The Kendall Co.

National Labor Relations Board - Board Decisions

Oct 9, 1970

185 N.L.R.B. 947 (N.L.R.B. 1970)

THE KENDALL COMPANY 947
The Kendall Company and Textile Workers Union
of America , AFL-CIO, CLC. Case 10-CA-8119
October 9, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 5, 1970, Trial Examiner James V. Constan-
tine issued his Decision in the above-entitled proceed-
ing, finding that Respondent, The Kendall Company,
had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that Respondent had not engaged
in certain other alleged unfair labor practices. There-
after, Respondent filed exceptions to the Trial Examin-
er's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Act, 29 U.S C 160(b) It was generated by a charge filed
on January 15, and an amended charge on February 9,
1970, by Textile Workers Union of America, AFL-CIO,
CLC, herein called Textile Workers or the Union. Said
charges name The Kendall Company as the Respondent.
Thereafter, on February 16, 1970, the General Counsel
of the National Labor Relations Board, herein called the
Board, through the Regional Director of Region 10 (Atlanta,
Georgia), issued a complaint against said Respondent. In
substance said complaint, which is based on the above
charges, alleges that Respondent has violated Section 8(a)(1),
(3), and (4) and that such conduct affects commerce within
the meaning of Section 2(6) and (7), of the Act Respondent
has answered. As orally amended at the hearing, said
answer admits some facts but denies that Respondent
engaged in any unfair labor practices
Pursuant to due notice this case came on to be heard
and was tried before me, on April 1, 1970, at Guntersville,
Alabama All parties were represented at and participated
in the hearing, and had full opportunity to adduce evidence,
examine and cross-examine witnesses, file briefs, and present
oral argument. A brief has been received from the General
Counsel The General Counsel's "Motion to Correct
Record" is hereby granted absent opposition thereto.
This case presents these issues
Whether Respondent
1 Discharged employee J. L Lacy because of his activities
on behalf of Textile Workers.
2 Interrogated its employees regarding their union mem-
bership, activities, and desires.
3 Threatened its employees with discharge if they joined
or engaged in activities on behalf of Textile Workers.
4. Issued a written warning to employee Allen Templeton
because he engaged in activities on behalf of the Union
and gave testimony under the Act in Case 10-RC-7937,
involving Respondent and the Textile Workers. (Case 10-
RC-7937 has since been decided by the Board, 181 NLRB
No. 177.)
Upon the entire record in this case, and from my observa-
tion of the witnesses, I make the following:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that Respondent, The Kendall Company, Albertville,
Alabama, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
IT IS FURTHER ORDERED that those portions of
the complaint as to which no violations have been
found are hereby dismissed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is an
unfair labor practice case instituted under Section 10(b)
of the National Labor Relations Act, herein called the
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a Massachusetts corporation, is engaged at
Albertville, Alabama, in manufacturing and selling textile
products. During the year 1969 it sold and shipped finished
products valued in excess of $50,000 directly to customers
located outside the State of Alabama. I find that Respondent
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate the
purposes of the Act to assert jurisdiction over Respondent
in this proceeding.
II THE LABOR ORGANIZATION INVOLVED
Textile Workers is a labor organization within the mean-
ing of Section 2(5) of the Act. See The Kendall Company,
181 NLRB No. 177
185 NLRB No. 137
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. General Counsel 's Evidence
1 The discharge of J. L. Lacy
About December 10, 1969 , Supervisor Keener threatened
to "write up" Lacy for "a bag laying in the floor ." Thereupon
Keener wrote up Lacy because "they're not being greased
and doped properly and [Lacy is] not following [Lacy's]
schedule properly ." This was the first writeup he had
received on a bearing . Keener asserted to Lacy that Lacy
caused the bearing to burn because Lacy had not properly
greased it . But Lacy denied this accusation to Keener
In the past Lacy had a bearing burn out, dunng the
performance of his greasing job, but , although told to
"watch them closer , try to keep them doped more properly,"
he had not been written up therefor.
The next day , December 11, Keener directed Lacy to
perform some sweeping jobs and then return to his regular
job of oiling and greasing . Lacy so swept for 3 hours
and 15 minutes before resuming his regular job. This caused
Lacy to get behind in his regular duties of oiling and
greasing.
In the sprang of 1969 Lacy was off work to be on
jury duty for 2 days . During this period no one to his
knowledge substituted for him on his tour of work at
the plant. In late December of the same year Keener
told Lacy that the latter was not cleaning enough reedcaps
and that Lacy 's schedule required him to clean 26 a day.
Lacy promised to clean that many but insisted to Keener
this would prevent Lacy from performing all the oiling
and greasing required by his schedule . Thereafter Lacy
cleaned 26 reedcaps a day . This took up 2 hours of his
daily worktime , and prevented him from keeping up with
his regular work . Prior to this Lacy had been daily cleaning
10 to 12 reedcaps without getting behind on his oiling
and greasing schedule
On January 9, 1969 , Keener spoke to Lacy in the presence
of Strawn . When Keener accused Lacy of "not running
your job," Lacy disagreed . Continuing , Keener added that
"we're going to have to put somebody on it that will
run it . . . [so we ] have to let you go." Although Lacy
insisted that he adequately performed his work, Keener
remained adamant that Lacy was then and there being
discharged . Thereupon Strawn claimed that Lacy had been
"off the job two hours that day ," but Lacy denied this.
In fact , Lacy had at no prior time been criticized "about
being off the job."
Immediately after being terminated Lacy called on Plant
Manager McClure, asking , without success , that he be
retained on the job.
At no time prior to his discharge was Lacy warned
to improve his job performance or expose himself to the
risk of being terminated . Yet from December 1, 1969,
until he was discharged , Lacy was not able to keep up
with all the duties assigned to him . This is becase (a)
he was often pulled off his regular job to perform sweeping
which required 2 or 3 hours of his time twice a week,
and (b) he was given the additional responsibility of "doing"
26 reedcaps a day.
On the day he was discharged Lacy was informed that
he had not been doing his work and that he was "away
from" his work.
M. E. Templeton testified for the General Counsel on the
foregoing issue. A summary of his testimony follows.
J L Lacy in substance testified as follows He was hired
by Respondent on December 31, 1959, as a space hand
on the third shift . Four months later he became an oiler
and greaser on the first shift , working under Supervisor
P. J. Strawn . There are two oilers on the first shift, one
of whom is Lacy. At no time prior to about July 1969,
was he given any written warnings complaining about his
work . In 1968, for the first time, he was ordered by Strawn
to follow a formal schedule which resembled "a Sears
Roebuck catalog." In going over said schedule with Lacy,
Strawn observed that "Nobody can follow this " but asked
Lacy to do the best he could on the job. Prior to the
advent of the Union Lacy "had [three] different [work]
schedules," but they were changed "so many times you
can't keep up with it." And Supervisor Keener had "not
too many times" during this period told Lacy that the latter
was not keeping up with his work schedule.
About the first of September 1969, Lacy signed a union
card and passed out union handbills often . He also attended
union meetings ; and, in addition , solicited employees to
join the Union , succeeding in inducing about five to sign
union cards. In addition , he wore a union button and
T-shirt in the plant.
Along about December 1, 1969, Supervisor Keener "men-
tioned about the reedcap cleaning to" Lacy. About this
time Lacy , in the course of his greasing duties, observed
that a loom was flagged . Noticing that the loom's bobbin
had fallen to the floor because , in his opinion , said bobbin
had a "rough place on it ," Lacy scraped off said rough
place and reset the bobbin into the shuttle . Yet Lacy
does not fix looms or "pretend " to do so. Nevertheless
the operator of the loom asked him to get away from
there and not to meddle with the machine. At this point
Supervisor Keener arrived on the scene and asked Lacy
"what happened to the loom?" Lacy then narrated what
had happened . Thereupon Keener brought Lacy to Supervi-
sor Strawn 's office.
While in Strawn 's office Lacy repeated what he had
told Keener about the bobbin incident. Both Strawn and
Keener then replied that each believed Lacy was telling
the truth , but Strawn added that Lacy started up the
loom "just for devilment ." Lacy denied any "devilment "
After some additional conversation, Strawn accused Lacy
of "standing around talking too much on the job." Lacy
replied that "since the Union started , nothing had gone
right in the weave room "; that two weavers then standing
outside the office door "stand around and talks more than
anybody in the weaving room ; and if everybody did as
much as they did , you'd have to close the weave shop
down." On cross, Lacy admitted he "stood around talking."
Finally , Lacy mentioned that he was for the Union, only
to be told by Strawn that "this gossiping had to be stopped."
At one point in this conversation Lacy accused both Keener
and Strawn of "being like hell ever since you've been
here" in order to get Lacy.
THE KENDALL COMPANY
Templeton is a tie-end operator in the weaver rooom
on Respondent's first shift. His job made it possible for
him to observe employee J. L. Lacy perform the latter's
duties. Lacy would "take his breaks," but kept up with
his work. In fact Lacy "would oil three looms to everybody
else's two that been on since [Lacy] was discharged." Tem-
pleton further testified that Lacy did some sweeping and
missed work only to serve on jury duty. Respondent's
counsel at this point asserted that Lacy's "attendance has
nothing to do with the case whatever . . . [and] his
attendance was good."
Templeton observed that Lacy fell behind on his job
of oiling and greasing looms just before Lacy was discharged.
This resulted because he was assigned other work to do
in addition, as noted below. Lacy's schedule required him
to oil and grease about 254 looms in an "entire cycle
every five days." He did not do so, of course, on the
"three or four shifts" while serving on jury duty; and
apparently no one else attended to this aspect of maintaining
the looms during such period. However, about the first
of December 1969, Lacy was given the additional duty
of cleaning 26 reedcaps or handrails "on top of his other
oiling work; and his sweeping duties also increased at
the same time. Although Lacy cleaned some handrails
before this, it was not as many as 26 daily.
2. Interference, restraint, and coercion
Marvin J. Maness , employed as a slasher tender by
Respondent , in substance gave the following testimony on
this branch of the case . About the first of September
1969, he spoke to Jerry Strawn , an admitted supervisor
under Section 2(11) of the Act. After asking Maness if
Maness had heard "about that Mill at Guntersville going
union," and receiving an affirmative reply , Strawn asked
if Maness "had heard any comments ." Continuing , Strawn
inquired of Maness if anyone had approached Maness "about
a union at our plant." Upon receiving a negative reply,
Strawn concluded by commenting , "I guess you pretty
well know how you stand ." Finally , Strawn said that "Ken-
dall Company didn't want a union."
About September 5 or 6 , 1969, employee Marvin J.
Maness overheard part of a conversation between Allen
Templeton and Supervisor Keener , during which Keener
mentioned "something about garnisheeing somebody." At
this point Maness entered the conversation and insisted
that Keener could "fire nobody for getting garnisheed no
more" because of a recently enacted statute . To this Keener
responded that if he "wanted to get shut of any man"
he could "always find an excuse."
Allen Templeton is one of Respondent's slasher tenders
on the first shift . The substance of his testimony relating
to said issue follows . About September 6, 1969 , Supervisor
Keener, in referring to employee Waldrup , who had recently
been fired, mentioned that Waldrup was now "in town
trying to get the Textile Workers cards signed ." Continuing
Keener mentioned, "We'll get rid of all you boys that
are for this union."
At this point employee Maness joined the two as the
conversation turned to discharging employees whose wages
were garnished . When Maness objected that discharges
949
for such purpose were no longer permissible, Keener replied
that he "could always get up something to fire a man
for.,,
About the first week of December 1969, Keener told
Allen Templeton that he, Keener, had worked under the
Union for 23 years, but that it was no good. In this
conversation Keener also told Allen that if the latter did
not like the way he was being treated he could take it
up with the National Labor Relations Board.
3. The warning to Allen Templeton
It is admitted that Allen signed a union card, passed
out union leaflets, and wore a union button in the plant.
Allen's testimony on the above issue follows. He also
attended several union meetings, talked to employees in
the plant on behalf of the Union, and solicited employees
to sign union cards. In addition, he attended the representa-
tion hearing in l0-RC-7937 on September 30, 1969. Howev-
er, when he requested permission of Supervisor Strawn
on September 29 to go to said hearing, Strawn referred him
to Supervisor Keener. But when Allen asked Keener, the
latter refused such leave. Nevertheless, the next day Allen's
"overseer" granted such authorization to Allen after the
latter informed him that Allen had been subpenaed to
testify at such hearing.
On January 9, 1970, Allen received a writeup or warning
for not keeping his slasher clean. Up to this time he
had never been required to clean it except when company
officials from other plants visited this plant. However, a
day or two before January 9, 1970, Tucker, another employ-
ee, told Allen that Plan Manager McClure "was having
a fit about the moisture controls getting dirty." Thereafter,
Allen voluntarily maintained his moisture control "just
as clean as [he] possibly could" to avoid being "written
up . . . Seemed like they started writing people up that
was for the union."
Then on January 9, 1970, Supervisor Keener at about
11 a.m. told Allen that employee Maness' slasher was
too dirty. Allen replied that he had just cleaned his own
four times that morning but it was just as dirty as that
of Maness. Not long after this Maness told Allen that
Keener wanted to see Allen in the office. Upon arriving
at the office, Allen was told by Keener that Allen would
be "written up" for operating a dirty slasher. When Allen
protested that Maness was not being so treated, Keener
replied that the slasher of Maness was "not as dirty as"
Allen's. About 5 minutes later Keener directed Allen to
clean the moisture control at each warp.
On January 9 Maness was running cotton on his slasher
whereas Allen was processing Kodel and Avril. Kodel
produces lint on the moisture control faster than cotton
does, i.e., in about 3 to 5 minutes, but it is only a "film"
then. Such film becomes thick in time. When Keener wrote
up Allen because the latter's slasher was too dirty Allen
had cleaned it about 25 minutes before. However, at no
time previously had Respondent instructed Allen how often
to clean his moisture control or even to maintain his
moisture control in a clean condition.
Further, until this time Allen had not been provided
with a schedule to follow as to when to clean his moisture
{
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
control. Allen's practice over a period of about 10 years
had been to clean his slasher "when the set ran out,"
i.e., when each warp was completed, because other employ-
ees did so; but no company supervisor had told him to
do this.
Following the writeup Allen followed "instructions to
keep [his] moisture control cleaned once each warp," but
nothing was said to him by the company to clean it more
frequently. But by cleaning it this infrequently the buildup
of lint increased twice or three times as much as before.
Yet the Company said nothing to him about this.
On cross-examination Allen testified that he never kept
his slasher "as clean as the company wanted it . . . I
believe you can clean it up a little bit more myself."
Employee Marvin J. Maness testified in substance as
recited in this and the ensuing paragraphs. On January
9, 1967, R. E. Keener, admitted supervisor under Section
2(11) of the Act, told him to instruct Allen Templeton
to go to the office. Keener added that he intended to
writeup Allen "for the moisture control being dirty." Maness
gave this message to Allen.
Later that day Keener repeated to Maness what he
had told Maness a day or two before to the effect that
the moisture control would have to be kept clean. Prior
to this Keener had never "specified" anything concerning
the moisture control. However, prior to January 9, Allen
did clean his moisture controls about once a day. And
Maness observed Allen clean off Allen's moisture control
on said January 9.
Maness further testified that the amount of moisture
depends on the kind of cloth being manufactured; that
frequency of cleaning the moisture control is determined
by the nature of the cloth being processed; and that on
the morning of said January 9 he observed Allen Templeton
perform such cleaning three or four times. Allen's control
became dirty with lint every 2 or 3 minutes, according
to Maness.
Maness further testified that before January 10, 1970,
he never had received a written schedule of work to follow,
but that on that day Supervisor Keener presented him
with such a written schedule to follow thereafter.
One of Respondent's loom fixers is O. F. Waldrup.
A conspectus of his testimony follows. Approximately 87
or 88 persons are employed in the weave and slasher
room on three shifts. Before the Union commenced organiz-
ing the plant "a few" of said employees, i.e., 8 to 10,
had been discharged in 14 or 15 years.
B. Respondent's Evidence
E. T. McClure is Respondent 's plant manager. In essence
he testified as follows. Among other policies which he
enforces at said plant, "good housekeeping" or cleanliness
is one of them. A handrail (also known as a reedcap)
on looms must be kept clean because it "readily and easily
... collects lint," which in turn "can easily fall off into
the fabric and affect the quality quite easily." Such effect
on the cloth's quality may be manifested by preventing
proper dyeing, or in breaking threads, or in a number
of other ways.
Further, McClure has insisted that the "general level
of cleanliness" in the slasher room, particularly as to the
moisture controls therein, be kept up. This insistence was
conveyed by McClure to P. J. Strawn, the overseer or
supervisor of that department. McClure also instructed
all supervisors to see to it that the plant and its machinery
were kept clean.
Since January 7, 1965, a written lubrication schedule
has been in effect for the oiler job performed by employee
J. L. Lacy. And the oiler employee is "supposed to" have
a copy of that schedule. Also, such oiler employee is
"supposed to complete that cycle every five days." This
period of 5 days was determined by adjusting the manufac-
turer's recommendation to tests made by Respondent's engi-
neers and then arriving at a time cycle, i.e., "the job
has been engineered." Such engineering tests allow the
oiler 1 hour out of 8 in a day for "leisure time," so
that he can easily maintain his schedule by working 7
hours a day. This 1 hour of leisure time includes lunchtime
and "normal breaks."
About October 30, 1969, a supervisor reported to McClure
that J. L. Lacy "attempted or was beginning to start up
a loom unauthorized." But an oiler, as Lacy was at the
time, is not permitted to start up a loom which has been
flagged for repairs. Once a loom has been flagged the
"only one authorized to start it up [is] the loom fixer,"
because only he is qualified "to diagnose and fix the trouble."
If the loom is started up by anyone other than the fixer,
damage could arise to both the cloth and the loom.
A writeup on Lacy "was made on" the foregoing incident.
(See Resp. Exh. 1.) However, no "reprimand system" was
then or is now in existence "which leads to a discharge
of an employee after so many reprimands." Discharge is
"based on judgment in each instance."
On another occasion following the above incident,
McClure received a report from "supervisors" that Lacy
"had been neglecting his oiling and greasing, and had
one bearing burn up in particular." Said bearing, which
was produced for inspection at the hearing of this case,
was "badly worn out . . . from lack of lubrication." A
new bearing to replace it costs about $15. It should not
have burned out if it had been properly greased. On Decem-
ber 10, 1969, Lacy was "written up" for this. (See Resp.
Exh. 2.)
Towards the close of December, 1969, it came to
McClure's attention "that there was a problem about Lacy
in keeping his reedcaps clean" on looms. At that time
Lacy was scheduled to oil and grease the reedcaps on
26 looms daily. Lacy was written up for "not cleaning
reedcaps." (See Resp. Exh. 3.) In said writeup, Lacy is
reported as commenting that keeping 26 looms clean daily
would cause him to neglect some of his other doping
and oiling work. As a result of this information, i.e., that
Lacy had not time to attend to his usual oiling and greasing,
McClure directed supervisors in the weave room to observe
whether Lacy stayed on the job. At the end of December
such supervisors reported to McClure that Lacy "was not
staying on the job, that he was off the job an unreasonable
amount of time." As a result McClure told them to keep
a record of Lacy's time "away from the job." They complied.
(See Resp. Exh. 8.)
THE KENDALL COMPANY 951
Finally, on January 9, 1970, Lacy was recommended
for discharge by said supervisors for not keeping up with
his oiling and greasing obligations . Immediately thereafter
Lacy called on McClure to retain his job, but without
success During this conversation Lacy mentioned that his
supervisors were liars However , McClure testified that
Lacy was not discharged until the next day, January 10.
Another person who testified for Respondent is R. E
Keener , its assistant overseer or assistant supervisor of
its weaving and slashing department Keener denies that
he told Allen Templeton or any other employee that "we'll
get rid of all you boys ." However , he admits he inquired
of said Templeton whether the latter "was in the union
or had been approached by a union ," but only when Temple-
ton "started the subject."
C. Concluding Findings and Discussion
1. As to the discharge of J. L Lacy
It is my opinion , and I find, that Lacy was discharged
because of his membership in, and activities on behalf
of, the Union, and that the reasons assigned for terminating
his employment are pretexts to disguise the real reason.
This ultimate finding is based on the entire record and
the following subsidiary findings , which I hereby find as
facts.
Preliminarily , I rule that the burden of proof rests upon
the General Counsel to prove his case by a fair preponder-
ance of the evidence , and that no onus rests on Respondent
to disprove any of the allegations of the complaint. Rubin
Bros. Footwear v. N.L.R.B., 203 F.2d 486, 488 (C.A. 5).
In this connection , I find that the General Counsel has
met this burden And of course I recognize, and rule,
that membership in, or activities on behalf of, a labor
organization , or both , do not immunize or shield an employ-
ee from discharge for cause . Metals Engineering Co., 148
NLRB 88, 90 ; Mitchell Transport, Inc., 152 NLRB 122,
123, enfd. 358 F.2d 281 (C A. 7).
a "Direct evidence of a purpose to discriminate is rarely
obtained , especially as employers acquire some sophistication
about the rights of their employees under the Act; but
such purpose may be established by circumstantial evi-
dence." Corrie Corporation v. N.L.R.B., 375 F.2d 149, 152
(C.A. 4). Accord Hartsell Mills v. N.L.R.B., 111 F.2d
291, 293 (C.A. 4); N.L.R.B. v. Melrose Processing Co.,
351 F.2d 693, 698 (C.A. 8). "Nowadays it is usually a
case of more subtlety . . ." N.L.R.B. v. Neuhoff Bros.,
375 F.2d 372, 374 (C A 5). Therefore it is not unusual
for an employer to point to an employee's real or doubtful
shortcomings in defending or justifying a discharge motivat-
ed by antiunion considerations . Consequently it is imperative
to scrutinize the record to ascertain the actual reason
prompting an employee's dismissal . Radio Officers Union
v. NL.R.B., 347 U.S. 17, 50. I have done so.
b. Respondent had knowledge of Lacy's union member-
ship and extensive activity on behalf of the Union. Counsel
for Respondent admitted at the hearing that Respondent
was aware of Lacy 's union activity and handbilling. And
Plant Manager McClure testified credibly that he knew
Lacy was in the Union and that he observed Lacy on
several occasions handing out union literature at the plant
gate.
c Respondent entertained union animus, as found below
in this Decision . It is elementary , and I rule as a matter
of law, that antiunion hostility in itself does not constitute
an unfair labor practice. For an employer may lawfully
dislike and oppose unions and may constitutionally utter
or otherwise express antiunion sentiments . N.L.R.B. v.
Threads, Inc., 308 F.2d 1, 8 (C.A. 4); N.L.R.B. v. Howard
Quarries, 362 F.2d 236 (C A. 8), J P. Stevens & Co.,
181 NLRB No. 97. Nevertheless such animus is a factor
which may be appraised or evaluated in arriving at the
true reason inspiring a discharge . N.L R.B. v. Georgia Rug
Mill, 308 F 2d 89, 91 (C.A. 5); Maphis Chapman Corp.
v. N.L.R.B., 368 F.2d 298, 304 (C.A 4).
d. Lacy was very active in the union movement and
thus became a target for dismissal upon being detected
in any dereliction of duty, no matter how trivial , although
such dereliction would not ordinarily result in his discharge.
Further, he was an experienced employee with a long
service record. Dismissal of active union adherents , especial-
ly if they are experienced employees , is a factor which
I have considered in ascertaining the true reason behind
Lacy's discharge . It is true that "management can discharge
for good cause, or bad cause, or no cause at all without
incurring liability under the Act." N.L.R.B. v. McGahey,
233 F.2d 406, 413 (C.A 5). In fact , if an employee is
discharged for neglect or delinquency , there is no violation
simply because he was engaged in organizing and the
employer sheds no tears at his loss. N.L.R.B. v Birmingham
Publishing Co., 262 F.2d 2, 9 (C.A. 5). But "obviously
the discharge of a leading union advocate is a most effective
method of undermining a union organizational effort."
N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003,
1006 (C A. 5).
e. It is true that cause existed for Lacy's discharge,
and I so find. But I find that at no time prior to January
9, 1970, was he discharged therefor . In fact , Respondent's
own evidence discloses that Respondent decided , after three
occasions when Lacy failed in the performance of his duties,
to keep him under observation , without his knowledge
thereof, in order to discover or unearth an excuse for
discharging him. But no new excuse was necessary in
view of his prior inattention to duty . (If material , I credit
Respondent 's evidence concerning Lacy's prior neglect of
duty.) This strongly suggests, and I find , that Respondent
was building up a case against a strong union advocate,
and that antiunion motives led to such decision . "Certainly
union activity or membership confers no immunity against
discharge . . . but if the discharge was because of union
activity it violates 8(a)(3) . . even though a valid ground
for dismissal might exist ." N.L.R.B. v. Longhorn Transfer
Service, Inc., 346 F.2d 1003, 1006 (C.A. 5). I find that
Lacy's discharge originated in substantial part because of
his union membership and union activity.
f. Lacy was not effectively warned that he exposed himself
to discharge by his inefficiency. While it is true that a
writeup was executed for each of his faulty acts (see Resp.
Exhs. 1, 2, and 3), at no time was Lacy informed that
such writeups constituted serious warnings or that he risked
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge by his conduct. Although said exhibits contain
a recommendation, I find that at no time was it communicat-
ed to Lacy. And I further find that Lacy was not even
informed that writeups exposed him to discipline regarding
the acts there specified. However, I find that Lacy's neglect
of duty was discussed with him on each occasion.
Hence I find that, for all practical purposes, Lacy was
condoned for his past conduct and was not admonished
that it exposed him to discharge. Under such circumstances
failure to warn is significant, especially when no specific
system of discipline has been adopted to guide employees
Talon, Inc., 170 NLRB No. 42, fn. 1; Dunchck, Inc.,
159 NLRB 10, 11 fn 1. Courts have also upheld this
conclusion. E. Anthony Sons, Inc. v. N. L. R. B., 163 F 2d
22, 26-27 (C.A.D.C.); N.L.R.B. v. Melrose Co., 351 F.2d
693, 699 (C.A. 8). I find that Respondent had no such
system of discipline.
g Respondent also committed other unfair labor practices,
as found herein. While this is not an overriding factor-
in fact I have given it minor weight-it nevertheless may
not be disregarded in ascertaining the actual reason for
dismissing Lacy.
h Although of relatively insignificant weight, I have
taken into consideration the abruptness and timing of Lacy's
discharge. Thus I find that Lacy was summarily discharged
during the Union's organizational campaign. He was not
only abruptly discharged, but Respondent was so anxious
to accomplish this that its witnesses were indefinite as
to whether this was accomplished on January 9 or 10,
1970. And this occurred while the Union was organizing the
plant.
I recognize that it is possible that it is coincidental
that such discharge was effected at that particular time.
But discharging an employee at a time which parallels
a union's campaign, for conduct which took place an appre-
ciable time before, has probative value. Arkansas-Louisiana
Gas Company, 142 NLRB 1083, 1085-86. This takes on
added significance if the discharged employee has been
actively engaged in espousing unionism. "The abruptness
of a discharge and its timing are persuasive evidence as
to motivation." N. L. R. B. v. Montgomery Ward & Co.,
Inc., 247 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S.
829; N.L.R.B. v. Hawthorn Company, 404 F.2d 1205, 1210
(C. A. 8); N. L. R. B. v. L. E. Farrell Co., 360 F.2d 205,
208 (C.A. 2).
i. Finally, I find that it is not necessary that union
activity be the only reason responsible for Lacy's discharge.
"If the discharge is because of union activity it is a violation
of the Act even though a valid ground for dismissal might
exist." N. L. R. B. v. Longhorn Transfer Service, Inc., 346
F 2d 1003, 1006 (C A. 5). Accord Betts Baking Co. v.
N.L.R.B., 380 F.2d 199 (C.A. 10). It is sufficient in finding
Lacy's discharge to be discriminatory that his union activity
is a motivating or substantial ground for so terminating
him. N.L.R.B. v. Symons Mfg. Co., 328 F.2d 835, 837
(C. A. 7), N. L. R. B. v. Lexington Chair Co., 361 F.2d 283,
295 (C.A. 6); N.L.R.B. v. Whitin Machine Works, 204
F.2d 883, 885 (C.A. 1). And I find that union activity
was a substantial-but not necessarily the only-reason
for Lacy's discharge. Cf. N.L.R.B. v. Park Edge Sheridan
Meats, 341 F.2d 725, 728 (C.A. 2).
2. As to interference , restraint , and coercion
Upon this segment of the case I credit the General
Counsel's witnesses; and, to the extent that the testimony
of Respondent's witnesses is not consonant therewith, I
do not credit them These credibility determinations are
based principally upon my observation of the demeanor
of the witnesses on the stand, but I have also been influenced
in minor part by the fact that Respondent's witnesses
entertained union hostility.
As recited above, Supervisor Strawn spoke to employee
Maness about the first of September, 1969. I am persuaded,
and I find, that, except for that part of the conversation
narrated in the next paragraph, Strawn's questions are
not coercive and, therefore, do not contravene Section 8(a)(1)
of the Act. More specifically, I find nothing which offends
the Act in Strawn's inquiring of Maness whether Maness
had heard about "that Mill" in nearby Guntersville "going
union" and whether Maness "heard any comments" about
its "going union ." Nor does Strawn's statement that Kendall
Company did not want a union constitute an unfair labor
practice. N.L.R.B. v Threads, Inc., 308 F.2d 1, 8 (C.A.
4); N. L. R. B. v. Howard Quarries, 362 F.2d 236 (C.A.
8); J. P. Stevens & Co., Inc., 181 NLRB No. 97. However,
I find that it demonstrates union animus.
Nevertheless I find that Strawn's asking Maness if anyone
had approached Maness about a union at Respondent's
plant is coercive because it constitutes questioning which
pried into union matters and exceeded the necessities of
any legitimate purpose. Johnnie's Poultry Co., 146 NLRB
770, 775, enforcement denied 344 F.2d 617 (C.A. 8). See
NL.R.B. v. Universal Cigar Corporation, 425 F.2d 867(C.A.
5).
About September 5 or 6, 1969, Supervisor Keener spoke
to employee Allen Templeton about the subject of garnish-
ment, in which conversation employee Maness also partici-
pated. At one point in this talk Keener stated he could
always find an excuse "to fire a man for." It is not reasonable
to infer that Keener meant he could find pretexts for
discriminating against employees engaged in union activities.
I find no element of coercion in Keener's utterances, except
as narrated in the following paragraph. Accordingly, I
shall recommend that this aspect of the complaint be dis-
missed to this extent.
But in the foregoing talk Keener also told Allen Temple-
ton, in referring to another employee's (Waldrup) efforts
to sign up employees for the Union, "We'll get rid of
you boys that are for this union ." I find that this amounts
to a threat of reprisals for union membership, sympathy,
or activity, and, therefore, is embraced by Section 8(a)(1)
of the Act as proscribed coercive conduct. Cf. N.L.R.B.
v. Alco Mining Company, Inc., 425 F.2d 1128 (C.A. 5).
About the first week of December 1969, Supervisor Keen-
er expressed a strong dislike of unions to employee Allen
Templeton, told Templeton that they were no good during
the 23 years that Keener worked under the Union, and
dared Templeton to present a grievance to the NLRB
if the latter did not like the way he was being treated
While I find that this attitude of Keener demonstrates
pronounced union hostility, I nevertheless find that it con-
tains no constituent or component of coercion. Accordingly,
THE KENDALL COMPANY
I shall recommend that this division of the complaint
be dismissed.
3. As to the warning to Allen Templeton
Upon perusing the record and observing the demeanor
of the witnesses on this issue, I am convinced, and find,
that the General Counsel has failed to establish that Temple-
ton was discriminatorily given a write-up or warning for
failing to maintain his slasher in a clean condition. This
means that I have in part credited some of Respondent's
witnesses. But a trier of facts may credit a witness in
part and not credit the same witnesses as to other parts
of his testimony.
It is not seriously contended that Templeton's slasher
needed cleaning when he was written up on January 9,
1970. I find that it did require such cleaning. But the
General Counsel insists that such condition of Templeton's
slasher was seized upon as a pretext to punish him for
union activity and for testifying in a representation hearing
held by the Board in Case 10-RC-7937.
But I find no pretext. Further, I find that the actual
reason for Templeton's writeup is the unsatisfactory condi-
tion of his slasher. It is true, and I find, that he engaged
in extensive union activity and testified in said representation
hearing. And I find that Respondent was cognizant of
such union activity and the giving of such testimony. But
this, without more, is insufficient to carry the onus of
showing that Templeton's writeup was influenced by dis-
criminatory motives. For engaging in union activity and
testifying in Board cases are not guarantees against, nor
confer immunity from, being disciplined for cause N.L.R.B.
v. McGahey, 233 F 2d 406, 413 (CA. 5), N.L.R.B. v.
Birmingham Publishing Co., 262 F.2d 2, 9 (C.A 5); Metals
Engineering Corp., 148 NLRB 88, 90, Mitchell Transport,
Inc., 152 NLRB 122, 123, set aside 426 F.2d 812 358
F.2d 281 (C.A. 7). A different result is not dictated by
N. L. R. B. v. Texas Industries, Inc., (C A 5).
Further, I find that whether the slashers shall be kept
clean, the manner thereof, and the frequency thereof, is
a management prerogative or business judgment which the
Board may not revise in this proceeding N.L.R.B. v Ogle
Protective Service, 375 F 2d 497, 505 (C.A. 6); N.L.R.B.
v. United Parcel Service, 317 F 2d 912, 914 (C.A 1);
Thurston Motor Lines, Inc., 149 NLRB 1368. As succinctly
put by the court of Appeals for the Fifth Circuit, "Manage-
ment is for management. Neither Board nor Court can
second-guess it or give it gentle guidance by over-the-
shoulder supervision " NL.R.B. v McGahey, 233 F.2d 406,
413. Only when such business judgment is inspired by
motives proscribed by the Act can it be questioned in
this proceeding
Hence I find that Respondent's decision to keep the
slashers clean, even though this may not have been the
case in the past (except when out-of-town company officials
visited the plant) is a business judgment which can not
be questioned in this proceeding. Such change in practice,
when applied indiscriminately and universally to all employ-
ees (and I find that it was so applied) cannot be said
to be so unreasonable as to constitute a cloak to cover
up a means of reprisals against a single employee who
953
had engaged in activities protected by the Act Admittedly
the change in practice applied to all slasher operating
employees and was not confined to Templeton
Nor can I find that the past practice had become so
fixed that it could not be further modified. Patently an
employee has no vested interest in a particular method
in which his employer operates the business; certainly the
employer may alter such method without incurring the
wrath of the Act Whether such modification is warranted
when a collective-bargaining contract may affect its applica-
tion is not presented as an issue here.
Since I find that Respondent's business judgment in
requiring its slashers to be kept clean was not a pretext
to mask reprisals against protected activities, I find that
this portion of the complaint has not been proved Accord-
ingly, I shall recommend its dismissal.
IV. THE EFFECT OF THE UNFAIR LABOR
Those activities of Respondent set forth in section III,
above, occurring in connection with its operations described
in section I, above, have a close, intimate , and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
V THE REMEDY
As Respondent has been found to have engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and that it take specific affirmative
action, as set forth below, designed to effectuate the policies
of the Act
In view of the finding that Respondent discriminated
against J. L. Lacy in discharging him, it will be recommend-
ed that Respondent be ordered to offer him immediate
and full resinstatement to his former position or, if such
is not available, one which is substantially equivalent thereto,
without prejudice to his seniority and other rights and
privileges It will further be recommended that Lacy be
made whole for any loss of earnings suffered by reason
of the discrimination against him.
In making Lacy whole Respondent shall pay to him
a sum of money equal to that which he would have earned
as wages from the date of his layoff to the date of reinstate-
ment or a proper offer of reinstatement, as the case may
be, less his net earnings during such period Such backpay,
if any, is to be computed on a quarterly basis in the
manner established by F. W Woolworth Company, 90 NLRB
289, with interest thereon at 6 percent calculated by the
formula set forth in Isis Plumbing & Heating Co., 138
NLRB 716. It will also be recommended that Respondent
preserve and make available to the Board or its agents,
upon reasonable request, all pertinent records and data
necessary to aid in analyzing and determining whatever
backpay may be due. Finally, it will be recommended
that Respondent post appropriate notices.
The conduct of Respondent in my opinion does not
portray a general opposition to the Act. Consequently,
I find that an order is appropriate which is limited to
enjoining the activities found to be unfair labor practices
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and similar or like acts. Since the remedy adopted should
be commensurate with the infractions of the Act found
herein, relief more extensive in scope is not warranted
Upon the basis of the foregoing findings of fact and
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Textile Workers is a labor organization within the
meaning of Section 2(5) of the Act
2 Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
3 By discriminating in regard to the tenure of employment
of J L. Lacy, thereby discouraging membership in Textile
Workers, a labor organization, Respondent has engaged
in an unfair labor practice condemned by Section 8(a)(3)
and (1) of the Act.
4. By engaging in the conduct set forth in this paragraph,
Respondent has committed unfair labor practices proscribed
by Section 8(a)(1) of the Act:
(a) Asking an employee if anyone had approached him
about a union at Respondent's plant.
(b) Telling an employee that Respondent would get rid
of employees who are for the Textile Workers.
5 The foregoing unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
6. Respondent has not committed any other unfair labor
practices alleged in the complaint
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law, and upon the entire record in this case,
I recommend that the Board issue an order requiring that
Respondent, its officers, agents, successors, and assigns,
shall-
1. Cease and desist from:
(a) Discouraging membership in Textile Workers, or any
other labor organization, by discharging employees or other-
wise discriminating in any manner in respect to their tenure
of employment or any term or condition of employment.
(b) Asking employees if anyone had approached them
about a union at Respondent's plant or coercively interrogat-
ing them regarding their union membership, desires, and
activities
(c) Telling employees that it will get rid of employees
who are for a union or threatening other reprisals for
union membership, desires, and activities.
(d) In any like or similar manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Offer J. L. Lacy immediate and full reinstatement
to his former job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed
by him, and make him whole for any loss of pay he
may have suffered, with interest at the rate of 6 percent,
by reason of Respondent's discrimination against him, as
provided in the section above entitled "The Remedy."
(b) Notify J L. Lacy if 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 discharge from the Armed Forces.
(c) Preserve and, upon reasonable request, make available
to the Board or its agents, for examination and copying,
all payroll records and reports and all other records neces-
sary to ascertain the amount, if any, of backpay due under
the terms of this Recommended Order.
(d) Post at its plant at Albertville, Alabama, copies
of the attached notice marked "Appendix."' Copies of
said notice, to be furnished by the Regional Director for
Region 10, after being signed by a duly authorized represent-
ative of Respondent, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily displayed.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 10, in writing,
within 20 days from the receipt of this Decision, what
steps Respondent has taken to comply herewith.'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein.
' In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings, conclusions, recommendations, and Recommended Order
herein shall , as provided in Sec 102 48 of said 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
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 "
' In the event this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that
WE WILL NOT discourage membership in Textile
Workers Union of America, AFL-CIO, CLC, or any
other labor organization, by discharging employees
or otherwise discriminating in any manner in respect
to their tenure of employment or any term or condition
of employment.
WE WILL NOT ask employees if anyone has
approached them about a union at our plant, or about
their union membership, desires, and activities.
THE KENDALL COMPANY
WE WILL NOT tell employees that we will get rid
of employees who are for a union , or threaten reprisals
for union membership , desires, or activities.
WE WILL NOT in any like or similar manner interfere
with , restrain , or coerce employees in the exercise
of rights guaranteed to them by Section 7 of the
National Labor Relations Act.
WE WILL offer J L. Lacy immediate and full
reinstatement to his former job, or if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights or
privileges previously enjoyed by him, and will pay
him backpay for any loss of pay he may have suffered
as a result of his discharge by us, with interest thereon
at 6 percent
WE WILL notify J. L. Lacy if presently serving
in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Mili-
tary Training and Service Act, as amended, after dis-
charge from the Armed Forces.
955
All our employees are free to become, remain , or refuse
to become or remain , members of said Textile Workers
Union of America, AFL-CIO, CLC, or any other labor
organization.
Dated By
THE KENDALL COMPANY
(Employer)
(Representative)
(Title)
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, Peach-
tree Building, Room 701, 730 Peachtree Street, Atlanta,
Georgia 30308, Telephone 404-526-5760.