
might well result in loss of existing benefits. -
(c) Ordering employees to avoid any contact with un-
ion representatives.
(d) Warning employees of forfeiture of all reemploy-
ment rights if they struck and were permanently replaced.
(e) Creating the impression of surveillance of employee
union activities.
(f) Refusing to recognize and bargain with said Union
as the exclusive representative of its employees in the fol-
lowing unit:
101 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the find-
ings , conclusions , recommendations , and recommended Order herein shall,
as provided in Section 102 48 of the Rules and Regulations, be adopted by
the Board and become its findings, conclusions, and order, and all objections
thereto shall be deemed waived for all purposes
TEXTRON, INC. 151
All production and maintenance employees of Respon-
dent at its York, South Carolina, location, including
laboratory technicians and plant clericals, but exclud-
Ing professional employees, office clerical employees,
guards and supervisors as defined in the Act.
(g) Discouraging membership in International Ladies'
Garment Workers' Union, AFL-CIO, or any other labor
organization, by discharging employees or otherwise dis-
criminating in regard to their hire, or any term or condition
of employment.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain with the above-named Un-
ion as the exclusive representative of the employees in the
unit defined above with respect to wages, hours, and other
terms and conditions of employment and, if an agreement
is reached, embody it in a signed contract.
(b) Offer Grace Shillinglaw and Arthur Burgess rein-
statement to their former positions or, if such positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges.
(c) In the manner prescribed in the "Remedy" section
of the Trial Examiner's Decision, make whole the foregoing
employees for any loss of earnings suffered as a result of the
discrimination against them.
(d) Immediately notify any of the foregoing employees,
who is presently serving in the Armed Forces of the United
States, of his right to reinstatement, upon application, in
accordance with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after dis-
charge from the Armed Forces.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amounts of backpay due under the terms of this
Order.
(f) Post at Respondent's York, South Carolina, plant,
copies of the attached notice hereto marked "Appen-
dix A."102 Copies of said notice, on forms to be provided by
the Regional Director for Region 11, shall, after being duly
signed by Respondent's representative, be posted by it im-
mediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that such notices are not altered, de-
faced, or covered by any other material.
102 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
(g) Notify the Regional Director for Region 11, in writ-
ing, within 20 days from the date of receipt of this Order,
what steps Respondent has taken to comply herewith.103
IT IS ORDERED that all allegations of the complaint which
have not been sustained be dismissed.
IT IS FURTHER ORDERED that the election in Case I I-
RC-3274 is set aside and that proceeding is hereby vacated.
103 In the event that this recommended Order is adopted by the Board,
after exceptions are filed , this provision shall be modified to read . "Notify
the Regional Director for Region 11, in writing , within 20 days from the date
of this Order, what steps Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self organization
To form, loin or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other aid
or protection; and
To refrain from any or all these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT discharge employees or otherwise dis-
criminate against them because of their interest in or
protected activities on behalf of International Ladies'
Garment Workers' Union, AFL-CIO, or any other un-
ion.
WE WILL NOT try to impress upon you the futility of
bargaining with us through a union or threaten that if
we have to bargain with a union, we will engage in
bargaining tactics that may result in your losing some
of your present benefits or that you will lose your reem-
ployment rights if you strike and yourjobs are filled by
permanent replacements.
WE WILL NOT threaten to discharge employees for
union activity.
WE WILL NOT ask you how you feel about a union
or warn you to stay away from union representatives
or give the impression that we are keeping a watch on
employee union activities.
WE WILL bargain, upon request, with International
Ladies' Garment Workers' Union, AFL-CIO, as the
exclusive representative of the employees in the unit
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described below with respect of wages, hours, and all
other terms and conditions of employment, and, if an
agreement is reached, embody it in a signed contract.
The unit is:
All production and maintenance employees at our
York, South Carolina, plant, including laboratory
technicians and plant clericals, but excluding office
clerical employees, professional employees, guards
and supervisors as defined in the Act.
WE WILL offer to reinstate Grace Shillinglaw and
Arthur Burgess to their old jobs or, if such jobs no long.-
Or exist, to substantially equivalent jobs, and WE WILL
make them whole for any earnings lost by them as a
result of their discharge on February 8, 1971.
All our employees are free to belong or not to belong
to International Ladies' Garment Workers' Union, AFL-
CIO.
TEXTRON, INC
(Employer)
Dated By
(Representative) (Title)
Route 5
APPENDIX B
to
Textron
plant
A
321
bypass
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
1624 Wachovia Building, 301 North Main Street, Winston-
Salem , North Carolina 27101, Telephone 919-723-9211,
Extension 360.
W
D, to
downtown York