The Timken Co.

National Labor Relations Board - Board Decisions

Sep 25, 1974

213 N.L.R.B. 486 (N.L.R.B. 1974)

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Timken Company and United Steelworkers of
America, AFL-CIO. Cases 11-CA-5267 and 1I-
CA-5277
September 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 29, 1973, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 I and the at-
tached Decision in light of Respondent's exceptions
and brief and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge, only insofar as they are consistent herewith.
We agree with the Administrative Law Judge's con-
clusions that Respondent violated Section 8(a)(1) of
the Act by promulgating and enforcing a no-solicita-
tion and no-distribution rule restricting union solicita-
tion during nonworking time and distribution of
union literature during nonworking time and in non-
working areas.' by preventing employees from distrib-
uting union literature at the plant gate on March 20,
1973, by physically interfering with an employee's re-
ceipt of such literature at that time, and by interrogat-
ing employee Peggy Harris as to her union sympathies
and threatening her with reprisals if the Union came
in.
The Administrative Law Judge also concluded that
Respondent violated Section 8(a)(1) by interrogating
John Nicholson and Wallace Tate and by issuing
'Respondent has requested oral argument As the record , including
Respondent's exceptions , adequately presents the issues and Respondent's
position, the request for oral argument is hereby denied.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to overrule
an Administrative Law Judge' s resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd 188 F 2d 362 (C A 3, 1951). We have carefully examined the
record and find no basis for reversing his findings Further , we note that,
contrary to Respondent 's contention , the record reveals no evidence of any
bias against it in the Administrative Law Judge's findings
3 The Administrative Law Judge concluded that Respondent 's no-solicita-
tion and no-distribution rule violated Sec 8 (a)(1) insofar as it prohibited the
"distribution of union literature on company property by employees during
their nonworking time," without referring to the additional limitation enunci-
ated in our decision in Stoddard-Quirk Manufacturing Co, 138 NLRB 615
(1962), that such distribution might also be restricted to nonworking areas
We have modified his conclusion accordingly.
warnings to Lloyd Patterson, and violated Section
8(a)(1) and (3) by discharging Nicholson, Bard Pitt-
man, and Joe Stephen Guyton. Respondent excepted
to those conclusions. We find merit in its exceptions.
1. The Administrative Law Judge concluded that
on March 20, 1973, Supervisor William Vassey coer-
cively interrogated employee Wallace Tate concern-
ing the union activities at the plant in violation of
Section 8(a)(1) of the Act. Respondent contends that
the record as a whole does not support that conclu-
sion. We agree.
On direct examination, employee Tate testified that
Supervisor Vassey had simply approached him on
March 20 and asked him how he felt about the Union.
On cross-examination, he testified in substance that
(1) Vassey had just walked up, asked how he felt about
the Union, and walked away; (2) Vassey had walked
up, said "there's been a rumor about a Union being
established here," asked Tate how he felt about it,
Tate had asked whether his response would jeopar-
dize his job, and Vassey had said no; (3) Vassey had
come up, asked Tate how he felt about the Union,
Tate had asked him whether his answer would jeopar-
dize his job, Vassey had said no, and then began
telling him the disadvantages of the Union; and (4)
Vassey had come up and asked him whether he was
for the Union.
Upon further cross-examination, Tate gave a much
more detailed and substantially different version of
his conversation with Vassey. According to the later
version, he and Vassey had been discussing his re-
quest for a shift change prior to any mention of the
Union. When that discussion ended, Vassey men-
tioned that Tate had probably heard rumors about a
union trying to get into the Gaffney plant, and Tate
answered that he had heard such rumors.4 Vassey then
stated that the Union could only make promises, that
the promises were not in writing, and that the plant's
pay and benefits were the best in the area. Tate re-
sponded that he was making more than he had ever
made and was always trying to better himself. Vassey
replied that everyone should try and better them-
selves, and then asked whether Tate knew that, if a
union got in and a strike occurred, he would be ex-
pected by the union not to work and support the
strike. Tate answered that he didn't know that, no-
body was going to tell him whether he could or could
not work. Vassey then said that Tate did not have to
belong to a union to work at the plant, and that he was
doing a good job and should keep up the good work.
At this point, an employee named Steve Gibson
walked up and Vassey left.
Tate at first denied telling Vassey he had heard the rumors, but, when
confronted with his affidavit to the contrary, Tate admitted that the state-
ment in the affidavit was true.
213 NLRB No. 68
THE TIMKEN COMPANY 487
Tate admitted that the latter account of his conver-
sation with Vassey was "all that was said" and "cov-
ered every statement between [him] and Vassey," and
that the conversation "happened exactly like that."
Supervisor Vassey also testified as to his conversa-
tion with Tate, and his recollection of it closely corres-
ponded with Tate's latter account of it. Since Vassey
strongly denied having asked Tate how he felt about
the Union, and Tate's ultimate, most detailed, and, in
our opinion, most accurate account of the conversa-
tion supports Vassey's denial, we find that the Gener-
al Counsel failed to sustain his burden of proof that
such an interrogation occurred.' We therefore shall
dismiss the complaint allegation as to this incident.
2. Respondent discharged John Nicholson, a
maintenance mechanic, on March 28, 1973.
The Administrative Law Judge found that Nichol-
son had been unlawfully interrogated on March 9
when Supervisor Bryant laughingly asked him how
the Union was going. Nicholson answered, "Dead,"
and laughed. The Administrative Law Judge ascribed
to Bryant's jocular query the serious purpose of "fer-
reting out information about how the Union was
doing in its attempt to organize the plant." Had
Bryant truly wanted information, he hardly need have
resorted to bantering with Nicholson to get it. Both
before and after this incident, Nicholson had volun-
tarily offered to serve as the Company's informant
against the Union. For example, on March 11 and 12,
he called his cousin, Plant Personnel Manager J. B.
Greene, and volunteered information as to the name
and address of the plant employee at whose home the
next union meeting would be held. Respondent's re-
peated rejections of Nicholson's offer to serve as an
informant is further indication that there was no seri-
ous purpose behind Bryant's March 9 questioning of
him. We therefore find that Bryant's jocular question
did not violate Section 8(a)(1).,
The discharge notice given to Nicholson stated that
he was being discharged for "repeated violations of
company rules and practices" and for "use of profane
language concerning management." 6
3 Member Jenkins suggests that in so finding we are "apparently ignoring
the Administrative Law Judge 's credibility finding." We disagree, since it is
not clear what , if any, credibility finding the Administrative Law Judge
made . He simply excerpted one of Tate 's several versions of his conversation
with Vassey without so much as mentioning the existence of contrary ver-
sions He then made the insupportable conclusion that Vassey's testimony
was "essentially confirmatory" of Tate 's, without mentioning the fact that
Vassey had denied asking Tate how he felt about the Union or that Vassey's
account of his conversation with Tate was "essentially confirmatory" only
of Tate's ultimate version of the conversation in which Tate did not say that
Vassey had asked him how he felt about the Union Finally, the Administra-
tive Law Judge concluded only that Vassey had interrogated Tate "concern-
ing union activities at the plant ," when neither Tate nor Vassey had said
Vassey inquired about that subject.
6 The last portion of the discharge notice had reference to an instance
occurring March 27 in which Nicholson , in talking with Keith Haygood, a
The record is replete with proof that on numerous
occasions preceding his discharge Nicholson had vio-
lated company rules, sought pretexts for getting away
from his work station so that he could engage in in-
plant organizing, and was insubordinate to his super-
visors. The Administrative Law Judge's opinion fully
sets forth these incidents, which need only be summa-
rized here. On March 9 he was an hour late in report-
ing back to his work area from his lunchbreak, and
had to be found and ushered back by his supervisor,
Edward Ricker. On March 14 Ricker sent him to get
a blueprint from the "green room" and told him
where to find it there, but he assertedly could not find
it and so went elsewhere to get parts he needed. Later,
Virgil Bryant, a departmental supervisor, found him
away from his work area, learned he had been unable
to find the print, and took him and showed him that
it was exactly where he had been told it would be. On
March 16, as a result of the March 9 and 14 incidents,
Nicholson was warned for failing to stay in his as-
signed work area and failing to follow the orders and
instructions of a supervisor, and told that further of-
fenses could result in his discharge. After this warn-
ing, Nicholson was seen on a number of occasions
wandering through the plant far from his work area.'
He also had to be instructed several times by Bryant
to wear safety glasses as plant regulations required.
On the day of his discharge, Nicholson was twice
directly insubordinate to his supervisor, Park Sarratt,
who was substituting for Ricker. This happened as
follows: Bryant had given him permission to get cer-
tain parts from the receiving area, far from his work
station. Sarratt then came up and, learning that Ni-
cholson needed the parts, informed Nicholson that
Sarratt would get the parts and that Nicholson should
return to his work area. Bryant, who was present at
the time, said nothing, obviously indicating that he
considered his permission superseded by Sarratt's
specific instructions to Nicholson. Nevertheless, Ni-
cholson went to get the parts, which were in the ship-
ping area of the plant far from where he worked.
Sarratt met him as he was returning from the shipping
area, told him that he was not supposed to be where
he was, and instructed him to return to his work sta-
tion. Instead of going there, Nicholson determined to
confirm that Bryant had given him permission to get
the parts. He therefore went to an office in the plant
and called Bryant, who was leaving the plant, at the
guard station near the parking lot. Bryant admitted he
coworker , about the Union, said ". : the S .O.B: s in the office don't like
me because f am the S 0 B organizing this union ." The Administrative Law
Judge 's finding that these remarks played no part in Nicholson 's discharge
was not excepted to.
7 This conclusion is based on the uncontradicted testimony of Weldon
Phillips, a union supporter , that during the last week and a half of
Nicholson's employment he saw Nicholson come through his work area,
which was far from Nicholson 's, two or three times a day
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had given Nicholson permission to get the parts, but
restated the obvious fact that Sarratt was Nicholson's
supervisor and that Nicholson should have done as
Sarratt instructed. Nicholson was fired that same
morning.
We find that the discharge was motivated by
Nicholson's insubordination on March 28, especially
in view of his history of repeated instances of miscon-
duct and refusal to follow instructions. While Respon-
dent certainly had knowledge of his union activities,
that fact does not insulate an employee from dis-
charge for just cause. Unlike the Administrative Law
Judge, we conclude that Nicholson's discharge was
not discriminatorily motivated.
3. Bard Pittman was an "A Operator" and an in-
structor of trainee operators of automatic grinding
machines on the 11 p.m. to 7 a.m. shift in
Respondent's cone-grinding department. During the
shift beginning Friday, March 23, he told his supervi-
sor, Glen White, that he intended to "back the union"
as much as possible, and asked White to convey this
information to Bob Irvin, the night-shift superinten-
dent.On Monday morning, March 25, Irvin told John
Heggestadt, the plant manager, who had just returned
from vacation, about Pittman's conversation with
White. Irvin also told Heggestadt that there had been
problems with Pittman giving insufficient attention to
his trainees. Heggestadt instructed him to tell White
to direct Pittman to stay on his job, and that if he did
not he would be discharged. During the Monday
night shift, White clearly instructed Pittman to stay
with the trainees on line 3 8 in the cone-grinding de-
partment. He also gave Pittman additional responsi-
bilities, but what they were precisely is not controlling
here?
On Tuesday morning, the trainees on line 3 com-
plained to Leeford Blanton, Respondent's primary
instructor of trainees, that they were not getting any
help from Pittman.10 Earlier that morning Sandra Gil-
fillan, a product inspector who had worked on line 3
during the Monday night shift, had also complained
to Bob Irvin that during the Monday night shift Pitt-
man had referred to her being a "smart-ass" or as one
who would "show her ass" if the Union came in,
and had threatened her that, if she did not sign an
8 There are five or six lines of automatic grinding machines in the cone-
grinding department, an area of the plant about 300 feet long and 150 feet
wide
9 Pittman 's testimony was somewhat vague regarding what lines White
assigned him to However, he stated unequivocally on direct examination
that he had seven or eight trainees, that the trainees worked on two lines, that
one of the trainees, Bobby Guyton, worked on line 3, and that other trainees
whose names he could not recall worked on line 3 . Thus, it is clear he was
responsible for line 3
The Administrative Law Judge found that Pittman had failed to assist
only one of the trainees , J B Valentine, and had done so only in one
instance.
authorization card, he and others would "make it so
god damn hard on her she will wish to hell she had
signed the union card." The Administrative Law
Judge found that Pittman, in fact, had not threatened
her, nor had he used profanity, but instead had merely
sounded her out as to her feelings about the Union."
The trainees' and Gilfillan's complaints were
promptly relayed to Heggestadt, who decided to dis-
charge Pittman. Heggestadt called White to his office
the same day, at what time is unclear, told him he was
to discharge Pittman, and instructed him to fill out a
"Record of disciplinary action" form stating that
Pittman's discharge was for "Threatening fellow em-
ployees-vulgar language-neglect of work." White
filled out the form as directed. Shortly before the
Tuesday night shift began, White called Pittman, said,
"Boy, I'm going to have to discharge you for threaten-
ing fellow employees, and that's all I'm going to tell
you," and, either then or within a few days, gave him
the discharge form.
The Administrative Law Judge concluded that
Respondent's discharge of Pittman violated Section
8(a)(3) of the Act and " . . . was part of Respondent's
plan to root out all well known union activists at its
Gaffney plant under elaborate pretexts in line with its
publicized policy against having any unions at that
plant." We disagree, as we find no evidence that Re-
spondent was embarked on any such widespread plan
of discriminatory discharges and, specifically with re-
gard to Pittman, we find that the General Counsel has
not met his burden of proof of establishing that the
discharge was discriminatorily motivated.12
While Respondent knew of the prounion sympa-
thies of Pittman and other-employees, we have found
no other discharges to be violations of Section 8(a)(3)
of the Act. Thus, there is no basis for concluding on
this record that such a discriminatory discharge
"plan" existed. Nor do we find support for a finding
that Respondent singled out Pittman for discharge
because of his union activities. This is especially so
Pittman testified that all that he had said to Gilfillan during the conver.
sation she complained about was "Hello, Sandra , how do you feel about the
Union" and that her sole reply was "Oh , I can't sign a card That would hurt
my husband 'sjob." Gilfillan testified that Pittman had made the remarks set
forth above Both Pittman 's and Gilfillan 's version of the conversation was
uncorroborated . The Administrative Law Judge discredited Gilfillan , relying
primarily on the fact that she had given the impression of being a witness
overly eager to help Respondent , her employer , to establish a justification for
Pittman's discharge . Respondent did not explicitly except to this credibility
resolution . In any event, we have carefully examined the record and find no
basis for reversing it
12 We have made four findings of independent 8(a)(I) violations in these
cases . Two of these pertain to one conversation with one employee in a unit
of about 535 employees During that conversation , an employee was interro-
gated and threatened with the loss of the privilege of being excused from
Saturday work The other two findings involve Respondent's maintenance of
an invalid no-solicitation and no-distribution rule which Respondent unlaw-
fully enforced on one occasion at its plant gate We are not persuaded that
these violations demonstrate that Respondent had a discriminatory motive
in discharging Pittman.
THE TIMKEN COMPANY 489
where it has been shown that other employees com-
plained to Respondent about Pittman's inattention to
the trainees and his failure to assist them after Pittman
had been specifically instructed to stay with the train-
ees on line 3.13 Under these circumstances, we con-
clude that a violation of Section 8(a)(3) of the Act has
not been shown.
4. Joe Stephan Guyton, formerly a "B Operator" in
Respondent's cone-grinding department, was dis-
charged on March 24, 1973, for "continued violation
of company rules and practices." The "continued vio-
lation" was his failure over a period of 6 months to
comply with the repeated instructions of his supervi-
sor, Robert Patton, to attend to the automatic grind-
ing machines whose operations he was responsible for
and not wander around the department talking with
employees. The incident that precipitated his dis-
charge occurred the day preceding it when his ab-
sence for almost an hour from his machines, one of
which was malfunctioning, resulted in the total loss of
more than 10 percent of the day's production from
them. Patton learned of this towards the end of the
shift and brought the matter to the attention of the
day-shift superintendent, Charles Perkins. He and
Perkins determined that they should consider dis-
charging Guyton, and he so informed Guyton.
Guyton called Patton shortly after Patton had re-
turned home from work, told Patton that he was for
the Union, and asked whether he "was going to be
discharged because [he] was a union member.... "
Patton told Guyton he would inform him when a
decision as to his discharge had been reached. Later
that evening Patton called Perkins to see if a decision
had been reached, and during their conversation in-
formed Perkins of his conversation with Guyton, in-
cluding Guyton's mention of his union membership.
Then or the following morning Perkins instructed Pat-
ton to discharge Guyton, and Patton did so.
The Administrative Law Judge concluded that Re-
spondent had been seeking a pretext for discharging
Guyton in order to terminate his widespread solicita-
tion of authorization cards, and seized on the incident
13 After the trainees had testified that Pittman had failed to assist them on
line 3 and after both the General Counsel and the Respondent had rested
their cases , the Admirnistrative Law Judge permitted the General Counsel
to "re-open" his direct examination of Pittman . Pittman testified that he had
responsibilities at places other than line 3 . Respondent then called a witness
to establish that the only trainees in the grinding department were on line
3. The Administrative Law Judge stated at the trial that he would credit the
latter testimony . However , in his Decision , the Administrative Law Judge
found to the contrary that Pittman 's responsibilities were not primarily to the
trainees on line 3 . Respondent , in its exceptions , filed a motion with the
Board to reopen the record based on its claim that it had proffered evidence
at the trial concerning this issue , but Respondent had been "effectively
entrapped" by the Administrative Law Judge 's statement into withholding
other evidence on this subject . In view of our decision to dismiss the 8(a)(3)
allegation concerning Pittman 's discharge , we find it unnecessary to rule on
Respondent's motion to reopen the record.
of March 23, which would not otherwise have been
regarded as serious enough to warrant his discharge,
as the pretext. Since there is no evidence that Guyton
did solicit authorization cards, Respondent's sup-
posed motive for discharging him lacks support in the
record.
While Guyton had spoken to a few of his more than
500 coworkers about the merits of unionization dur-
ing the 2 weeks prior to his discharge, in the three
specific instances he could recall, he had not been
observed by company supervisors. Engaging in a few
casual conversations about the Union was, as far as
the record reveals, the limit of his union activity. He
admittedly had not publicly evinced his support for
the Union, and, as noted above, there is no evidence
he solicited authorization cards.
Furthermore, the Administrative Law Judge's char-
acterization of Guyton's production of defective parts
as not "serious" rests on the erroneous premise that
the lost production was excusable because his ma-
chine was malfunctioning. The contrary is the case,
since Guyton's job was precisely to stay with the ma-
chine and correct any malfunctions before a signifi-
cant number of defective parts could be produced. In
these circumstances, we find that the evidence does
not establish that Respondent's discharge of Guyton
was discriminatorily motivated. We therefore shall
dismiss the complaint allegation as to him.
5. Lloyd Patterson on the morning of March 29,
1973, distributed union literature at the plant gate.
That same morning his supervisor ordered him to do
extensive cleanup work around and behind his ma-
chine. On April 4, Department Superintendent Stan
Smith orally warned him for making too much scrap,
or unusable product, on his machine. The following
day Smith gave him a written warning for harassing
Ralph Jennings, a fellow employee whom Patterson
had been insistently urging to support the Union and
criticizing for not doing so.
The Administrative Law Judge concluded that the
two warnings violated Section 8(a)(1). He made no
conclusion as to the March 29 cleanup order, appar-
ently because the General Counsel had not alleged in
the complaint that it was a violation of the Act.
We find the evidence to be insufficient to establish
that the two warnings were discriminatorily motivat-
ed. It is clear that the March 29 cleanup order did not
involve work normally performed by a janitor since,
as Patterson testified on cross-examination and as the
Administrative Law Judge found, the janitor's golf-
cart-sized cleaning apparatus would not fit in the area
around and behind Patterson's machine. In any event
no contention was made that the March 29 order
violated the Act.
The Administrative Law Judge's finding that the
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 4 warning to Patterson was discriminatory is
premised on the fact that other similarly situated em-
ployees were not warned. That premise, however, is
erroneous. The record establishes that one of
Patterson's coworkers, an employee named Ratch-
ford, was not only warned several times for producing
excessive scrap but was ultimately discharged for it.
The April 5 warning to Patterson for harassing an-
other employee was issued only after the other em-
ployee told Virgil Bryant, the maintenance
department superintendent, that if Bryant did not get
Patterson off his back, he was going to quit. Under
these circumstances, we find that the issuance of the
two warnings to Patterson did not violate the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices , we shall order that it cease and
desist therefrom and take affirmative action necessary
to implement the policies of the Act.
ORDER
Respondent, The Timken Company, Gaffney,
South Carolina, its officers, agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating any employee about
their union support or activities.
(b) Promulgating or enforcing any no-solicitation
and no-distribution rule which prohibits employees
from engaging in union solicitation during their non-
working time or which prohibits employees from dis-
tributing literature on behalf of the Union during
their nonworking time in nonworking areas.
(c) Preventing employees from distributing or re-
ceiving union literature at the plant gate.
(d) Threatening employees with the loss of the
right presently granted by the Company to excuse
them from scheduled Saturday work if the Union be-
comes the bargaining agent for its employees.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at its plant at Gaffney, South Carolina,
copies of the attached notice marked "Appendix." 14
Copies of said notice, on forms provided by the Re-
14 In the event that this 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 read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
gional Director for Region 11, after being duly signed
by the Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER JENKINS, concurring in part and dissenting in
part:
I agree with my colleagues' findings that Respon-
dent violated Section 8(a)(1) by promulgating and en-
forcing an unlawful no-solicitation and
no-distribution rule, by preventing employees from
distributing union literature at the plant gate and
physically interfering with an employee's receipt of
union literature, and by coercively interrogating em-
ployee Peggy Harris as to her union sympathies and
threatening her with reprisals if the Union came in.
However, contrary to my colleagues, I would further
find, as did the Administrative Law Judge, that Re-
spondent further violated Section 8(a)(1) by unlawful-
ly interrogating Wallace Tate and John Nicholson
and by issuing warnings to Lloyd Patterson. Addi-
tionally, again in agreement with the Administrative
Law Judge, I would find that Respondent violated
Section 8(a)(1) and (3) by discharging John Nichol-
son, Bard Pittman, and Joseph Guyton.
The Administrative Law Judge, after crediting
Wallace Tate's testimony, found that Supervisor Vas-
sey, on March 20, 1973, engaged in a conversation
with Tate during which he, Vassey, unlawfully ques-
tioned Tate as to his feelings about the Union. My
colleagues , apparently ignoring the Administrative
Law Judge's credibility finding, as well as the record
evidence, reverse the Administrative Law Judge's
8(a)(1) finding and dismiss the allegation of the com-
plaint. It is crystal clear from the record that Tate
testified on direct examination that Vassey "asked me
how did I feel about the Union," and, contrary to the
implication in my colleagues' opinion, Tate repeated
this testimony on three separate occasions on cross-
examination in the following manner:
Q. He came with that question first. Just
walked up to you and said how do you feel about
the Union?
A. Yeah.
THE TIMKEN COMPANY 491
Q. And he opened the conversation with that?
A. Right, sir.
Q. Now, are you sure of that?
A. That's not the exact words.
Q. Well, what were his exact words, as best
you can recall them?
A. He came up and he said there's been a
rumor about a Union being established here.
And he asked me how did I feel about it.
Q. Now those are his exact words? As best you
can recall?
A. Yes.
Still later-
A. Well, he came up to me first and asked me
how did I feel about the Union. So I wasn't so
sure about it because I had no inkling about the
Union or anything, so I asked him if it would
jeopardize my job, and he said no. And then he
started telling me the disadvantages about the
Union.
Finally, Tate repeated the substance of Vassey's re-
marks in this manner:
Q. I want to concentrate on one point. You
said Bill Vassey walked up to you, and said how
do you feel about the Union? That's the first
thing he said?
A. Well I was working on a machine at the
time when he came up. And he approached me
with that question.
Q. That was the first thing he said?
A. Yes sir. Was I for the Union?
In view of the foregoing record testimony, I do not
agree with my colleagues that Tate's version on cross-
examination indicates that Vassey did not ask Tate
how he felt about the Union. I would find, as did the
Administrative Law Judge, that Vassey's interroga-
tion of Tate violated Section 8(a)(1) of the Act.
Interrogation and Discharge of Nicholson
As more fully set forth by the Administrative Law
Judge, the credited evidence in the record reveals that
on March 9 the known leading union advocate, John
Nicholson, was transferred from his long-held job as
a roving repair mechanic throughout the plant to a
stationary job of setting up screw machines in a sepa-
rate area at the south end of the plant. At the time of
this reassignment, Nicholson was warned by Supervi-
sor Ricker to stay at his machine and not to roam all
over the plant.15 While Nicholson was working at one
15 I agree with the Administrative Law Judge' s conclusion that this reas-
signment was designed "to curb Nicholson's highly suspected union activities
during worktime by reducing his opportunities for contacting employees
throughout the plant."
of the screw machines, Bryant approached Nicholson
and asked him "how the Union was going." Nichol-
son replied that the Union "was dead." Bryant re-
sponded by notifying Nicholson to report to his,
Bryant's, office for a "talk." When this "talk" ulti-
mately took place in Bryant's office, Nicholson was
handed a written disciplinary slip signed by Bryant
which is fully described by the Administrative Law
Judge.
Viewed in its total context, I agree with the Admin-
istrative Law Judge's conclusions that Bryant's quer-
ies directed to a leading advocate of the Union did
have a serious purpose in seeking information as to
how the Union was doing in its campaign. Moreover,
in the circumstances, and as Nicholson had just been
reassigned and as his opportunities for contacting em-
ployees throughout the plant had been severely cur-
tailed, it is understandable that his jocular reply to
Bryant's inquiry was that the Union "was dead."
Clearly, Bryant's questioning of Nicholson violated
Section 8(a)(1) of the Act.
Nicholson was discharged on March 28, 1973. I
agree with the Administrative Law Judge's conclusion
that the real reason for Nicholson's discharge was his
open and widespread union activity. As fully spelled
out by the Administrative Law Judge, the credited
record evidence shows that Nicholson became a
"marked man" when he was discovered attempting to
pass out union literature at the plant gate. Moreover,
Respondent was not deceived by Nicholson's ruse to
be allowed to travel through the plant in order to
supply Respondent information on intraplant union
activity. Indeed, it knew Nicholson's true loyalty was
to the Union and it removed him from his plantwide
roving mechanic's job and reassigned him to a sta-
tionary job at one extreme end of the plant, warning
him at the same time to remain in his work area.
The Administrative Law Judge, in my view, has
also properly rejected Respondent's "for cause" rea-
sons urged in defense of Nicholson's discharge and I
shall not repeat such analysis here. Suffice it to say,
I believe Respondent seized upon such incidents as
the pretexts it was searching for to discharge Nichol-
son. In sum, I find from the credited record evidence
that the reasons advanced by Respondent for
Nicholson's discharge are pretextual and that Re-
spondent discriminatorily discharged Nicholson in vi-
olation of Section 8(a)(3) and (1) of the Act.
Bard Pittman
As more fully set forth in the Administrative Law
Judge's Decision, the credited evidence reveals that
Bard Pittman was a highly skilled and respected em-
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee. However, 4 days after he notified his supervi-
sor, White, that he signed a union authorization card
and "would back the Union" he was summarily dis-
charged. For the reasons set forth by the Administra-
tive Law Judge, I find that Respondent's reasons for
Pittman's discharge are pretextual and that the real
reason for his termination was his open support of the
Union. Clearly, in my view, Respondent's discharge
of Pittman violated Section 8(a)(3) and (1).
Joe Stephen Guyton
Contrary to my colleagues, from the credited rec-
ord evidence as a whole , I find, in agreement with the
Administrative Law Judge, that Respondent seized
upon the tendency of Guyton to wander away from
his work area as a pretext for his discharge. In my
view, the real reason for his discharge was his suspect-
ed or known efforts to organize the plant in the 2-
week period preceding his termination . In sum, I be-
lieve the Administrative Law Judge, as set forth in his
Decision , came up with a far more realistic appraisal
of the credited evidence than did my colleagues.
Clearly, his discharge violated Section 8(a)(3) and (1)
as alleged in the complaint.
Warning Notices to Lloyd Patterson
The Administrative Law Judge found that the Re-
spondent violated Section 8(axl) when Superinten-
dent Smith warned Patterson for making scrap on his
machine and for harassing employee Ralph Jennings.
I agree . Contrary to my colleagues, I find that the
credited record evidence establishes that the two
warnings were discriminatorily motivated.
As more amply set forth by the Administrative Law
Judge , it appears that , from the moment Patterson
arrived at work on the morning of March 29 , after his
handbilling of union literature at the plant gate, Re-
spondent commenced discriminating against him. In-
deed , immediately upon arrival at his work area, he
was ordered by his supervisor to perform cleanup
work normally and regularly performed by the jani-
tor. Thus , according to Patterson 's credited testimo-
ny, Supervisor Conrad ordered him to do a far more
extensive cleanup job than he had ever done before
while operating the machines during his 14 months'
employment.
Thereafter, on April 4, Superintendent Smith gave
Patterson an oral warning that he was producing too
much scrap. However, Patterson's credited testimony
shows that at the time there were other employees in
his department who were making more scrap than he
did but who did not receive any warnings . Indeed,
according to the credited testimony of Patterson,
Smith admitted to Patterson that he, Patterson, was
"not the only one making scrap in the department."
It further appears that Patterson protested, telling
Smith that "the only reason he was giving me this was
because of my union activities, and that I had never
received nothing like this before because of scrap." 16
Finally, on the next day, Patterson was issued a
written warning allegedly for harassing people around
his work area. In this regard, it is true that Patterson
did tell Jennings, a fellow employee, that he, Jennings,
was a second-class worker because he could not sup-
port the Union. Moreover, the record shows that Jen-
nings complained about Patterson to Supervisor
Bryant. Nevertheless, I believe a realistic appraisal of
the total conduct of the Respondent indicates that
Respondent seized upon this incident to issue the
warning notice . In sum, when Patterson 's active union
solicitation of Jennings is considered in the light of
Respondent's open hostility to having any union in
the plant, its flagrant disregard for employee rights,
and its extensive unlawful acts to prevent unioniza-
tion of the plant, it is clear to me that Respondent
seized upon this incident as a pretext for issuing the
warning notice.
Accordingly, I agree with the Administrative Law
Judge's conclusion that Respondent violated Section
8(a)(1) of the Act by the issuance of the foregoing
warnings to Patterson.
16 My colleagues point to the fact that at one time an employee was
discharged for producing excessive scrap . Clearly this does not overcome the
credited testimony showing that at that time others were making scrap but
were not warned , nor does it overcome Smith 's acknowledgment that Patter-
son was not the only one in the department who was making scrap.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the Na-
tional Labor Relations Act, and has ordered us to post
this notice. We therefore notify you that:
WE WILL NOT coercively interrogate our em-
ployees about their membership in, sympathy
for, or activities on behalf of any union.
WE WILL NOT promulgate or enforce any no-
solicitation and no-distribution rule which pro-
hibits our employees from engaging in union so-
THE TIMKEN COMPANY 493
licitation during their nonworking time or from
engaging in distribution of union literature dur-
ing their nonworking time and in nonworking
areas of the plant.
WE WILL NOT prevent employees from distribut-
ing or receiving union literature at the plant gate.
WE WILL NOT threaten employees with the loss
of the right to be excused from scheduled Satur-
day work if the Union becomes the bargaining
agent of our employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
All of our employees are free to become, remain, or
refrain from becoming or remaining, members of the
above-named or any other labor organization.
THE TIMKEN COMPANY
(Employer)
Dated By
(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 compli-
ance with its provisions may be directed to the
Board's Office, 1624 Wachovia Building, 301 North
Main Street, Winston-Salem, North Carolina 27101,
Telephone 919-723-2300.
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH: The Respondent is engaged in the man-
ufacture of roller bearings at seven plants . Six of the plants
are located in Ohio and one in Gaffney, South Carolina,
which is the only plant here involved. The Gaffney plant
was opened as a new plant in 1970. The Company's plants
at Canton, its headquarters, and at Columbus, Ohio, are
organized . The remaining five plants , including the Gaffney
plant , are unorganized.
Plans to organize the Gaffney plant were initiated in early
1973. On February 28, 1973, the Respondent gained knowl-
edge of these organizational plans through their disclosure
by a Gaffney employee and union activist, John Nicholson,
to the Gaffney plant personnel supervisor, J. B. Greene.'
1 The above finding is based on Greene's own testimony. Greene' s name,
shown in the complaint as "J. P. Greene," was amended at the trial to read
J. B. Greene.
Greene and Nicholson are cousins . By mid-March 1973, the
Union was actively engaged in soliciting union authoriza-
tion cards from the employees at the Gaffney plant.
The Respondent's antiunion position with respect to hav-
ing labor unions at its Gaffney plant is forthrightly stated
in its "Employees' Handbook" as follows:
Our management feels that unions can offer no advan-
tage to employees here because of our Company prac-
tice of providing a wide range of benefits , excellent
working conditions and a fair day's wages for a fair
day's work.
We know that you can express your problems to us and
we can understand each other more clearly if a union
is not placed between you and your supervisor. We
want you to speak for yourself and directly to us .2
Under the above undisputed but skeletonized facts, the
issues under the pleadings are in part whether the Respon-
dent is in violation of Section 8(a)(l) of the Act (a) by the
acts of its plant guards in preventing certain employees from
handbilling union leaflets on the outside of the gate to the
plant, and through the act of one of such guards in pulling
such a leaflet from the hands of an employee, (b) by coer-
cive interrogations of employees concerning their union ac-
tivities, (c) by a statement of a supervisor to one of such
interrogated employees that if the Union got in , he would
not be able to let employees off on Saturdays, (d) by the acts
of plant guards and company officials on another occasion
in refusing to allow certain employees to pass out union
literature at the plant gate , (e) by issuing a disciplinary
warning to an employee because he had engaged in union
activity, and (f) by promulgating and enforcing unlawful
no-solicitation and no-distribution rules .3
The final issues herein are whether the Respondent dis-
criminatorily discharged three of its Gaffney plant employ-
ees, including the aforementioned John Nicholson, in
violation of Section 8(a)(3) of the Act.
The consolidated complaint herein was issued on May 10,
1973, pursuant to a charge filed in Case 1l-CA-5267 on
March 22, 1973, and an amended charge filed on April 13,
1973, and pursuant to a charge filed in Case 1l-CA-5277
on March 30, 1973. Copies of these charges were duly served
on Respondent.
The Respondent 's answer denies the alleged unfair labor
practices.
The case was heard on June 26, 27, and 28, 1973, at
Gaffney, South Carolina. The briefs filed on August 10,
1973, by counsel for General Counsel and by counsel for
Respondent have been carefully reviewed and considered.
For reasons hereinafter indicated , I find the Respondent
in violation of the Act as alleged in the complaint.
2 The complaint does not allege Respondent 's above expressions on the
subject of labor unions as a violation of the National Labor Relations Act,
presumably because the expressions appear to be privileged under Sec. 8(c)
of the Act. The expressions are noted solely as a background factor to be
considered in the light of the entire record in the determination of the unfair
labor practices alleged in the complaint.
3 These issues will be taken up in somewhat different order than shown
above.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Timken Company, the Respondent herein, is an Ohio
corporation,4 with a plant located in Gaffney, South Caroli-
na, where it is engaged in the manufacture of roller bearings
as heretofore indicated. During the 12 months preceding the
issuance of the complaint, a representative period, Respon-
dent received at its Gaffney plant goods and materials di-
rectly from outside the State of South Carolina valued in
excess of $50,000. During that same period, the Company
shipped goods and materials in excess of $50,000 to points
directly outside the State of South Carolina. By reason of
these admitted facts, I find that the Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.5
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, the Charg-
ing Party , is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background: Number of Employees and
Plant Description
The Gaffney plant is a large single-story structure where
approximately 535 employees are employed in its various
departments. The front of the building is surrounded by a
fence with a main gate through which all employees must
enter or exit. Alongside of the gate is a guard booth which
juts out behind the fence and is essentially part of the fence
barricade. A company guard is stationed at the gate at all
times . All employees must present their identification cards
to the guard at the main gate for entrance to the plant. The
area in front of the fence, reserved for parking, is also com-
pany property.
B. First Gate Incident of March 20, 1973, and Company
No-Distribution and No-Solicitation Rules
Employees Weldon Phillips and the aforementioned John
Nicholson were scheduled to report for work at the Gaffney
plant at 7 a.m., on March 20, 1973, but that morning they
arrived at the plant at about 6:30 a.m., in order to pass out
union literature before clocking in. Nicholson who had all
the union leaflets to he passed out in his possession arrived
at the parking lot a moment or two before Phillips. As
Nicholson was passing out a piece or two of union literature
By stipulation, the complaint was amended to show that the Respondent
is an Ohio corporation instead of a South Carolina corporation as originally
alleed.
59Originally denied in Respondent's answer, Respondent at the trial admit-
ted that it is engaged in commerce within the meaning of the Act.
outside the main gate to the plant, Nicholson was stopped
by a guard who told him he could not do that. As Nicholson
argued with the guard that he had the right to distribute the
union literature, he gave Phillips, who had caught up with
him, half of the printed material and told him to start pass-
ing it out. The guard then put his hands on the shoulders
of Nicholson and Phillips and escorted them into the guard-
house where the security chief, a Mr. Rector, was already
on the telephone reporting the incident to management.
Within a moment or two, the plant's general manager, Rob-
ert Duffield, and the plant's manager of employees services,
the aforementioned J. B. Greene, were at the guard house
where Nicholson and Phillips had deposited their bundles
of the union leaflets on the floor.
Duffield demanded to know what was going on. Nichol-
son replied that they had "attempted to distribute literature
to off workers, and we're off time now, [to] people going to
work and before we go to work." Duffield told Nicholson
that company rules did not allow the distribution of union
literature or literature for any other purpose on company
property. This was a reference to a published company rule
distributed to all Gaffney plant employees which prohibits:
Solicitation of employees for donations or membership
in organizations, circulation of petitions or other litera-
ture, sale of tickets, merchandise or any other item on
Company premises without the specific approval of the
General Manager or his designated representative.
Nicholson's undisputed testimony shows that Duffield
threatened to impound the union literature he and Phillips
were seeking to distribute but desisted upon the intervention
of Greene, his personnel supervisor, and upon his advice
ordered Nicholson and Phillips to take the literature off
company property. The two employees picked up the litera-
ture from the guardhouse floor, brought it to their parked
cars, and then returned to the plant to clock in for the day's
work. At the time of the trial Phillips was still in the employ-
ment of the Company, but Nicholson was discharged 8 days
later under subsequent charges and the allegations of the
complaint that he was discriminatorily discharged will be
considered and determined in a later section of this Deci-
sion.
Throughout the above-described incident, Nicholson as-
serted his right under the Act to distribute union literature
on his off time to other off time employees on company
property.
Discussion and Conclusions
The above findings are based upon the undisputed and
fully credited composite testimony of Nicholson and Phil-
lips. In its 45 page brief, the Respondent devotes only a
single sentence in defense to the above-described gate inci-
dent as follows: " . . . Phillips and Nicholson attempted to
hand out literature inside the plant gate where they had no
right of access, and, in the course of which, they blocked the
entrance gate."
Although it is true that Phillips testified that Nicholson
attempted to pass out union literature inside the gate,
Nicholson's testimony shows that he passed out such litera-
THE TIMKEN COMPANY
ture only to "off workers" outside the gate and the testimony
of both Phillips and Nicholson shows that the action of the
sentry guard at the entrance gate nipped in the bud before
it could start any attempt by Nicholson or Phillips to pass
out union literature inside the gate.
But in any event it makes no difference under well estab-
lished law whether the distribution was inside or outside the
Company's gate (which in either case was on company
property) because under the rulings of the Supreme Court
as summarized by the Board in Walton Manufacturing Com-
pany, 126 NLRB 697 (1960), no-distribution rules which
prohibit the distribution of union literature on any company
property by employees during their nonworking time are
"presumptively an unreasonable impediment to self -organi-
zation" and is "therefore presumptively invalid both as to
their promulgation and enforcement" unless such a rule is
validated "by evidence that special circumstances make the
rule necessary in order to maintain production or disci-
pline ." No such "special circumstances" were shown in the
instant case . Similarly the record is devoid of any evidence
as contended by Respondent that Nicholson or Phillips
blocked the entrance gate or that they did not have the right
to access the plant through the main gate as bona fide plant
employees.
In summary I find and conclude that Respondent 's inter-
ference with the right of employees Nicholson and Phillips
to distribute union literature on Respondent's property dur-
ing their nonworking time was and is a violation of Section
8(a)(1) of the Act.
I also find and conclude under the authority cited above
that Respondent 's above quoted rule prohibiting the circu-
lation of literature insofar as it relates to the distribution of
union literature on company property by employees during
their nonworking time under the circumstances of this case
is in violation of Section 8(a)(1) of the Act.
I further find and conclude under the same cited authori-
ty that the Respondent 's above quoted rule prohibiting the
solicitation of its employees for membership in organiza-
tions insofar as it relates to- solicitations for union member-
ship or union authorization cards from its employees on
company property during nonworking time where it does
not interfere with production or discipline is likewise in
violation of Section 8(a)(1) of the Act.
C. Second Gate Incident on March 20, 1973
On that same March 20, the Company had an evening
shift that started at 3 p.m. Employees Sammy Dean Teague
and Ronald Wayne Phillips (not the same Phillips involved
in the early morning gate shift incident described above)
who were scheduled to work on that shift , arrived some 30
minutes early in order to pass out union literature at the
entrance gate to the plant . As they stationed themselves
adjacent to but outside the gate to pass out the literature to
employees who were about to go through the gate for the
start of the shift , they were accosted by the sentry guard
Floyd Patterson with whom Phillips was well acquainted.
When Patterson said to the two men , "What you fellers got
there?," Phillips handed him one of the union leaflets. After
a glance at the leaflet , the guard told them they were on
private property and could not pass out the leaflets there
495
and further threatened to lock them up if they did not go
to the end of the road off company property to distribute
union literature . As Phillips was asserting his rights to pass
out the literature , the guard who had let Teague through the
gate only the day before and on other occasions , turned to
Teague and asked if he worked at the plant and upon receiv-
ing a "Yes" answer , told Teague , "Well, you don't any
longer."
While the guard was talking to Teague, Phillips handed
one of the union leaflets to a female employee whereupon
the guard reached over and pulled the leaflet out of her
hand.
Under the guard's orders Teague and Phillips desisted
from further efforts to distribute union literature at the gate
to employees as they were reporting for work.
Discussion and Conclusions
The above findings are based on the testimony of Teague
and Phillips which I credit . Respondent offered no testimo-
ny to the contrary . Respondent's only defense in its 45-page
brief to the above-described incident is this single sentence:
"Phillips and Teague approached the plant entrance gate
and proceeded to hand out literature without identifying
themselves as employees of the Respondent , and, at the
same time , refused to inform the guards what it was they
were handing out." The uncontradicted testimony of Teag-
ue and Phillips is to the contrary . Phillips ' undisputed testi-
mony shows that the guard not only knew that Phillips was
a plant employee but that they were also well acquainted
with each other.
While Teague 's testimony shows that he had only a curso-
ry acquaintance with the guard, his testimony leaves no
doubt that the guard recognized him as a plant employee
from having passed him through the entrance gate on previ-
ous occasions . This is shown by the fact that the guard did
not demand to see Teague 's badge when Teague in response
to the guard 's question answered "Yes" that he was a plant
employee . The guard's instant reaction to Teague that "he
was fired" from having seen him trying to pass out union
literature shows by the inference the guard 's instructions by
management to be on guard against any union activity at
the plant.
Respondent's contention that the two employees "refused
to inform the plant guards what it was that they were hand-
ing out," is equally without merit . The undisputed record
shows that when the guard asked what the two employees
were passing out that Phillips handed him one of the union
leaflets and that when the guard discovered its nature he
ordered him off the company premises with the union litera-
ture. It was precisely because the guard knew that the two
employees were passing out union literature that he ordered
them off company property.
Under the established law heretofore noted in connection
with the earlier gate incident in the same day, I find that
Respondent's interference through its guard with the right
of employees Teague and Phillips to pass out union leaflets
during their nonworking time constitutes a violation of Sec-
tion 8(a)(1) of the Act.
I further find and conclude that the act of Respondent's
agent , the guard, in physically taking from one of its female
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees the union leaflets given to her by employee Phil-
lips constitutes a further and separate violation of Section
8(a)(1) of the Act.
D. Interrogations
The complaint alleges three unlawful interrogations of
employees at the Gaffney plant by various supervisors
about their union activities.
Interrogation of March 9, 1973
As heretofore noted, John Nicholson, one of the earliest
union activists at the plant, informed his cousin, J. B.
Greene, the plant's personnel supervisor, as early as Febru-
ary 28, 1973, that the Union was planning to organize the
plant.
The record further shows that Nicholson also openly told
other supervisors about his union sympathies and warned
them that if he suffered any discrimination by reason of his
union activities he would file unfair labor practice charges
with the Board. On March 17, 1973, the Union in a telegram
to the Company complained that Nicholson had been
coerced, intimidated and harassed because of his union ac-
tivity and warned that if such alleged conduct was not
stopped immediately the Union would file unfair labor
practice charges against Respondent.
Nicholson during all but about the last 10 days of his
employment with the Respondent was chiefly employed in
its maintenance department as a sort of roving mechanic
throughout the plant under the supervision of Virgil Rex
Bryant, the departmental supervisor who had overall juris-
diction of all three shifts at the plant.
Nicholson's testimony and affidavit of record shows that
on March 9, 1973, Bryant came to his work station and
laughingly asked "How the union was going?" and that
Nicholson answered that it was "Dead" and laughed.
Bryant asserted that that was not what he had heard. Ni-
cholson thereon laughed and told Bryant that he was right.
Bryant in his direct testimony in behalf of Respondent
admitted that he did see Nicholson on or about March 9
and that Nicholson on that occasion did tell him that the
Union was, "Dead," and that Nicholson further told him
that management "shouldn't have any worry, that there was
only a very few people at the [union] meeting." Bryant also
testified that Nicholson made these revelations about the
Union to him on his own initiative and without any inquiry
from him (Bryant) on the subject. This latter testimony is
not credited for the reason, among others, that the record
shows that it was virtually put in the mouth of Bryant by
a leading question by Respondent' s counsel .'
Discussion and Conclusion
I credit Nicholson's testimony that Bryant initiated the
conversation about the Union and that Bryant, under the
circumstances of the case with full knowledge of the
Company's opposition to having a union at its Gaffney
6 The leading question was: "On or about March the 5th did John Nichol-
son stop you and try to report to you something about the Union?"
plant as openly publicized in the Company's "Employees'
Handbook" and with his admitted knowledge of
Nicholson's role as a ring-leader in getting the plant orga-
nized, deliberately engaged the non-secretive Nicholson in
a conversation about the Union for the purpose of ferreting
out information about how the Union was doing in its cam-
paign to organize the plant.
Respondent in its brief offers no defense to the interroga-
tion described above.
Under all the circumstances described above, I find and
conclude that Bryant on or about March 9, 1973, unlawfully
interrogated Nicholson about how the Union was doing in
its organizational drive in violation of Section 8(a)(1) of the
Act.
Interrogation of March 20, 1973
At the times here material Wallace Tate was employed at
the Gaffney plant under the supervision of William L. Vas-
sey and was still working for the Company at the time of the
trial herein.
Tate testified that on March 20, 1973, Vassey engaged
him in a conversation during the course of which Vassey
asked him how he felt about the Union.
Vassey's testimony was essentially confirmatory of Tate's
testimony. Vassey testified that on the mentioned date he
approached Tate and that after speaking to Tate about his
request for a shift change, opened up the conversation with
him about the Union 7 by stating to Tate, "I've seen a lot
of people gather and talk about a union." To Tate's reply
that he too had heard "a lot of talk ... about it myself,"
Vassey testified that he responded with the remark, "Well,
the union can benefit no one because of the benefits in the
pay the company pays here."
Discussion and Conclusion
The composite testimony of both employee, Tate, and
Vassey, his shift supervisor, leave no doubt that Vassey on
March 20, 1973, engaged Tate in a coercive interrogation
concerning the union activities at the plant and accordingly
I find and conclude that the interrogation was in violation
of Section 8(a)(1) of the Act.
Interrogation of March 21, 1973, and Threat
A day or two prior to March 21, 1973, General Manager
Duffield called a meeting of the second shift employees at
the plant at which he addressed them on the position of the
Company concerning labor unions at the Gaffney plant.'
On March 21, a day or two after the Duffield speech,
Peggy Harris, an hourly employee and union advocate on
the second shift, was approached by Gary D. Garber, her
shift supervisor, and asked by Garber what she thought of
7 Vassey's testimony admitting that he opened up the conversation on the
topic of the Union appears as follows:
June Buse : And actually you opened up the conversation with respect
to the union, did you not?
Nasser: Yes, sir.
Duffield similarly addressed the other two shifts at the plant at separate
meetings with them.
THE TIMKEN COMPANY
Duffield's speech. Harris replied that she thought Duffield
was trying to put it across to the employees that they did not
need a union at the Gaffney plant." Garber then asked what
she thought about having a union at the Gaffney plant. She
replied that she believed that the advantages of having a
union at the plant outweighed the disadvantages. Garber
sharply disagreed with her and argued that a union was
undesirable because it could cause friction and confusion
between the employees and supervisors.
Garber also told Harris that if a union came into the plant
he would no longer be able to release her upon request from
scheduled Saturday work as he had done in the past but
could do so only if her name came up "on a list that he had
to go by." to
Garber in his testimony admitted approaching Harris at
her work station at or about the indicated date and there
opening up a discussion with her on the subject of a union
at the Gaffney plant by asking her if she understood
Duffield's "presentation of the company's views and poli-
cies regarding unions." The text of Duffield's speech was
not offered in evidence. However, from Harris' impression
of the speech and from the Company's publicized opposi-
tion in its "Employees' Handbook" to having a labor union
at the Gaffney plant, I infer and find that Duffield in his
speech reiterated the Company's position that a union was
not necessary at the Gaffney plant and that Duffield chose
March 21, 1973, for making his speech because the Union
was then in the midst of its campaign to organize the plant.
Garber did not expressly deny that he told Harris that if
a union came into the Gaffney plant he would no longer
have the power to grant her releases from required Saturday
work as he had done in the past but would be able to do so
only if her name came up "on a list that he had to go by."
He testified instead that he merely told Harris that on the
basis of his prior experience at an organized Timken plant
in Ohio, that scheduled Saturday work at the Gaffney plant
if it became organized, would be on a voluntary basis in-
stead of its present system of required Saturday work unless
a worker was excused and that he offered this explanation
to Harris only because she asked what would become of
scheduled Saturday work if the Gaffney plant became orga-
nized. I do not credit this testimony.
I specifically find that it was Garber, not Harris, who
brought up the subject of scheduled Saturday work and
specifically find that Garber as part of his argument against
having a union at the Gaffney plant sought to convince
Harris that the Company's present way of handling releases
from scheduled Saturday work was better than the employ-
ees would have under a union.
Discussion and Conclusions
I find that Supervisor Garber's admitted interrogation of
hourly employee Harris as to whether she understood the
general manager's antiunion speech was coercive in nature
and designed to discourage Harris' known union sympa-
9It was noted above that the Company's "Employees' Handbook" ex-
presses opposition to having a labor union at the Gaffney plant.
10 The findings of the above two paragraphs are based upon the fully
credited testimony of Harris.
497
thies and activities. I accordingly find the interrogation to
be in violation of Section 8(a)(1) of the Act.
I further find that Garber's remark to Harris that she
would lose Garber's present right to excuse her from sched-
uled Saturday work if the Union came in constituted a
threat designed to deflect her union activities in violation of
Section 8(a)(l) of the Act.
E. Alleged Discriminatory Discharge of John Nicholson
The aforementioned John Nicholson was employed at the
Gaffney plant in the spring of 1971 and discharged on
March 28, 1973. The complaint alleges that he was discrimi-
natorily discharged because of his union activities. The
Company's discharge notice to Nicholson states that he was
discharged for "Repeated violations of company rules and
practices, use of profane language concerning manage-
ment."
Nicholson was employed principally as a roving mechan-
ic in the plant's Maintenance Department which had charge
of maintaining and repairing all company machines
throughout the plant. For all but about the last 2 weeks of
Nicholson's employment with the Company, his job was to
do such maintenance and repair work over the entire area
of the plant as directed from day to day by his supervisors.
He was one of about 19 such mechanics in the Maintenance
Department.
Nicholson was one of the Union's earliest and most ar-
dent and active supporters and was notoriously open about
his union sympathies to the plant's top management person-
nel. As heretofore shown, Nicholson telephoned his cousin,
J. B. Greene, the plant's personnel supervisor, on February
28, 1973, to tell him about plans that were underway to
organize the plant and arranged for a meeting the next
morning with Greene and William Leuck, the plant's main-
tenance supervisor, for further divulgence of the Union's
organizational plans. At the conference the next morning
Nicholson offered to give Greene and Leuck the names of
employees supporting the Union on the condition of a
promise that such employees would not be discharged.
Greene and Leuck declined to enter into the proposed deal.
A few days later, on March 3, a Sunday, Nicholson made
the same proposal to the plant's general manager , Duffield,
who likewise declined the proposal."
Thereafter, starting about March 5 or earlier, Nicholson
began an active and persistent solicitation of union authori-
zation cards from about one-fifth of the approximately 535
employees at the Gaffney plant. He admitted doing this
during lunch periods at the various canteens in the plant,
but the record as a whole shows that the Respondent be-
lieved that he also engaged in such union solicitation during
worktime.12
Earlier findings above show that Nicholson on March 9
was interrogated on "how the Union was doing" by his
11 The findings of the above paragraph are based on the credited testimony
of Greene and Duffield as brought out by Respondent 's counsel on direct
examination.
12 Most of this union activity by Nicholson was brought out at the trial not
by counsel for General Counsel but by counsel for Respondent, presumably
in an effort to show by cross-examination that Nicholson was engaging in
union activity during working hours.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
departmental supervisor , Virgil Bryant . On March 19, fol-
lowing a disciplinary warning he had received on the 16th
as hereinafter described in detail , Nicholson informed
Bryant in the presence of aforementioned coworker Weldon
Phillips , that he had signed a union card for the Charging
Party and put Bryant on notice that if he was harrassed or
given discriminatory treatment because of his union activi-
ties he would bring unfair labor practice charges against the
Company as fast as possible.
On March 20, 1973, also as shown above , Nicholson and
the same coworker Weldon Phillips were stopped from dis-
tributing union literature during their nonworking time at
the gate to the plant by guards and moments later ordered
to remove the union literature from company property by
Mr. Duffield personally , the plant's general manager.
In its brief the Respondent candidly admits that, "The
Company was aware from the outset that Nicholson was
active in behalf of the Union .... " (Emphasis supplied.)
On March 9 , 1973, Nicholson was transferred from his
long held job as a roving repair mechanic throughout the
plant to a stationary job of setting up screw machines in a
separate building at the south end of the plant called the
Green Area or Green Room from the fact that the bearings
there are in their initial state of manufacture . At the time of
this reassignment , Nicholson was warned by his immediate
supervisor , Edward Ricker , to stay at his machine and not
to roam all over the plant . I infer and find that this reassign-
ment of Nicholson to a fixed work station was made to curb
his highly suspected union activities during worktime by
reducing his opportunities for contacting employees
throughout the plant.
On March 16, 1973, Nicholson was called in for a confer-
ence with Bryant , his departmental supervisor , and Ricker,
his immediate supervisor , in Bryant's office . There he was
accused of and reprimanded for roaming all over the plant
instead of staying at his work station as he had been direct-
ed. This was the principal accusation against Nicholson. He
was also reprimanded for not following the order of a super-
visor . During the course of his conference Bryant handed
Nicholson a written notice of his reprimands , entitled "Re-
cord of Disciplinary Action ,"which in pertinent part reads:
OFFENSE 1. Failure to stay o job assignment
2. Failure to follow orders and instructions of
superior
DISCIPLINE Written warning : Other defense of this na-
ture will result in discharge
The "Record of Discipline Action" bore the signature of
Bryant as department supervisor . At Bryant 's request Ni-
cholson signed the discipline action at the place for the
employee's signature , but not withoutsome protest and ar-
gument of innocence. The next day , March 17 , as a result
of Nicholson 's complaint, the Union sent a telegram to the
Company notifying the Respondent that Nicholson was a
member of the Union 's "In Plant Organizing Committee
at the Gaffney plant." The telegram advised that the Union
had information that Nicholson had been "coerced , intimi-
dated and harassed" by management because of his union
activities and warned the Respondent that the Union would
file unfair labor practice charges unless such (alleged) ac-
tion by company supervisors and officials did not cease
immediately . As heretofore shown , Nicholson on March 19
personally notified his departmental supervisor, Mr.
Bryant, that he had signed a union card and would file
unfair labor charges "fast" if he were harassed or discrimi-
nated against because of his union sympathies and activi-
ties.
The credited testimony of the plant 's supervisor shows
that the following incidents involving Nicholson took place
which the Company contends justified the issuance of its
disciplinary action of March 16 to Nicholson . On the very
day, March 9, that Nicholson was assigned to his stationary
work station and warned by Ricker to stay at his post and
not to roam around the plant , Ricker found Nicholson miss-
ing from his station 11 a.m. to 11 : 20 a.m ., which was prior
to the regular lunch period of 11:20 to 11 : 40 a.m. At 11:20
a.m., Ricker went to one of the nearby canteens for his
lunch. While Ricker was eating his lunch , the plant's shift
superintendent , Perkins , came to tell him that he had seen
Nicholson wandering all over the plant talking to other
employees and asked in effect what he , as Nicholson's im-
mediate supervisor, was doing about that . Ricker immedi-
ately left the canteen to search for Nicholson , but was
unable to locate him until 12 : 20 p.m ., at the heat treat area
(adjacent to the Green Area) where he had no legitimate
reason to be. Ricker told Nicholson that he had had a report
that he had been seen all over the plant interrupting other
employees at their work, despite the order he gave him early
that morning not to roam all over the plant but to stay at
his work station . Ricker thereupon ordered Nicholson back
to his work station and again directed him to stay there.13
Starting the next day , March 10 , Nicholson embarked on
a plan to get around the order that he was not to roam about
the plant but to stay at his work station . On that day, a
Saturday , he twice telephoned his cousin , Greene , the afore-
mentioned personnel supervisor of the plant , at his home to
give him unsolicited information about the lack of success
the Union was then having in its efforts to organize the plant
and to offer to pass on any additional information he could
about the status of the Union 's future efforts to organize the
plant but in this connection he told Greene that it "would
be necessary for him to be in different areas [of the plant] "
and that therefore it was necessary that Bryant , as depart-
ment supervisor of maintenance , and Leuck , as the general
maintenance superintendent , be made aware of his
[Nicholson's] intent to act as an informer on the Union and
that in view of this Bryant and Leuck should be instructed
not to impede Nicholson from visiting all parts of the plant.
Greene in effect told Nicholson that the Company would
have no part in his proposal and that he would not be
allowed to do anything in the plant that other employees
were not allowed to do. Greene reminded Nicholson that
only the day before he had been reprimanded for wandering
13 The above findings are based on the credited composite testimony of
Ricker , Leuck , and Perkins . Nicholson 's denial that he had not been away
from his work station and his alternative alibi that he had been in the supply
room to pick up supplies are not credited . In his affidavit dated March 30,
only 2 days after his discharge , Nicholson admits that he was orally repri-
manded by Ricker on the occasion here under consideration because of the
reports that had reached Ricker that he had been seen wandering all over the
plant.
THE TIMKEN COMPANY 499
about the plant.
The next day, March 11, a Sunday, Nicholson twice tele-
phoned Greene at his home . In his first call he reported that
a certain employee in the plant was going to meet with
union representatives shortly . In his second call he request-
ed Greene to arrange a conference for him with General
Manager Duffield as he wanted "to deal with the top man."
Greene relayed this request to Duffield.
The next day , March 12 , a Monday , Duffield , having
been notified by Greene that Nicholson wanted to see him,
made himself available to Nicholson for a talk near the close
of Nicholson 's shift at 3 p.m. that day. Nicholson asked
Duffield if he was aware that there was going to be a union
meeting the next evening and told Duffield that it would be
difficult for him , Nicholson , to attend such union meetings
". . . and come back and bring information, and at the
same time not sign a union card ." Duffield replied that it
was none of his (Duffield 's) business as to what went on at
the union meetings or as to whether Nicholson signed or did
not sign a union card . He reminded Nicholson that he had
expressed the same views to him on March 3 , when Nichol-
son sought to propose a deal to act as an informer on the
Union in exchange for a promise that no employee would
be fired because of his union sympathies or activities. (This
finding is a replication of an earlier finding above.) Duffield
further told Nicholson that what he was proposing was
illegal and that he, Duffield , "won't be a part of it"
Earlier on that same day, March 12, Nicholson also in-
formed Greene at the plant of the union meeting scheduled
for the next evening at the home of a plant employee. That
night Nicholson telephoned Greene at his home before the
union meeting started to give him the address of the home
of the employee where the meeting was to take place. At
each of these contacts , Greene professed lack of interest but
not so emphatically as to deter Nicholson from contacting
Greene again.
Departmental Supervisor Bryant testified that in the eve-
ning of that same day, March 12, around 9 p.m., Nicholson
telephoned him at his home to inform him that he had
worked out a deal with Duffield and Green that permitted
him to be seen anywhere in the plant in order that he could
gather information for the Company on plant employees
who favored the Union . Bryant testified that he immedi-
ately told Nicholson that he could not believe that Duffield
would enter into such a deal but that he would check with
Duffield and Greene in the morning and let Nicholson
know whether he had a confirmation of the claimed deal.
In the morning as he had expected , Bryant received a denial
from Duffield that he had entered into any such deal and
that he was to notify Nicholson to that effect. When Bryant
called Nicholson into his office to tell him that Duffield had
denied the claimed deal , Nicholson, according to Bryant's
own testimony , denied that he had claimed that he made
any such deal with Duffield or Greene and that Bryant had
misunderstood him. I credit Nicholson 's denial because it is
inherently improbable that Nicholson , a reasonably intelli-
gent man , would be so incredibly stupid as to try to put over
the stunt Bryant ascribed to Nicholson.
Although both Bryant and Leuck testified that notwith-
standing repeated instructions to Nicholson to stay at his
work station they still saw him wandering around the plant
from and after March 9 and up to the date of the discipli-
nary warning of March 16, this testimony is not credited
because no specific incidents of such conduct by Nicholson
was adduced . Obviously if such conduct had occurred,
Bryant or Leuck could have confronted Nicholson on the
spot and ordered him back to the Green Room and this
would have left an indelible impression , subject to recollec-
tion at the trial but no such specific incidents were testified
to by Bryant or Leuck.
As heretofore noted the same formal reprimand in addi-
tion to citing Nicholson for "Failure to stay on his job" also
cited him for his , "Failure to follow orders and instructions
of a supervisor." In that connection the credited testimony
of Ricker (Nicholson 's immediate supervisor) and Bryant
(departmental supervisor ) show that a day or two prior to
March 16, Ricker told Nicholson that a certain blueprint he
needed was at a specified place in the Green Room where
Nicholson worked and directed him to look for it at that
place . Nicholson's credited testimony shows that he could
not find the blueprint where he was told it was and therefore
began to hunt for it in an area where he thought it would
be in a plant location outside of the Green Room but with-
out success . Subsequently the blueprint was found in the
Green Room where Ricker told him to look for it. Under
these circumstances I find that there is insufficient evidence
to prove that Nicholson used his inability to find the blue-
print in the Green Room as an excuse to leave his work
station to visit other parts of the plant.
On March 28 , 12 days after Nicholson 's initial discipli-
nary action , the Company discharged him. At his discharge
conference, Maintenance Superintendent Leuck gave Ni-
cholson his second disciplinary action which stated that he
was being discharged for, "Repeated violations of company
rules and practices , use of profane language concerning
management ." Although Nicholson signed his first discipli-
nary action, he declined to endorse the second action calling
for his discharge on its stated grounds . The Company has
no rules governing the number of disciplinary notices an
employee must receive before he may be discharged.
The Respondent contends that it discharged Nicholson
because of the following credited incidents and not because
of his union activities.
Based upon a duty imposed by law the Company has a
rule that requires employees who work in restricted areas of
the plant to wear safety eyeglasses furnished free to such
employees . That part of the Green Room in which Nichol-
son worked was a restricted area . Nicholson was well aware
of the rule and in fact had at the request of a supervisor put
up signs in the Green Room notifying employees in the
restrictive areas that they must wear safety eyeglasses.
Notwithstanding this rule, Bryant on March 19 and 20
found Nicholson at work in his restricted area without hav-
ing his safety eyeglasses on. On both of those occasions
Bryant took Nicholson to task for not wearing his safety
glasses and warned him on the second occasion that a fur-
ther violation of the rule could subject him to disciplinary
action.
Despite this warning, Nicholson was again apprehended
on March 21, this time by Ricker , his immediate supervisor,
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at work in his restricted area without wearing his safet
glasses . At Ricker's order, Nicholson put his glasses on.'
In another incident which occurred some time between
March 19 and 23, Nicholson was found away from his work
station using a company telephone for a personal call con-
trary to a company rule for which he was orally repri-
manded by Bryant.
In other instances , Maintenance Supervisor Leuck testi-
fied that he received reports between March 19 and the date
of Nicholson's discharge on March 28 that Nicholson was
seen in the supply room, halfway across the plant from his
work station, more frequently than he would normally have
to be there. As Leuck's testimony in this connection if true,
could have been easily corroborated by other employees of
the Company but was not, I do not give it any weight.
Another reason given by Respondent for Nicholson's dis-
charge was that he used "profane language concerning
management." For this the Company places reliance on an
incident which occurred on March 27, when Nicholson
sought to proselytize an office employee, Keith Haygood, to
the union cause . In speaking to Haygood, Nicholson said,
" ... the S.O.B.'s in the office don' t like me because I am
the S.O.B. organizing this . . . union." (Resp. Exh. 5). I find
that this is vulgar rather than profane language and from
long experience as the trier of facts in unfair labor practice
cases I find that such vulgar language in factories by both
hourly employees and supervisors is not uncommon or un-
usual . For these reasons and without further discussion, I
find and determine that this single instance of vulgar lan-
guage used by Nicholson after the date of his first discipli-
nary action of March 16 played no genuine part in
Nicholson's discharge. However, this finding does not dis-
pose of the ultimate question of whether Nicholson was
discharged for other good cause or because of his union
activities.
On the date of Nicholson's discharge on March 28, 1973,
he was under the immediate supervision of Park Sarratt who
had only 2 days earlier succeeded to Ricker's position as
Nicholson's immediate supervisor. The Company contends
that an incident occurred in the morning of March 28 which
triggered Nicholson's discharge that day. Early that morn-
ing Nicholson looked up Bryant who was about to leave the
plant to attend a meeting and asked his permission to go to
the receiving room at the other end of the plant to pick up
two pipe elbows he needed in his work. There is a conflict
of testimony on whether Bryant gave Nicholson the permis-
sion he sought or instead told him that Sarratt, who came
into Bryant's office as Nicholson was making his request,
would pick up the parts and bring them to Nicholson. The
record, however, leaves no doubt that when Nicholson with-
in minutes after speaking to Bryant asked Sarratt for a ride
on his intraplant electric cart to pick up the parts, Sarratt
told Nicholson that he himself would get the parts and bring
them to Nicholson at his work station and that Sarratt si-
multaneously ordered Nicholson back to the Green Room.
Nicholson nevertheless in disobedience to Sarratt's order
proceeded on foot to the receiving room to get the elbows
but came out emptyhanded because the parts were out of
stock. While he was still in the vicinity of the receiving
N This appears from Nicholson 's own affidavit.
room, Sarratt spotted Nicholson and sharply reminded him
that he had only moments ago ordered him back to the
Green Room. Stung by the sharpness of Sarratt's order,
Nicholson instead of going back to his job as ordered, by
telephone intercepted Bryant at the plant gate as he was
leaving the plant and asked him whether it was not true that
he had given him permission to pick up the two pipe elbows
at the receiving room. I credit Nicholson's testimony and
affidavit that Bryant admitted 'S to him that he had given
Nicholson permission to go after the two elbow pipes but
Nicholson's testimony and affidavit also show that Bryant
reminded Nicholson that Sarratt was now his new boss and
that he was to follow his instructions.
Sarratt that same morning reported the above incident to
Maintenance Superintendent Leuck who in turn reported
the matter to Plant Manager John Heggestad who after an
alleged review of Nicholson's disciplinary record from and
after March 9 when Nicholson was reassigned from his
roving job to a stationary job, ordered his discharge in the
absence of Personnel Supervisor Greene who normally
looks after discharges. Sarratt was directed to bring Nichol-
son to Leuck for his discharge.
When Nicholson reached the office Leuck was then occu-
pying, Leuck in the presence of Sarratt told Nicholson that
he was being discharged. As Leuck started to read to Ni-
cholson the disciplinary action's generalized reasons for his
discharge, "Repeated violations of company rules and prac-
tices, use of profane language concerning management,"
Nicholson asked for "specifics," that is, for specific instanc-
es of his alleged violations of company rules and practices.
Leuck told Nicholson he did not care to discuss such "spe-
cifics" with him. Nicholson then declared that what was on
his discharge disciplinary action was "dribble-drabble" and
"gooby gook horse s-," that he did not care to listen to it,
and that he was not going to sign the Company's discharge
notice. 16
The record shows that management regarded Nicholson
as a competent mechanic and worker.' The Company
makes no contention that it discharged Nicholson because
of any dissatisfaction with his work as a mechanic.
Although the Company had knowledge in early March
1973 of Nicholson's union sympathies and interests, it be-
came more painfully aware of his overt union activities to
organize the Gaffney plant on March 20, 1973, when the
plant's General Manager Duffield on that day discovered
15 In this connection I do not credit the testimony of Bryant and Sarratt
that when Nicholson asked Bryant for permission to go after the two parts
that Bryant, in Nicholson 's presence , told Sarratt to get the parts for Nichol-
son. My reason for discrediting this testimony of Bryant and Sarratt is that
no satisfactory answer was given to me as the trier of the facts when I stated
to Bryant as he was testifying that it seemed "odd to me that he [Nicholson]
would come back to you [Bryaant l and ask you about it (whether it was true
that he had given Nicholson permission to go after the parts] if you had
specifically told him [Nicholson ] just a few minutes earlier that Park [Sarratt]
would get the parts for him."
16 The findings in the above paragraph are based upon the credited com-
posite testimony of Nicholson, Leuck, and Sarratt.
17 In his affidavit , Nicholson states that in the March 16 disciplinary con-
ference he had with his Departmental Supervisor Bryant , "Bryant stated that
he would have to admit that I [Nicholson] was a worker , that I got things
done, and that I was one of the best ." Nicholson's affidavit, first offered for
identification by Respondent but later withdrawn after extended cross-exam-
ination of Nicholson thereon , was received in evidence as G.C. Exh. 5. The
Company did not seek to contradict the above statement from Nicholson's
affidavit in the presentation of its defense-in-chief.
THE TIMKEN COMPANY
that Nicholson and coworker Weldon Phillips had been
attempting to distribute union literature to plant employees
at the plant gate as heretofore described. On that occasion
hot words were exchanged between Duffield and Nicholson
which was ended by Duffield's order that Nicholson remove
the union literature from company property.
From and after that date of March 20, 1973, two or three
supervisors trailed Nicholson whenever he had occasion to
come through the plant. On March 26, or 2 days before
Nicholson's discharge, Department Supervisor Bryant told
an hourly employee, "You know we're keeping our eyes on
him...... 1 1
Only a day earlier, March 19, as heretofore shown, Ni-
cholson put Bryant on notice that he had signed a union
authorization card and that if he experienced any harass-
ment or discrimination he would file charges "fast." On
March 17, also as heretofore noted, the Union had sent a
telegram to the same effect to the Company in behalf of
Nicholson.
Discussion and Conclusions
Although the record shows Nicholson to be a trouble-
some , meddlesome and officious employee, the stubborn
question remains whether he was discharged because of
these qualities and infractions of company rules and orders
in the 12 day period between his first disciplinary warning
and his discharge or because of his notorious union activi-
ties at the plant.
The Company, as publicized in its "Employee Hand-
book" is openly opposed to having any union at its Gaffney
plant. Its first informant of union activity at the Gaffney
plant appears to have been Nicholson who as early as Feb-
ruary 28, 1973, told his cousin, J. B. Greene, the plant's
personnel director, of the Union's then nascent plans to
organize the plant. By March 20 the Union's organizational
drive was in full swing. In the early morning of that same
day General Manager Duffield was called to the main gate
to deal with Nicholson who with coworker Weldon Phillips
was attempting to pass out union literature to employees
reporting to work at the plant gate. Duffield threatened to
confiscate the union literature but was persuaded by the
more knowledgeable Greene to merely order Nicholson and
Phillips to remove the literature from the company prem-
ises.
That same day, March 20, Duffield became so alarmed
about the Union's organizational drive at the plant that he
deemed it necessary to assemble separately each of the three
shifts at the plant in order to express to the employees his
strong views that a union at the plant would be inimical to
their best interests.
Nicholson became a marked man to management many
days prior to March 20 when he was discovered attempting
to pass out union literature at the plant gate. From February
28 to almost March 16, Nicholson was a sort of double
agent in that while he was doing all he could to organize the
plant he was at the same time trying to work out a deal with
top management people to let him have the right to traverse
's The above finding is based on the credited testimony of Weldon Phillips
and Peggy Harris.
501
throughout the plant so that he could report on employees
who were favoring the Union. Initially he proposed to do
this on the condition that no employee who favored organi-
zation would be fired, but when his proposal was rejected
he still sought authority to go to all parts of the plant in
exchange for reports on union activity he could bring back
to management.
The Company was never taken in by Nicholson's pre-
tense that he wanted permission to be seen at all parts of the
plant in order to furnish it with information on intraplant
union activity. It knew from the beginning that Nicholson's
true loyalty was to the Union as the record indeed estab-
lishes. For that reason it took him off as early as March 9
from his plantwide roving mechanic's job and reassigned
him to a stationary post in the Green Area with instructions
that he was to stay at his fixed work station so that he would
not have opportunity to proselytize for the Union through-
out the plant.
The Company was not without some cunning itself in its
dealings with Nicholson when he sought from time to time
to pass on information to supervisors on the union activity
at the plant or his evaluation thereof. It was only after the
supervisors had listened very carefully to all that Nicholson
had to say about the Union that they cut him off, said they
were not interested , and that it was none of their business.
The record as a whole is clearly convincing that the Com-
pany came to an early realization that Nicholson endan-
gered the plant to union organization and that it had to get
rid of him for that reason. The correctness of Respondent's
evaluation of Nicholson as a high source of union infection
was confirmed retrospectively at the trial when Nicholson
under cross-examination admitted that he had personally
solicited union authorization cards from about one-fifth of
the approximate 500 employees at the plant.
The Company seeks to justify Nicholson's "for cause"
discharge under the combination of its initial Disciplinary
Action of March 16 and its discharge disciplinary action of
March 28.
An analysis of the initial disciplinary action shows that it
is based on very slim and insubstantial grounds. The first
reason given for the action was Nicholson's alleged "Failure
to stay on job assignment." But on this the only specific
evidence presented by Respondent was that Nicholson was
away from his new stationary work station for about an
hour on the very day, March 9, he was assigned to that
station and told to stay there, but was found in an area
where he had no legitimate reason for being. But aside from
that instance, there is no specific evidence of Nicholson
having been found illegitimately away from his station on
any other specific times between March 9 and 16. Assuredly
if there had been any real proof of this, Respondent would
have presented it.
At the trial and in its brief Respondent seeks to make
much out of the fact that Nicholson in that same period
sought to make deals with General Manager Duffield and
other supervisors for permission to traverse the plant in
return for information he would bring back to management
about employees who favored the Union. However, whatev-
er one may think of such conduct it is obviously not a
"failure to stay on job assignment," one of the reasons given
by Respondent for issuing to him its disciplinary action of
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 16.
The other reason given for Nicholson's disciplinary warn-
ing of March 16 was his "Failure to follow orders and
instructions of supervisor." On this there is a similar paucity
of evidence. Respondent called attention to only one specif-
ic instance of what it deemed a failure on the part of Nichol-
son to follow an order of a supervisor, but even on this the
evidence is inconclusive. Nicholson as shown above was
ordered by his supervisor to look for a needed blueprint in
a certain place in the Green Room but went looking for it
elsewhere becuse he could not find it there. The evidence
shows that if he had looked for it more carefully in the
Green Room where he was told to look he would have
found the blueprint. This is hardly evidence of a deliberate
failure to follow an order.
The Respondent contends that Nicholson's disciplinary
action or discharge notice of March 28, 1973, issued only 12
days after his first warning notice, was precipitated by an
event that occurred in the very morning of the date of his
discharge. As shown in the findings above, Nicholson early
that morning received permission from Bryant, his depart-
mental supervisor, to leave his station in the Green Room
to go to another part of the plant to pick up two elbow pipes
he needed in his work but that this order was countermand-
ed by Sarratt, Nicholson's then new immediate supervisor
who worked under Bryant.
I find that Nicholson's failure to follow Sarratt's count-
ermanded order is not the horrendous misconduct or insub-
ordination Respondent seeks to make out. As between
conflicting orders from Bryant and Sarratt, Nicholson had
the right to assume that Bryant's orders had priority over
those of Sarratt because Sarratt worked under Bryant. Sar-
ratt himself recognized this in his testimony in behalf of the
Company. Sarratt's testimony shows that when the argu-
ment arose between himself and Nicholson as to whether
Bryant had given Nicholson authority to go after the two
elbow parts, Sarratt recognized Nicholson's right to check
with Bryant on the matter but turned him down only on the
ground that Bryant who was leaving the plant for a meeting,
could not be reached by telephone." Actually as shown
above Nicholson did reach Bryant by telephone and did
receive an acknowledgment from Bryant that he had given
Nicholson permission to go after the fittings but now direct-
ed him to follow Sarratt's orders in the matter. The fact that
Bryant at that point countermanded the permission he had
previously given Nicholson to go after the fittings and in-
stead told Nicholson to follow Sarratt's order in the matter,
obviously does not have the retroactive effect of making
Nicholson insubordinate for failure to follow Sarratt's origi-
nally conflicting order not to go after the fittings. In my
opinion Nicholson did not act wisely in refusing to accept
Sarratt's countermanding order that he should not go after
the fittings, but obviously his refusal to do so as long as
Bryant's more authoritative prior permission to him to pick
up the fittings was still outstanding, does not fall into the
19 In this connection , Sarratt testified as follows : "And he [Nicholson] said,
'Rex Bryant told me to look for these firrings .' and he said , 'Let's see Rex
now,' and I said , 'I am sorry , John, we can 't see Rex because he's not in the
plant .' Nicholson then said,'Let's call him .' I said,'We can't call him because
I don't think he can be reached by phone."'
category of the classical, definite, and clearcut insubordina-
tion that merits discharge.
Under all the circumstances of this case I find that the
Respondent seized upon the above incident as the precipi-
tating pretext it was searching for Nicholson's discharge. To
bolster its case that Nicholson was discharged for cause and
not for his union activities, Respondent also relies on evi-
dence showing that on 3 different days in the last 10 days
of Nicholson's employment his attention had to be called to
the fact that he was not wearing his safety eyeglasses as
required by company rules. The record shows that when so
reminded, Nicholson quickly and cheerfully put the glasses
on. There is nothing in the record to show that Nicholson
deliberately violated the rule requiring the use of safety
eyeglasses . I find that Nicholson's failure to have his safety
glasses on on the mentioned occasions was due to oversight
and played no real part in his discharge.
To further bolster its case that Nicholson was discharged
for cause, Respondent also relies on evidence that on one
occasion in the week or so preceding his discharge, Nichol-
son used a company telephone for a personal call contrary
to company rules instead of a pay telephone installed for the
use of hourly employees. I find this also a pretextual reason
for Nicholson's discharge becuse employers are not general-
ly given to discharging competent employees, such the re-
cord herein shows Nicholson to have been regarded, for
such a trivial reason.
Finally Respondent seeks to support its defense that Ni-
cholson was discharged for cause, not only because of the
incidents subsequent to his first disciplinary action of
March 16, 1973, but also for the alleged causes that led to
his first disciplinary action. However, as shown by the anal-
ysis above, the first disciplinary action was based on very
slim and insubstantial grounds. I find from the record as a
whole that the first disciplinary action was given to Nichol-
son on March 16, 1973, was part of a two-step plan to set
him up for discharge for pretextual reasons.
It is significant that Mr. Leuck in his discharge interview
with Nicholson refused to give him any "specifics" of mis-
conduct on his part for which the Company was allegedly
discharging him.
I find and conclude from the record as a whole that the
reasons advanced by the Respondent for Nicholson's dis-
charge are pretextual and that the real reason for his dis-
charge was his open and notorious union activity. I
therefore conclude that the Respondent discriminatorily
discharged Nicholson in violation of Section 8(a)(3) of the
Act.
F. Alleged Discriminatory Discharge of Bard Pittman
Bard Pittman , an employee in Respondent 's Cone Grind-
ing Department 20 at its Gaffney plant, was abruptly dis-
20 The Gaffey plant manufactures a tapered roller bearing , chiefly for
trucks, which consists of four main parts, namely, (a) a cup or outer race,
which fits around the cone and roller assembly (the cup although much larger
bears a resemblance to a man's wedding band ), (b) a cone or inner race which
fits into the cup, (c) a cage which fits into the cone which serves as a retainer
to maintain the proper spacing between the rollers grouped around the cone,
and (d) the tapered rollers which fit into the spaces in the cage designed to
hold them and which roll freely between the cup and cone . The cones need
grinding both on their inner and outer dimensions to line tolerances so that
THE TIMKEN COMPANY 503
charged on March 27, 1973, 4 days after he had notified his
supervisor, Glen White, the man in charge of the Cone
Grinding Department, that he had signed a union authori-
zation card and "would back the Union" as much as he
could, but "would [still] try to do my job" even better than
he had been doing. With respect to that assurance, White
replied, "There ain't no way you could do the job better."
The above occurred on Friday, March 23, 1973, shortly
after the first shift started at 11 p.m. which ended at 7 a.m.,
the following day. Right after Pittman told White that he
had signed a union card and would try to do a better job
than he had even done before, he asked White to let the shift
foreman, Bob Irvin, know that he (Pittman) had signed a
union card becuse he "would rather for him [White] to tell
Mr. Irvin before Mr. Irvin told him [White]." That night
Irvin kept Pittman under close surveillance and even timed
him on his lunch break.
The following day, March 24, Pittman and another co-
worker, together with union representative, Estes Riffe,
called at the homes of some eight or nine Gaffney plant
employees to solicit their signatures to union authorization
cards. That night at the plant some time after midnight,
March 25, Pittman took four of his coworkers into Supervi-
sor White's office and told White they had all signed union
cards. Pittman also told White to tell Shift Foreman Irvin
that if he followed these employees around the same way
Irvin had followed him around during the preceding night
shift, they would file unfair labor practice charges against
the Company.21
On Tuesday, March 27, 1973, at the 11 p.m. beginning of
the first shift, Pittman was summoned to Supervisor White's
office where White, to Pittman's complete surprise, told
him, "Boy, I'm going to have to discharge you for threaten-
ing fellow employees, and that's all I going to tell you." Only
White and Pittman were in the office at the time. Pittman
had no idea as to what White was referring to. At the time
of his discharge or perhaps later when he received his termi-
nation pay, as the record is not clear on this, Pittman was
given a "Record of Disciplinary Action," showing his dis-
charge. The action states that he was being discharge for,
Threatening fellow employees-vulgar
language-neglect of work.
Prior to his discharge Pittman had never received any
preliminary warnings about any misconduct towards any
other employees or any complaints on his work perfor-
mance. On the contrary on the matter of his work perfor-
mance as shown above, Pittman's immediate supervisor,
White, had told him only 4 days prior to his discharge that
"there ain't no way" he could do a better job than he had
been doing.
Nevertheless, the Respondent at the trial attempted to
show through numerous witnesses but not through Supervi-
they fit perfectly within the assembled tapered roller bearing. Pittman's job
had to do with the machines that grind the cones.
21 The findings in the above paragraphs are based upon Pittman 's testimo-
ny which I fully credit and which in any event appears from the transcript
to be wholly undisputed and uncontradicted . It is noteworthy that Supervi-
sors White and Irvin, mentioned in the above findings , were not offered as
witnesses by Respondent and did not testify in this proceeding.
sor White that the principal reason for Pittman's discharge
was neglect of his job in the last 2 nights prior to his dis-
charge and not solely as White had told him at the time of
his discharge "for threatening fellow employees."
At the date of his discharge, Pittman had worked at the
Gaffney plant for about 2 years. At the time he was hired,
the Company thought well enough of his potentialities to
send Pittman to the South Carolina Technical School at
Gaffney for a period of about 14 weeks for training on how
to operate all the various grinding machines in its Grinding
Department, apparently in preparation for making him a
trainee instructor on such machines. When he finished his
training at the technical school, the Company put him to
work as a "B Operator" in its Cone Grinding Department
on a finishing cone grinding machine. Later he was promot-
ed to an "A Operator." Approximately I week before his
discharge he was made a temporary trainee instructor to
trainees on the cone grinding machines.
As heretofore noted the Gaffney plant was opened as a
new plant in 1970. Sometime after Pittman was hired in
1971 and sent to an outside technical school for training, the
Company in a more limited way began to train its own
employees on how to operate its grinding machines. Initially
such employees are placed under 5 weeks of initial training,
both in the classroom and at the machines but not for
production, under the Company's primary instructor, Lee-
ford Blanton . Then such employees are assigned to trainee
instructors on each of the three shifts, such as Pittman, for
a period of 4 weeks in the actual operation of grinding
machines for production. The grinding machines are highly
complex and very expensive machines running into millions
of dollars for the 27 such machines in the Gaffney plant.
The function of the cone grinding machine is to grind cones
in both their inner and outer dimensions to very close toler-
ances. It takes such training and experience to learn to
operate such machines. Trainee instructors earn a higher
hourly wage than A operators but it is undisputed that they
are not supervisors within the meaning of the Act. Pittman
at no time here involved was a statutory supervisor.
The 300-foot long Cone Grinding Department has a total
of about 27 machines set up in 6 continuous lines numbered
I to 6. In his first week as a temporary trainee instructor,
Pittman as instructed by Supervisor White covered the en-
tire department and gave help to any operators, trainees or
regulars, who needed help. But in his second week as tempo-
rary trainee instructor, White ordered Pittman to stay most-
ly with the operators on lines I and 2 because they were
having a good deal of trouble with their machines, especial-
ly on line 1. In the night before his discharge Pittman spent
most of his working time with the operators on line 122
22 I recognize that there is a contradiction in Pittman's own testimony as
to what lines of machinery Supervisor White directed him to stay with in the
2 nights prior to his discharge . Pittman 's testimony under his first cross-
examination shows that he was directed by White to stay with lines I and
2 during those 2 nights . However , when Pittman was recalled for further
direct examination under granted leave, he testified that on those 2 nights he
was "assigned to line one and in line three " But under his second cross-
examination following his further direct examination Pittman again testified
that White had ordered him to stay on lines I and 2 on his last 2 nights of
employment with the Company. After careful consideration and much re-
consideration and reflection , I have concluded that Pittman 's testimony as
a whole requires that this contradiction under various stages of his testimony
Continued
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pittman in his testimony referred to the operators on line
1 as "trainee" operators but the record shows that they were
not technically trainees because they had apparently com-
pleted their full formal 9 weeks of training as trainees, the
first 5 weeks under the primary instruction of Blanton and
the remaining 4 weeks in actual production on their ma-
chines as trainee operators. The same also appears to be true
of the operators on line 2. But it was on these two lines that
the department was having the most trouble and it was for
this reason, it is again noted, that Supervisor White ordered
Pittman to stay mostly with lines 1 and 2 in the 2 nights prior
to his discharge.
The only true trainee operators, technically speaking, in
the night shift at the time of Pittman's discharge were those
on line 3 as they had not completed their last 4 weeks of
actual operation on the grinding machines following their
initial 5 weeks of primary training under Instructor Blanton.
These trainee operators on line 3, Roy Davis, Thomas
Rodgers, J. B. Valentine, and Bobby Guyton, were in their
second week of actual operation of their grinding machines
at the time of Pittman's discharge.23
Although Pittman was under instruction from Supervisor
White to stay chiefly with the operators on lines I and 2 in
the 2 nights preceding his discharge, the Company's chief
defense for Pittman's discharge was that he neglected to
give assistance to the trainee operators on line 3. On this
there is a conflict of testimony between Pittman and three
of the then four trainee operators on line 3.24
Pittman testified that he gave assistance to all trainee
operators on line 3 as requested, although he could not
specifically recall the problems on which they requested
help during those last 2 nights of his employment with the
Company when he had to spend most of his time with the
operators on lines 1 and 2.
The first of the former trainee operators on line 3 called
by Respondent to testify as to events of the 2 nights prior
to Pittman's discharge was Bobby Guyton.25 The testimony
of Guyton and the other trainees shows that there was a sort
of understanding between Guyton and Pittman that Guy-
ton was to help the other trainee operators on line 3 as they
needed help when Pittman was busy elsewhere because
Guyton had greater knowledge of the machines than his
fellow trainees. On 1 of the 2 nights before Pittman's dis-
charge, trainee Rodgers complained to Guyton that he was
having trouble with his machine and as Guyton was busy
with his own machine, he told Pittman about it and Pittman
came over and helped Rodgers overcome his problem. On
March 25 shortly after midnight when Guyton was himself
having some trouble with his machine, he went to Pittman
be resolved in favor of his combined original testimony under his first cross-
examination and his later testimony under his second cross-examination. It
is on the basis of this combined testimony by Pittman under his first and
second cross-examination that I have found above that in the 2 nights before
his discharge Pittman had been ordered by his immediate supervisor, White,
to stay mostly with lines I and 2.
23 Although Respondent seeks to make much of the fact that Pittman
during his cross-examination could not recall the names of the operators on
lines 1, 2, and 3 except for the name of Guyton, in the 2 days prior to his
discharge, I find that this has no bearing on Pittman's credibility as a witness.
24 Trainee operator Davis was not called as a witness.
25 Bobby Guyton is not to be confused with Joe Steven Guyton who is the
third alleged discriminatee herein.
at line 1, and Pittman immediately went with Guyton to his
machine on line 3, where after observing the machine in
action, he suggested to Guyton that he check the "travel"
on his machine. Acting upon this suggestion, Guyton got his
machine to working better but still not operating as well as
it should have. Guyton offered no explanation as to why he
did not seek further help from Pittman or from Supervisor
White. Guyton's testimony as a whole shows that he could
generally solve problems on his machine without help from
Pittman or White. He testified, "I didn't need no help on my
machine. I went to him [Pittman] about the other fellow
employees." Guyton at no time voiced any criticism about
not getting all the help he or the other trainees needed from
Pittman during their first week of work as trainee operators.
His vague and rambling testimony insofar as it seeks to
show that Pittman in the last 2 days prior to his discharge
was not meeting the requests of the trainee operators on line
3 for assistance with problems on their machines is not
credited.
The testimony given by Rodgers was equally vague and
incohesive on his complaints against Pittman in the 2 work
nights prior to Pittman's discharge. He testified that he had
trouble with his machine both nights. When the trouble
started the first night, he called Pittman who was present on
the line with the result that Pittman came immediately and
got his machine going. Asked by counsel for the Respon-
dent whether Pittman did "anything to train and help" him,
Rodgers replied, "No more than what I would ask him. I
asked him one time and after that he didn't seem to care too
much about helping me, so I just didn't bother with him. I
mean I quit asking him to help me." It appears that Rodgers
was given to complaining about his machine when there was
nothing really to complain about. Thus when Supervisor
White came by Rodgers' machine and inquired if he was
having trouble with it, he refused to tell White but instead
asked him to check first with Pittman on that and told
White that after he had done that he would tell him the
trouble he was having with his machine. White spoke to
Pittman and reported back to Rodgers that Pittman had
told him that all the trainees "were doing a good job." It was
this tendency to complain when there was not anything of
real importance to complain about that may have caused
Pittman to ignore some of Rodgers' complaints, if credence
is given to Rodgers' complaint that Pittman ignored his
requests for help. However, I do not credit Rodgers' com-
plaints that Pittman in the 2 nights prior to his discharge
ignored any legitimate requests for help he received from
Rodgers. Rodgers' chief complaint against Pittman in his
last 2 work nights of employment with the Company was
that, "Pittman wasn't around to see what we [the trainees]
are doing." It is thus obvious that Rodgers did not know
that Pittman was not around line 3 very much on those last
2 nights of his employment with the Company because he
was under specific instructions from Supervisor White to
stay mostly with the operators on lines 1 and 2 during those
2 work nights.
The final former trainee operator to testify for the Re-
spondent against Pittman was Valentine. He testified that
on 1 of the 2 nights before Pittman was discharged, he had
trouble with his cone grinding machine on line 3, that he
looked up Pittman at line I and there reported his trouble,
THE TIMKEN COMPANY
that Pittman merely looked at him without responding, and
that he went back to his machine where his machine was
later stopped by Product Inspector Sandra Gilfillan because
she was not satisfied with the product coming out of
Valentine's machine. Gilfillan testified that she reported the
malfunctioning of Valentine's machine to Supervisor White,
but there is no evidence as to what White did or said about
the complaint. Gilfillan spent about 3-1/2 hours that night,
identified by her as being March 26, on line 3 checking the
products of the machines of Valentine, Rodgers, and Guy-
ton. In that time she saw Pittman only once at line 3. Later
that night towards the end of the shift she saw Pittman
"changing a wheel or something" on one of the cone grind-
ing machines on line 1. Throughout her testimony she as-
sumed that it was Pittman's duty to stay with the trainee
operators on line 3 that work night contrary to the fact, as
found above, that Pittman was under orders from Supervi-
sor White to stay mostly with the operators on lines 1 and
2 during that night as well as the preceding night because
of production difficulties on those two lines.
I credit Valentine's testimony that Pittman did not come
to his assistance when he told Pittman that his machine was
not working properly, but specifically find that this does not
prove any dereliction of duty on Pittman's part as he was
under orders by Supervisor White to stay with the operators
on lines 1 and 2 "unless I need you." Although Product
Inspector Gilfillan testified that she looked up Supervisor
White on the night in question to inform him that
Valentine's machine was not working properly, there is no
evidence that White rescinded his order to Pittman to stay
with lines 1 and 2 26 The credited and undisputed testimony
of Pittman shows that in the month or two prior to his
discharge it was not uncommon for the outer-dimension
grinding machines on line 3 to be down; his testimony
shows they were "down pretty regularly." Notwithstanding
such common breakdowns of some of the machines on line
3, Pittman's credited and undisputed testimony also shows
that the night shift he worked on prior to his discharge "still
run as much production as the other shifts, or more." After
Gilfillan reported to White that Valentine's machine was
malfunctioning, there is no evidence that White bestirred
himself to either order Pittman to see what he could do
about getting the machine to function properly again or to
make the repairs or adjustment himself. It is thus inferred
and found that both White and Pittman were under more
pressing duties elsewhere at the time.
In summary, I credit Pittman's repeated testimony under
cross-examination that throughout the 2 nights prior to his
discharge he helped all the trainee operators on line 3 when
they requested help except for the help Valentine requested
on his machine the night before Pittman's discharge, which
under the circumstances shown above was not a dereliction
of duty by Pittman.
Pittman in his pretrial Board affidavit stated that, "My
job was strictly that of an instructor to train trainees in how
to set and operate cone grinding machines." He held that
job on a temporary basis for only about 7 or 8 working
26 It is again noted that Respondent did not call upon Supervisor White
to testify , although counsel for Respondent acknowledged that White was
still working for the Respondent.
505
nights before he was discharged. However, as shown above,
the record shows that although Pittman had the title of
trainee instructor he was under orders by his immediate
supervisor, White, during the 2 nights prior to his discharge
to stay or spend most of his time with the operators on lines
1 and 2 who while they had passed the stage of being train-
ees, nevertheless needed his assistance in Supervisor White's
opinion more than the trainee operators on line 3.
Although at the trial Respondent sought to show through
many pages of testimony that the principal reason for
Pittman's discharge was his neglect in giving assistance to
the line 3 operators on the problems they were having with
their machines , thefirst reason given for Pittman's discharge
in his "Disciplinary Action" was for the alleged "Offense" of,
"Threatening fellow employees-vulgar language." "Ne-
glect of work" was mentioned only secondarily as the cause
for Pittman's discharge. At the time White called Pittman
into his office to tell him he was being discharged, he told
him that he was being discharged "for threatening fellow
employees"; White did not indicate in any way to Pittman
that he was being discharged because of "neglect of work"
or use of "vulgar language" to other employees.
The aforementioned product inspector, Sandra Gilfillan,
was the only witness offered by Respondent in support of
its first stated defense that Pittman was discharged because
he threatened fellow employees and used vulgar language.
She testified that on the night before Pittman's discharge he
got her started on a conversation about the Union at line
3 in the presence of two other employees, Gary Lovelace
and Charles Montgomery, by telling Montgomery that,
"Sandra signed a union card," and then following that up
with the statement, "Well, I think we ought to tell Roger
Tate [her supervisor] that she signed a Union card." Ad-
dressing herself to Montgomery, Gilfillan testified that she
told him, "You know better than that. . . . This is a free
country. And South Carolina has a right to work law, and
I don't have to do anything I don't want to do." When
Lovelace at that point began to explain why he had signed
a union card, she testified that Pittman interjected, "We'll
make it so God damn hard on her she will wish to hell she
had signed the card," and that he then followed that up with
some such remarks as that she would show her buttocks to
the Union but would be glad to receive the extra money the
Union could get for her.
Pittman admits that he opened up a conversation with
Gilfillan about the Union on the night before he was fired,
but testified that the only thing he said to her on that occa-
sion was , "Hello, Sandra, how do you feel about the
Union?", although he knew in advance that she was op-
posed to the Union. He further testified that her sole reply
was, "Oh, I can't sign a card. That would hurt my husband's.
job," and that the conversation ended at that point.
Of these versions, I accept Pittman's and reject Gilfillan's
because throughout her extensive testimony she gave the
impression of being a witness overly eager to help her em-
ployer with criticism of Pittman's alleged neglect of line 3
operators on the night before his discharge in an obvious
effort to give Respondent a justification for his discharge.
It is significant that both Gilfillan and Respondent share
strong antiunion views. I also discredit Gilfillan's version of
the remarks made to her by Pittman because neither one of
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the two fellow employees, who according to Gilfillan were
present when Pittman was said to have made the remarks,
were called by Respondent to corroborate Gilfillan. For
these reasons I accept Pittman's uncorroborated version of
what he said to her as against her uncorroborated version.
Respondent also contends that another reason for
Pittman's discharge was the vulgar language he used in
talking to Gilfillan during the same conversation he had
with her about the Union. Even if it is assumed that Pittman
in speaking to Gilfillan referred to her buttocks by the slang
term as she testified , she admits that she was not shocked
by any language Pittman used in the few words they ex-
changed on the subject of the Union. She also admitted that
"most everybody" uses profanity and that she herself uses
profanity. I accept Pittman's testimony that he used no
profanity or vulgar language in his conversation with Gilfil-
lan on the subject of the Union, but also find even if he did
make a reference to her rump by the slang term, Gilfillan
did not regard that as vulgar.
The Company contends that it was the complaints of
Guyton, Rodgers, Valentine, and Gilfillan to Personnel Di-
rector Greene and Night Shift Supervisor Ervin about Pitt-
man that led it to discharge him. These four employees at
the time they testified herein were still in the employ of
Respondent.
Discussion and Conclusion
The salient fact here is that Pittman, a highly skilled and
respected worker, was fired just 4 days after he had openly
and forthrightly notified his immediate supervisor, White,
and simultaneously asked him to pass the word on to the
shift supervisor, Ervin, that he had signed a union authori-
zation card and "would back the Union" as much as he
could. Pittman's troubles started immediately thereafter.
That work night he was kept under close surveillance by
Ervin who even timed him on his lunch break. The next
work night Pittman took four of his fellow workers to White
to tell him that they had all signed union cards and that they
would file unfair labor practice charges against the Compa-
ny if Ervin trailed them as he had him.
Two days later White called Pittman into his office to tell
him that he was being discharged "for threatening fellow
employees" and to tell him "and that's all I am going to tell
you." But the written notice of "Discipline Action" Pittman
received thereafter stated that he was being discharged for
several reasons , to wit "threatening fellow employees,-
vulgar language, neglect of work," and in that order.
I find and conclude that all of these reasons for Pittman's
discharge are pretextual and that the genuine reason for his
termination was his open and forthright notice to manage-
ment that he had signed a union card and would thenceforth
back the Union as much as he could, contrary to the
Company's published opposition to having unions at its
Gaffney plant as set forth in its "Employees Handbook."
It is significant that White in discharging Pittman told
him only that he was being discharged "for threatening
employees," and that this was all he was going to tell him.
Similarly it is significant that in Pittman's "Disciplinary
Action" the first reason given for his termination was for
"threatening fellow employees" and the related reason that
he had engaged in the use of "vulgar language ." The "Ac-
tion" sets forth "neglect of work" only as a secondary cause
of Pittman's discharge although at the trial and in its brief
Respondent seeks to show that "neglect of work" was the
principal reason for Pittman's discharge.
Although the first reason given in Pittman's "Disciplinary
Action" for his discharge was for "threatening fellow em-
ployees," the only evidence presented by Respondent on
this related to a single fellow employee, the aforementioned
Sandra Gilfillan, and not to "employees" as stated in the
Action. Furthermore that alleged threat was strictly related
to Pittman's evident efforts to get Gilfillan interested in the
Union. After she repulsed his prounion efforts, Gilfillan
testified that Pittman in effect indirectly threatened her by
stating in her presence to two other prounion fellow employ-
ees that, "We'll make it so God damn hard on her she will
wish she had signed the [union] card." As heretofore indi-
cated, I do not credit her testimony that Pittman made that
remark because her testimony as a whole did not give the
impression of sincerity and impartiality, but on the contrary
seemed aimed at making Pittman's discharge stick in order
to aid her employer in trying to keep the Union out of the
plant in line with her own antiunion sentiments.
In addition I discredit the threat attributed to Pittman
because Respondent, apparently fearful that it would not
stand up to confrontation, did not confront Pittman with it
at the time of his discharge and for the further reason that
Respondent in Pittman's "Disciplinary Action" misrepre-
sented that alleged threat to a single employee as threats to
multiple employees.
For these reasons I find that Respondent seized upon the
alleged but discredited threat by Pittman to Gilfillan as a
pretext for his discharge as the first excuse it could find for
his termination after Pittman's then very recent notice to
management that he had signed a union card and would do
everything he could do to organize the Gaffney plant.
At the trial Respondent sought to change the emphasis
for Pittman's discharge from his alleged threat to Gilfillan
to the emphasis of "neglect of work" as the primary reason
for his discharge although "neglect of work" is listed last on
his "Disciplinary Action" as a cause for his discharge and
that reason was not even mentioned by Supervisor White to
Pittman when he discharged him.
Even if the charge of "neglect of work" in the 2 nights
prior to his discharge were true, Pittman's abrupt discharge
under the circumstances of the case raises an inference that
he was discharged because of his union activities and not
because of "neglect of work." Among these circumstances
are the following facts. The discharge took place within 4
days after Pittman had notified his immediate supervisor,
White, that he had signed a union card and would thence-
forth do all he could to back the Union. At the time of this
notification, Pittman also told White that notwithstanding
his union interest he would strive to do even a better job
than he had done in the past and was in turn told by White
that he could not do a better job than he had been doing.
When discharged, Pittman had been employed at the Gaff-
ney plant for about 2 years and had demonstrated his com-
petence by progressive promotions from a B operator to an
A operator to a temporary trainee instructor. In addition,
the Company at the time of Pittman's discharge had a sub-
THE TIMKEN COMPANY 507
stantial investment in Pittman as it had sent him at its own
expense to a technical school for training in the operation
of grinding machines for a period of 14 weeks . In the 2 years
Pittman worked for the Company, he had never been crit-
icized on his job performance prior to the time he had been
discharged . These facts in themselves support an inference
that Pittman was discharged because of his union activities
and not for "neglect of work."
Moreover , the record as set forth in the findings above do
not even sustain Respondent 's contention that there was
any "neglect of duty" by Pittman on the 2 work nights prior
to his discharge . It is claimed that on those 2 nights Pittman
failed to help the trainee operators with production prob-
lems on their machines in line 3 of the Cone Grinding
Department . The man who would know most about this was
Pittman 's immediate supervisor , White, but he was not
called as a witness by Respondent , although he was still in
the employ of the Company at the time of trial. I infer from
this that White refused to testify against Pittman, who only
4 days before Pittman 's discharge had told him he could not
do a better job than he had been doing. But wholly aside
from this inference , the credited testimony of Pittman inde-
pendently shows that on the 2 nights before his discharge
he had been directed to spend most of his time with the
machine operators on lines I and 2 because of the troubles
they were having with their machines, but that he neverthe-
less gave all the assistance he could to the trainee operators
on line 3 whenever they asked for assistance except in one
instance when his duties on other lines prevented it.
It is again noted that "neglect of work" was given only
as a secondary cause for Pittman 's discharge , that White in
his oral discharge of Pittman did not mention "neglect of
work" as a cause for his discharge , that Pittman had a good
record as a worker for virtually all of the 2 years he worked
for Respondent prior to his discharge , that his discharge
took place only 4 days after he had notified management
that he had signed a union card and would work for the
Union all he could to help it organize the Gaffney plant, and
that Pittman 's discharge -took place against the background
of the Company's publicized opposition to having any
unions at its Gaffney plant.
In summary I find and conclude that Respondent dis-
criminatorily discharged Pittman because of his union ac-
tivities in violation of Section 8(a)(3) of the Act and that his
discharge , as that of Nicholson 's at about the same time,
was part of Respondent 's plan to root out all well known
union activists at its Gaffney plant under elaborate pretexts
in line with its publicized policy against having any unions
at that plant.
C. Alleged Discriminatory Discharge of
Joe Stephan Guyton
Joe Stephan Guyton, referred to in the complaint and
generally known as Steve Guyton, was employed by Re-
spondent at its Gaffney plant from October 25, 1971, to
March 24, 1973, when he was discharged. His job was that
of a "B" machine operator on lines 4 and 5 in the
Company's aforementioned Cone Grinding Department.
He worked on the day shift under Supervisor Robert Pat-
ton, a company employee for some 17 years. Guyton
worked in a work area over which Vernon Griffin was the
"A" or senior operator , but not a supervisor . Like all other
"B" operators in Griffin 's work area , Guyton was under
admitted instruction to notify Griffin whenever he wanted
to leave his work area so that Griffin could either shut down
Guyton's machine , or watch it himself while it was operat-
ing, or get another "B" operator to watch it in Guyton's
absence.
The Company denies that Guyton was discriminatorily
discharged because of his union activities . It contends that
it had no knowledge of Guyton 's union activities at the time
of his discharge and that he was discharged for repeatedly
being away from his work area despite warnings that such
conduct could result in his termination . The Company fur-
ther contends that Guyton's discharge was triggered by his
absence intermittently from one of his machines for over an
hour on the last day of his employment during which the
machine malfunctioned and produced 241 totally defective
parts out of the 2 ,256 parts produced that day and that the
241 defective parts could have been avoided if Guyton had
stayed with the machine.
The credited and virtually undisputed testimony of Su-
pervisor Patton shows that for a period of 6 months prior
to Guyton's discharge he had occasion to reprimand Guy-
ton a number of times about his "roaming away from his
job, and talking to other employees ," contrary to instruc-
tions to stay with his machines except for necessary breaks.
In the early fall of 1972, he gave Guyton his first oral warn-
mg that he was to stay in his work area . On October 10,
1972, he gave Guyton what he called his last oral warning
to stay in his work area and placed a memorandum thereof
in Guyton 's personnel file which reads , "Last oral warning.
Stay in your work area and quit visiting ." Some 6 days later
on October 16 Patton gave Guyton a formal written warn-
ing on its usual company form entitled "Record of Disci-
pline Action" which cites Guyton for the "Offense" of
"Failure to stay on job," and states the "Discipline" to be
"Written warning. Further violation of this offense may
cause your discharge ." I find this to be a mere formalization
of the oral warning given by Patton to Guyton on October
10 as there is no testimony that the written warning was
given for a further or additional violation of the order that
he stay on his job . Guyton signed the warning without pro-
test. On February, 1973, Patton reviewed with Guyton his
tendency for being out of his work area too much and doing
too much visiting and asked him to do a better job.
Griffin, the "A" operator, corroborated Patton's testimo-
ny that Guyton for some months prior to his discharge was
given to walking away from his machines on lines 4 and 5
and talking to operators on other lines while his machines
ran unattended . He testified that Guyton sometimes left his
work area without notifying him. It is company policy to
keep all machines running at all times and it was Griffin's
responsibility to see that the machines are kept running and
to assist "B" operators having trouble with their machines.
While the machines ran automatically, they had to be
watched more or less constantly by their operators for mal-
function which could cause the production of imperfect or
even useless products or cones called "scrap ." Scrap is a
cone so badly malformed that it cannot be corrected by
reworking and must be sent back to the mill for resmelting.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guyton's last day of work at the plant was March 23,
1973. That day Guyton was having difficulty with one of his
machines because it was malfunctioning from time to time
and at such times producing scrap. Guyton and Griffin
worked together several times on the machine to get it going
again properly, but after a bit it would again malfunction.
Because of this difficulty Griffin asked Guyton to stay more
closely to the machine that day. Guyton nevertheless was
away from his work area off and on a little over an hour.
That same day Guyton's malfunctioning machine produced
247 pieces of unusable scrap out of its total production for
the day of 2,256 pieces. It is not normal for such machines
to produce scrap when they are functioning properly. For
a number of days preceding his discharge, Guyton's ma-
chine, then functioning perfectly, produced no scrap.27
Near the close of that same workday, March 23, Supervi-
sor Patton called Guyton into his office and told him that
consideration was being given to discharging him because
he had been seen out of his work area several times that day
and because he had run over 200 pieces of scrap that same
day. He also told Guyton that "when we reach a decision
we would let him know." Although there is no direct testi-
mony thereon I infer and find from the record, that Patton,
before speaking to Guyton, had reported Guyton's absences
from his work area and the scrap from his machine to his
own supervisor, Charles Perkins, the day-shift superinten-
dent. Perkins is the same supervisor who had testified exten-
sively in this proceeding for the Respondent and against
employees John Francis Nicholson and Bard W. Pittman
found above to be discriminatees 28 Although Perkins did
not testify against Guyton as he did against Nicholson and
Pittman, it was Perkins' decision as will be shown below that
caused Guyton's discharge.
Later that day after work at about 4:30 p.m., Guyton,
anxious to know his fate, telephoned Patton at his home to
find out if any decision had been reached about his dis-
charge. The record leaves no doubt that in that telephone
conversation Guyton clearly put Patton on notice that he
was a union supporter. This appears from both the testimo-
ny of Guyton and Patton. Guyton's testimony shows that
in that telephone conversation he asked Patton whether he
"was going to be discharged because I was a union member,
because I had done signed a card." Patton's testimony
shows that he told Guyton that no decision had been made
as yet on whether he was to be discharged and that Guyton
then asked him, " . . . is it because I'm in favor of the
union." Either version put the Company on notice of
Guyton's support of the Union in its drive to organize the
Gaffney plant.
27 The findings in the above two paragraphs are based upon the credited
testimony of Griffin and Willine Evans, a product inspector , who that day
checked the products coming off of Guyton's machine.
28 Perkins ' testimony against discnminatee Nicholson appears in the tran-
script at pages 536 to 541 and is described in the section of this Decision
above that deals with the discharge of Nicholson. Perkins' testimony against
discnmmatee Pittman appears in the transcript at pages 541 to 547 and 593
to 601 . In the section of this Decision dealing with the discharge of Pittman
that part of Perkins ' testimony which appeared cumulative was not men-
tioned, but findings of fact were made on that portion of his testimony
relevant to Pittman that related to the number of trainee operators who were
working the night shift at the time of Pittman 's discharge but without mention
of Perkins' name in that connection.
That evening Patton contacted Perkins, the aforemen-
tioned day-shift superintendent, to find out if he had
reached a decision on Guyton's discharge. Although Patton
did not testify that he informed Perkins that Guyton had
inquired whether his discharge was being considered be-
cause he was "in favor of the union," I infer and find that
this information was conveyed by Patton to Perkins because
it was well known to all management personnel that the
Company was opposed to having any unions at the Gaffney
plant as any reading of its "Employee's Handbook" shows,
and as the plant's general manager, Duffield, had deemed
it necessary only 3 days prior thereto to give speeches to
each of the three shifts explaining the Company's reasons
for being opposed to having a union at the Gaffney plant.
Guyton was discharged the next morning, March 24,
1973. His "Record of Disciplinary Action " states that he
was being discharged for the "Offense," "On several occa-
sions you have been warned that continued violations of
company rules and practices would result in your dis-
charge." The action was signed by Patton and appears to
bear the initials of Perkins. Patton's testimony clearly shows
that he terminated Guyton on instructions from Perkins.
Guyton's credited testimony shows that he signed a union
card about 2 weeks prior to his discharge and that he had
solicited support for the Union from at least 30 of his fellow
workers, but there is no direct evidence that the Company
had any overt knowledge of such union activity by Guyton
at the time of his discharge.
However, from the findings above, the record leaves no
doubt that just prior to Guyton's discharge Respondent
gained direct and overt knowledge from Guyton himself
that he had signed a union card and was in favor of the
Union. From Guyton's credited and undisputed testimony
that he had solicited union support from not less than 30 of
his fellow employees, I infer and also find that Respondent
suspected or gained knowledge of Guyton's union activity
long before his discharge from the mere fact that his union
solicitations were so widespread among the Company's em-
ployees as to foreclose the possibility that word of Guyton's
efforts to organize the Gaffney plant would not have
reached Respondent prior to his discharge. The record here
shows that Respondent was very alert to any attempts to
organize its Gaffney plant.
Discussion and Conclusions
Guyton's discharge poses the question of whether Re-
spondent used Guyton's proven tendency to leave his work
area for brief visitations with other employees contrary to
instructions to stay with his machines, as a pretext for his
termination because of his union activity.
From the record as a whole, I find and conclude that
Respondent seized upon this tendency of Guyton's to wan-
der away from his work area as a pretext for his discharge
and that the real reason for his discharge was his suspected
or known efforts to organize the plant in the 2-week period
that preceded his termination.
As shown above, Respondent is publicly opposed to hav-
ing any unions at its Gaffney plant. Starting about March
12, 1973, the Union commenced a strong effort to organize
the Gaffney plant. On March 20, the plant's general manag-
THE TIMKEN COMPANY 509
er, Duffield, very much alarmed about the progress the
Union was making, held separate meetings with the three
shifts in which he tried to persuade them that it would not
be in their best interests to have a union in the plant.
Following these speeches by Duffield , Respondent dis-
charged the three dischargees here involved, Nicholson,
Pittman, and Guyton. These three employees had one thing
in common : they were all union supporters actively engaged
in soliciting union authorization cards from their fellow
workers . The record as a whole shows that Respondent
sought to eliminate these three prime sources of solicitation
in the Gaffney plant as soon as incidents could be devel-
oped to give their discharges the color of justifiable business
cause . As the findings and circumstances relating to the
discriminatory discharges of Nicholson and Pittman have
been fully set forth above , they will not be repeated here.
I find that Guyton was similarly discriminatorily dis-
charged because of his widespread solicitation of union sup-
port from his fellow workers . Respondent contends that the
immediate cause for Guyton's discharge was his wandering
away from his work area off and on for a period of about
an hour the day before his discharge. It further contends
legitimacy for Guyton's discharge because he had been rep-
rimanded for similar conduct several times long before the
Union came on the scene and because it claims it had
no knowledge of Guyton's union activities prior to his
discharge. I find and conclude from the record as a whole
that these were pretextual reasons for Guyton's discharge. I
find that because these pretextual reasons were preexisting,
readymade , and at hand at the time the Respondent de-
termined to rid itself of union activists Nicholson , Pittman,
and Guyton , it selected Guyton for its first discriminatory
discharge on March 24, 1973. On the other hand, in the
cases of Pittman and Nicholson of whose open and notori-
ous union activity the Company had admitted knowledge
and who had no disciplinary warnings prior to the time the
Union came on the scene , it took Respondent several more
days to develop pretextual reasons for their discharges on
March 27 and March 28, 1973, respectively.
However, even with respect to Guyton the record is un-
disputed that the Company knew at the time it discharged
him that he was a union activist because Guyton himself
had asked his immediate supervisor , Patton, only the day
before his termination, whether he was under consideration
for discharge because he favored the Union. As heretofore
indicated , I find that this last minute knowledge of Guyton's
involvement with the Union was merely a confirmation of
the leaks or information received by Respondent from other
employees of Guyton's activity from his widespread union
solicitation from at least 30 fellow employees at the plant.
Such widespread union activity cannot be hidden from a
company such as Respondent which is openly hostile to
having any unions at its plant.
I do not attach the significance Respondent seeks to at-
tach to the fact that one of Guyton's machines produced 247
pieces of scrap on the last day he was employed at the plant
as a further cause for his discharge . The evidence shows that
the machine was acting up that day even though Guyton
and Griffin, the "A" operator," working together, got it to
working properly again from time to time that day. The best
of machinery does get out of order . It is far more significant
that in the 5 days preceding Guyton 's discharge , when the
machine was working perfectly , Guyton had no slag from
the machine. With the investment Respondent had in
Guyton's training and experience, I find that Respondent
would not have discharged him for the production of so
little slag from a machine that was acting up if he had not
been actively engaging in efforts to organize the plant.
From all the evidence of record , I find and conclude that
Guyton was discriminatorily discharged in violation of Sec-
tion 8(a)(3) of the Act because of his union activity.
H. Alleged Discriminatory Warning to
Employee Lloyd Patterson
Lloyd Patterson at the time of trial had been a "B" opera-
tor in the Green Area of the Gaffney plant for some 14
months . On March 29, 1973, Patterson arrived at the plant
grounds about 30 minutes ahead of his shift starting time of
7 a.m. and spent the next 20 minutes passing out union
literature at the plant gate without incident or interference
from management "whatsoever."
He testified, however, that starting that morning or
March 29 the Company began what he believed to be a
course of discrimination against him because of his union
support.
He testified that shortly after he got to his work area that
morning he was ordered by his immediate supervisor, Dan-
iel Conrad , to clean up the production line, to wipe off the
machines , and to pick up the metal cups or bearings while
the machines were kept running . He testified that while
some of this cleanup fell within his normal duties, he had
never before had an order for cleanup as extensive as the
one Conrad gave him and his coworkers that morning in
that they were ordered to pick up metal cups ( bearing races)
"down where the janitor cleans up , not us." Although Pat-
terson readily admitted under cross -examination that it was
his duty and not that of the janitor to pick up the metal cups
behind and in and around the machines where the janitor
could not reach them with his cart-like cleaning apparatus,
I find that his cross-examination did not shake Patterson's
direct and credited testimony that on the morning in ques-
tion when he had been seen passing out union literature at
the plant gate, Supervisor Conrad ordered him to do a far
more extensive cleanup job than he had ever done before
while still operating the machines.
On April 4, 1974, Department Superintendent Stan Smith
under whom Supervisor Conrad works , gave Patterson an
oral warning that he was producing too much scrap.
Patterson's credited testimony shows that at the time he got
that oral warning there were other employees in his depart-
ment who were making more scrap than he did but did not
receive any warnings. Patterson 's further credited and un-
disputed testimony shows that Smith admitted to him that
he was "not the only one making scrap in the department."
(Smith was not called as a witness to deny this.) Patterson
protested the oral warning by telling Smith that "the only
reason he was giving me this was because of my union
activities , and that I had never received nothing like this
before because of scrap."
The next day, April 5, Smith gave Patterson a written
warning for "harassing . . . people around my work
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area." 29 The exact phrasing of that wntten warning is not
of record as neither General Counsel or counsel for Respon-
dent offered it in evidence. As aforenoted Smith did not
testify in this proceeding, but Conrad testified that Patter-
son was given the written warning for harassing a fellow
employee, Ralph Jennings, who is in daily contact with
Patterson because Jenning's job is to lubricate twice a day
the machines that Patterson operates in the Green Area.
The record shows that Patterson for several days on and
prior to April 5 was riding Jennings for having sent the
Union a letter asking it to return to him the union authoriza-
tion card he had previously given the Union and that he also
frequently engaged Jennings in discussions and even argu-
ments about the importance of having a union at the plant.
On April 5 Patterson told Jennings that he was a second-
class worker because he would not support the Union and
this made Jennings so angry that he complained about the
pressure he was getting from Patterson to support the Union
to Departmental Supervisor Virgil Bryant, heretofore re-
ferred to in connection with other issues in this proceed-
ing.30 Bryant is in charge of all three shifts.
It was on the basis of this complaint from Jennings that
Superintendent Smith issued to Patterson the written warn-
ing concerning his harassment of fellow employees contrary
to company rules which is challenged under the complaint
as being discriminatory. Patterson admits that the conversa-
tions he had with Jennings in which he sought his support
for the Union took place during working time . I find, how-
ever, that these conversations took place while both men
were tending to their respective jobs in the same work area.
Discussion and Conclusions
Although the record leaves no doubt that Patterson was
harassing Jennings during worktime by pressuring him to
support the Union, that fact does not remove the serious
issue posed by the pleadings and the record of whether
Respondent used that harassment as a pretextual reason for
issuing to Patterson his written warning of April 5 in order
to discourage his union activities at the plant as openly
manifested by his handbilling of union literature at the plant
gate.
The record as a whole is convincing that the Respondent
used the Jennings incident as an excuse to issue a discrimi-
natory warning to Patterson. The evidence shows that Re-
spondent almost from the moment Patterson got to work on
29 There is a conflict of testimony as to who gave Patterson the written
warning Patterson testified that Smith called him into his office and person-
ally gave him the warning Conrad testified that he (Conrad) gave Patterson
the written warning I credit Patterson's testimony that Smith , the depart-
ment superintendent , was the one who gave him the warning ; I not only
credit Patterson on this but further credit his testimony that he told Smith
that it "wasn 't true" that he was harassing employees and that the only reason
he was doing this [ ix, giving him the written warning ] was because of my
union activities . " But by crediting Patterson 's testimony that he made
the above response to Smith, I do not at this point make any decision of
whether or not Patterson had been harassing any of his employees or that
Patterson was given the written warning because of his union activities
30 The above findings are based upon the composite testimony of Patter-
son, Jennings , Conrad, and Bryant
the morning of March 29, 1973, after his handbilling of
union literature at the plant gate, began to seek ways of
discriminating against him because of his union activity.
When he got to his work area he was almost immediately
directed by his supervisor for the first time in the 14 months
he had been on the job to do clean up work that normally
and regularly was performed by a janitor.
A few days later on April 4, 1973, he was given an oral
warning by Department Superintendent Smith that he was
producing too much scrap for the first time in his 14 months
on the job although other coworkers who were producing
more scrap than he was did not receive such warnings.
When the above findings are considered in the light of
Respondent's open hostility to having any unions in its
Gaffney plant and the numerous violations of Section
8(a)(l) and (3) found above, the record is convincing that
Respondent seized upon Patterson 's over active union solic-
itation of Jennings as a pretextual excuse for discriminating
against Patterson because of his union activity by issuing to
him a written warning here under discussion.
I find and conclude that the wntten warning issued by
Respondent to Patterson on April 5, 1973, interfered with
the rights guaranteed employees under Section 7 of the Act
in violation of Section 8(a)(1) of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce, and
the Union is a labor organization, within the meaning of the
Act.
2. By interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. By discharging John Nicholson, Bard Pittman, and
Joe Stephan Guyton because of their union activities, Re-
spondent engaged in discrimination to discourage member-
ship in the Union, thereby engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
. REMEDY
Having found that Respondent engaged in certain unfair
labor practices , I shall recommend that it cease and desist
therefrom and take certain affirmative action of the type
which is conventionally ordered in such cases as provided
in the recommended Order below, which I find necessary to
remedy and to remove the effects of the unfair labor practic-
es and to effectuate the policies of the Act. Because of the
character and scope of the unfair labor practices found, I
shall recommend a broad cease-and-desist order.31
[Recommended Order omitted from publication.]
31 N L.R B v. Express Publishing Company, 312 U S 426 (1941), N L R B
v Entwistle Mfg Co, 120 F 2d 532 (C A 4, 1941), Consolidated Industries,
Inc, 108 NLRB 60 (1954), and cases cited therein.