United Merchants & Manufacturers, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1987

284 N.L.R.B. 135 (N.L.R.B. 1987)

UNITED MERCHANTS

135
Conway Mill, a Division of United Merchants &
Manufacturers, Inc. and Amalgamated Clothing
and Textile Workers Union, AFL-CIO, CLC.
Case 11-CA-11153
8 June 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 4 April 1985 Administrative Law Judge
Robert A. Gritta issued the attached decision. The
Respondent filed exceptions and a supporting brief,
to which the Charging Party filed an answering
brief. The Charging Party also filed exceptions, a
supporting brief, and a motion to strike the Re-
spondent's exceptions.1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions as modified and to adopt the recom-
mended Order as modified and set forth in full
below.
The judge found and we agree that the Respond-
ent violated Section 8(a)(1) of the Act by soliciting
employees to report on the union activity among
fellow employees and to recall their signed authori-
zation cards, and by restricting the movement of
employees because of their union activities. We
also agree with the judge that the Respondent,
through Personnel Director Tom Gilbert, Assistant
Plant Manager Ted Hagwood, Department Manag-
er Timmy Mishoe, and Supervisor Myers Floyd,
unlawfully interrogated employees about their
union activities and sympathies. 3 In concluding
The Charging Party moves to stnke the Respondent's exceptions on
the ground that they do not satisfy the requirements contained in Sec
102.46(b) and (c) of the Board's Rules and Regulations Specifically, the
Charging Party argues that the Respondent's exceptions "do not set forth
the questions of procedure, fact, law, or policy to which objection was
made, nor identify by precise citation those portions of the record relied
upon" Although the Respondent's exceptions do not fully comply with
Sec. 102.46(b) and (c), we accept them.. The Respondent's bnef sufficient-
ly designates the portions of the record relied on and the grounds for the
exceptions. See, e.g., Fiber Industries, 267 NLRB 840 fn. 2 (1984), Gid-
dings & Lewis. Inc , 240 NLRB 441 fn. 2 (1979) Accordingly, we deny
the Charging Party's motion to strike.
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
3 In agreeing with the judge that the Respondent violated Sec. 8(a)(1)
by interrogating its employees about their union activities and sympa-
thies, we note that although several employees were part of an informal
employee committee there was no evidence that the employees involved
made themselves known to the Respondent as open and active union sup-
that the Respondent unlawfully interrogated sever-
al employees, the judge found that Floyd asked
employee John D. Blanton if representatives of the
Union had visited his house. Blanton credibly testi-
fied that Floyd questioned him after Blanton had
told a coworker that some people from the Union
had been out to see him. Floyd then said to Blan-
ton: "Why didn't you tell me that? There is a man
that has been to see you. Has the man been to see
you?" It is clear from the circumstances surround-
ing this conversation that when Floyd asked about
"the man" he was referring to the union organiz-
ers. Blanton further testified a that short time later
Carding Department Manager Pat Carroll asked
him if "the man" had been to see him. Although
the judge discussed the incident, he made no spe-
cific finding that Carroll's interrogation was unlaw-
ful. We fmd that, as was the case with the conver-
sation between Floyd and Blanton, Carroll unlaw-
fully interrogated Blanton about his union activity.
We agree with the judge that the Respondent
unlawfully created the impression of surveillance
when Supervisor Mishoe told employee Susan
Sarvis that he had heard that she had a union meet-
ing at her house. 4 We further find that the Re-
spondent violated Section 8(a)(1) when on 1 July
1983 5 Floyd asked John D. Blanton why he had
not told Floyd that representatives of the Union
had been to see Blanton and when Gilbert told em-
ployee Edna Blanton also on 1 July that he under-
stood that the union people had been out to see the
Blantons. The judge dismissed these allegations,
stating only that he found no substantial evidence
in the record to support them. 6 However, the
judge credited the testimony of John D. Blanton
and Edna Blanton that the above incidents oc-
curred. It is clear from the conversations between
Mishoe and Sarvis, Floyd and John D. Blanton,
and Gilbert and Edna Blanton that the Respondent
implied that it had received outside information on
porters within the meaning of Rassmore House, 269 NLRB 1176 (1984).
We further note that under all the circumstances, the Respondent's inter-
rogation tended to restrain, coerce, and interfere with rights guaranteed
by the Act. See Blue Flash Express, 109 NLRB 591 (1954). The Respond-
ent's questioning of employees took place against a background of numer-
ous 8(a)(1) and (3) violations The nature of the questions were specific
and in several cases connected with threats of or actual reprisals. In addi-
tion, employees were questioned by individuals with considerable author-
ity and responsibility . the Respondent's personnel manager, plant superin-
tendent, department manager, and supervisors See generally Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985).
4 In agreeing with the judge that the Respondent gave the impression
that employees' outside union activity was under surveillance, we do not
rely on his discussion of the small plant doctrine.
5 Unless specified otherwise, all dates are in 1983.
6 The judge dismissed the allegation referring to an incident involving
Gilbert on 30 June. As no allegation in the complaint includes a 30 June
incident, we conclude that the judge was referring to the allegation relat-
ing to Gilbert's conversation with Edna Blanton on 1 July.
284 NLRB No. 18
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the union activities of these three employees and
thereby gave the impression of surveillance.
The judge found and we agree that the Respond-
ent unlawfully threatened employees because they
engaged in union activity. Specifically, the judge
found that on 1 October Johnny Ray Blanton (J.
R. Blanton) was approached by Gilbert. J. R. Blan-
ton credibly testified that Gilbert asked him how
things were going, referring specifically to Gil-
bert's earlier request for information about the
Union. 7 When J. R. Blanton answered that he did
not know anything, Gilbert told him that because
the Respondent had rehired him 8 J. R. Blanton
owed the Company a lot. Gilbert then told J. R.
Blanton that the Respondent could phase out his
father's job and had done a favor by hiring his
brother.° The judge credited J. R. Blanton's testi-
mony that Gilbert told him that he knew that J. R.
Blanton had wanted to be a supervisor at one time
and by signing a union card had not shown a lot of
devotion to the Company. In concluding that the
Respondent threatened J. R. Blanton with a loss of
promotion, the judge found that Gilbert's message
to J. R. Blanton was clear: "foresake the union ac-
tivity or bear the consequences of such disloyal-
ty." 1° The judge also found that the Respondent
through Gilbert threatened employees by equating
their union adherence with disloyalty. Insofar as
this finding refers to the threat to J. R. Blanton
that he would not be considered for a promotion,
we find that these two allegations arose out of the
same incident and therefore constitute a single vio-
lation. However, we do find that by reminding
John D. Blanton in early July that the Respondent
had been good to Blanton by employing members
of his family and by indicating to J. R. Blanton on
1 October that the Respondent could phase out
John D. Blanton's job and had done a favor by
hiring Ronnie Blanton, Gilbert threatened the Blan-
tons for their union adherence."
7 The judge found that this earlier request for information, occurring
in June or July, constituted unlawful interrogation in violation of Sec.
8(a)(I)
8 After he quit his employment with the Respondent in 1976, J R
Blanton was rehired in 1979.
9 John D Blanton, mentioned above, is J. R Blanton's father J. R
Blanton testified that his brother Ronnie also worked for the Respondent
10 In reaching this conclusion, the judge indicated that Gilbert's com-
ments were unlawful "Din spite of the fact that Gilbert may have told
Johnny Ray Blanton that any consideration as a supervisor m the future
would not be hindered by his present pro-union sympathy."
" We note that in the section entitled "Additional Conclusions of
Law" the judge found that both Gilbert and Plant Superintendent Hag-
wood threatened employees However, in the body of his decision, the
judge dismissed the allegation in the complaint that the Respondent,
through Hagwood, had threatened employees by equating union adher-
ence with disloyalty. The judge also dismissed the allegation that the Re-
spondent, again through Hagwood, had threatened employees that their
continued activities on behalf of the Union would result in repnsals. In
light of our findings that the Respondent violated Sec. 8(a)(1) by threat-
ening employees, we need not resolve the ambiguity created by the
The judge found that the Respondent violated
Section 8(a)(1) by threatening its employees that if
they selected the Union as their collective-bargain-
ing representatives they would no longer have
direct access to management. We disagree. In find-
ing a violation, the judge credited Edna Blanton's
testimony. She testified that in mid-September Gil-
bert called her into his office and told her that if
the Union came in the employees would no longer
be able to talk to management about resolving
problems because they would have to go to the
union stewards instead. Unlike the judge, we do
not find that this statement violates Section 8(a)(1)
of the Act. The Respondent, through Gilbert, was
merely explaining in layman's terms that when a
statutory representative is selected, the relationship
that existed between the employees and the em-
ployer will not remain the same. There is no threat,
either explicit or implicit, in this statement. As the
Board recently observed in Tr-Cast, Inc.:"
Section 9(a) thus contemplates a change in the
manner in which employer and employee deal
with each other. For an employer to tell its
employees about this change during the course
of an election campaign cannot be character-
ized as an objectionable retaliatory threat to
deprive employees of their rights, but rather is
nothing more or less than permissible cam-
paign conduct."
The judge found that the Respondent violated
Section 8(a)(3) of the Act by issuing written repri-
mands14 to employee Susan Sarvis for staying off
the job too long and to employee Thurman White
for poor job performance and by discharging em-
ployee Diane Dunlap. In finding these violations,
the judge concluded that the General Counsel had
sustained his burden under Wright Line, 15 and that
judge Any additional findings of unlawful threats by Hagwood would
merely be cumulative and therefore would not affect our remedy Ac-
cordingly, we adopt the judge's dismissal of the allegations pertaining to
Hagwood's conduct.
12 274 NLRB 377 (1985) Although Tr-Cast involved objections to an
election, later cases have held that similar statements are not violative of
Sec 8(a)(1). United Artists Theatre, 277 NLRB 115 (1985), Michael's Mar-
kets, 274 NLRB 826 (1985)
Ibid.
14 The Respondent has a progressive disciplinary system, After a
verbal warning, the employee may be given a talk sheet for infractions in
one of three areas: attendance, job performance, and conduct After an-
other infraction in the same area, the employee is given a written repri-
mand. Talk sheets are not cumulative, but written reprimands are Ac-
cording to Gilbert, receipt of three wntten reprimands in any of the areas
in a 12-month period automatically leads to termination All talk sheets
and written reprnnands are expunged from the employee's files after 12
months
18 251 NLRB 1083 (1980), enfd 662 Fld 899 (1st Cu.' 1981), cart
dented 455 U 5 989 (1982), approved in NLRB v. Transportation Manage-
ment Corp, 462 U S 393 (1983)
UNITED MERCHANTS 137
the Respondent failed to rebut the General Coun-
sel's prima facie case." Although we agree with
the judge that the Respondent unlawfully issued
written reprimands to Sarvis and White, we do not
agree that Dunlap's discharge violated Section
8(a)(3).
Dunlap was discharged after she received her
third written reprimand in 12 months. As the judge
found, within the relevant 12-month period,
Dunlap had been given a written reprimand on 1
August for unexcused absence, a talk sheet on 8
September for stacking work," a second written
reprimand on 3 October for tardiness, and a third
written reprimand on 12 October again for stacking
work. As more fully set out in his decision, the
judge found that the General Counsel made a
prima facie showing that Dunlap's protected activi-
ty was a factor in the Respondent's decision to
issue her a third reprimand, which led to her subse-
quent discharge. The judge also found that the Re-
spondent did not demonstrate that its conduct
would have taken place even in the absence of
Dunlap's protected activity. For the following rea-
sons, we find that the Respondent rebutted the
General Counsel's case.
The Respondent presented evidence that its rule
against early creeling or stacking work was based
on sound business practices and to avoid produc-
tion problems and waste. The Respondent main-
tained that it routinely enforced this work rule, as
evidenced by the issuance of several talk sheets for
this infraction. The Respondent pointed in particu-
lar to the talk sheets issued to Dunlap and employ-
ee Rosie Lewis on 8 September. According to the
Respondent, in view of its clear policy against
early creeling and automatic progressive discipli-
nary procedure, it would have issued Dunlap a
third reprimand and discharged her, even in the ab-
sence of her protected activity. The judge rejected
the Respondent's contention and found that not all
employees are disciplined in writing each time the
work is stacked and that more experienced opera-
tors, such as Dunlap, are given leeway in creeling
early. The judge found that although the Respond-
18 In discussing the test under Wright Line, supra, the judge correctly
stated that the General Counsel must first establish a prima facie case that
protected activities played a role in the employer's decision. We note,
however, that once the General Counsel has established a pnma facie
case, the burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of the protected con-
duct. Id at 1089.
57 According to the Respondent, the open-end spinning department
utilizes a standard creeling procedure whereby an operator must com-
pletely creel (take off) 50 cans of sliver on one side of the spinning frame
at the point when 5 cans of sliver out of the 50 can section next to the
frame run completely out of stock When an operator creels early or
before five cans have run out, he or she must place an emptying can on
top of a full can and tie the ends together so the machine can continue
running slivers from the two cans, hence the term "stacking work."
ent admitted that stacking work had always been a
problem it had not always been unacceptable pro-
cedure. The judge further found that the Respond-
ent's disciplinary procedure did not require that
Dunlap be given a third reprimand. According to
the judge, if it had not been for Dunlap's protected
activity the Respondent would have only given her
a verbal warning as it had done with other employ-
ees for the same or similar infractions. We disagree.
There is no dispute that at the time the Respond-
ent issued Dunlap the 12 October reprimand for
stacking work she had been creeling early. Nor is
there any dispute that all employees who receive
three written reprimands in a 12-month period are
automatically discharged. The issue that must be
considered in evaluating the Respondent's conten-
tion that it would have discharged Dunlap even in
the absence of her protected activity is whether the
Respondent's disciplinary system was consistently
applied.
The judge agreed with the arguments by the
General Counsel and the Charging Party that the
decision to issue a written warning either in the
form of a talk sheet or reprimand is made at the
discretion of the supervisor. However, the Re-
spondent maintained that it applied one set of rules
in a uniform manner in disciplining employees. The
judge disagreed. He concluded that the Respondent
applied its disciplinary system inconsistently. In
support of this, the judge pointed to the testimony
of Spinning and Twisting Department Manager
Timmy Mishoe.
Mishoe testified that he has counseled operators
about stacking work on numerous occasions and
did not issue talk sheets or reprimands automatical-
ly to employees for stacking work. Rather than dis-
cipline the employee, he would simply discuss the
problem. Mishoe also testified that before he issued
written talk sheets for stacking work he would
consider whether the problem had previously been
discussed and the employee counseled. Mishoe tes-
tified that he talked with all the operators, includ-
ing Dunlap, on the proper creeling procedure.
When, on 8 September, Dunlap and Lewis were
issued talk sheets for stacking work, Mishoe again
reviewed the proper procedure with Dunlap and
covered the problems that could occur if the job
was not performed correctly. Further, Personnel
Director Gilbert testified he would issue talk sheets
or reprimands only after he was satisfied that the
employee had been counseled.
In Dunlap's case, it is clear that she was coun-
seled on proper creeling procedure both before and
at the time she received the talk sheet on 8 Septem-
ber. By the time Dunlap received the 12 October
reprimand, she had already been verbally warned
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about creeling early. Contrary to the judge, the tes-
timony that employees were counseled before they
were disciplined in writing is consistent with the
Respondent's position that it uniformly applied its
disciplinary system. It is clear that once an employ-
ee had been counseled on the proper procedure,
the issuance of a written reprimand consistently
followed a talk sheet in the same area. Further, the
Respondent presented evidence establishing that
employees routinely received written reprimands
after the issuance of one talk sheet in a particular
area. We therefore find that once a talk sheet was
issued for a particular infraction the Respondent
was consistent in issuing a written reprimand for a
subsequent infraction.
The General Counsel attempted both during the
hearing and in the posthearing brief to amend the
complaint to include allegations that Dunlap's first
and second written reprimands were unlawful. The
judge denied this amendment. No exceptions were
filed to this ruling. Further, the General Counsel
did not allege or argue that Dunlap's 8 September
talk sheet for stacking work was discriminatory.
Thus, at the time Dunlap received her third repri-
mand for stacking work, she had already received
two prior written reprimands and a written talk
sheet for the identical infraction. Given that the
first two reprimands have not been shown to be
unlawful, that the 8 September talk sheet has not
been contested, and in view of our finding that the
Respondent applied its progressive disciplinary
procedure in a uniform and consistent manner, we
find that Dunlap's third reprimand in 12 months
and subsequent discharge were proper. Therefore,
the Respondent successfully rebutted the General
Counsel's prima facie case by showing that because
Dunlap received three written reprimands in 12
months it would have discharged her even in the
absence of her protected activity. Accordingly, we
dismiss this allegation in the complaint and modify
the Order and notice.
ORDER
The National Labor Relations Board orders that
the Respondent, Conway Mill, A Division of
United Merchants & Manufacturers, Inc., Conway,
South Carolina, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Soliciting its employees to report on the
union activity among employees and to recall their
signed union cards.
(b) Threatening employees because they have en-
gaged in union activity.
(c) Interrogating employees about their union ac-
tivities or the union activities of other employees.
(d) Giving employees the impression that their
union activities are under surveillance.
(e) Restricting employee movements about the
mill because of their union activity.
(f) Issuing disciplinary reprimands to its employ-
ees as a reprisal for their having engaged in activi-
ties on behalf of the Union.
(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Remove from its files any references to the
reprimands issued to Susan Sarvis and Thurman
White and notify them in writing that this has been
done and that evidence of this unlawful discrimina-
tion will not be used as a basis for future personnel
actions against them.
(b) Post at offices in Conway, South Carolina,
copies of the attached notice marked "Appen-
dix." 18 Copies of the notice, on forms provided by
the Regional Director for Region 11, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found.
18 If 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 Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
UNITED MERCHANTS 139
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT solicit our employees to report on
union activity.
WE WILL NOT solicit our employees to recall
their signed union cards.
WE WILL NOT threaten our employees because
they engage in union activities.
WE WILL NOT interrogate our employees about
their union activities.
WE WILL NOT give employees the impression
that their union activities are under surveillance.
WE WILL NOT restrict the movement of employ-
ees about the mill because of their union activities.
WE WILL NOT issue discipline to our employees
because they engaged in union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL notify Thurman White and Susan
Sarvis that we have removed from our files any
reference to their discriminatory discipline and that
the discipline will not be used against them in any
way.
CONWAY MILL, A DIVISION OF
UNITED MERCHANTS & MANUFAC-
TURERS, INC.
Jerome F. Connor, Esq., for the General Counsel.
David C Hagaman, Esq. and Carl H Treishman, Esq.
(Clark, Paul, Hoover, & Mallard), of Atlanta, Georgia,
for the Respondent.
Leon Schulzinger, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge. This
case was tried before me on March 19-23 and April 9-
12, in Conway, South Carolina, based on a charge filed
by Amalgamated Clothing and Textile Workers Union,
AFL-CIO, CLC (the Union), on December 9, 1983, and
a complaint issued by the Regional Director for Region
11 of the National Labor Relations Board on January 19,
1984. 1 The complaint alleged that Conway Mi11, 2 a Divi-
All dates are in 1983 unless otherwise specified.
2 Amended at heanng.
sion of United Merchants & Manufacturers, Inc. (Re-
spondent) violated Section 8(a)(1) and (3) of the Act by
interrogating employees about restricting employee
movement because of, creating the impression that em-
ployees were under surveillance due to, threatening em-
ployees with reprisals for engaging in and soliciting em-
ployees to report on union activities of employees em-
ployed by Respondent. In addition, several employees
were disciplined, including discharge, for engaging in
union activities. Respondent's timely answer denied the
commission of any unfair labor practices.
All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evi-
dence, and to argue orally. Briefs were submitted by the
General Counsel, Respondent, and the Union on Septem-
ber 5, 1984. All briefs were duly considered.3
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor on the witness
stand, and on substantive, reliable evidence considered
along with the consistency and inherent probability of
testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATION—PRELIMINARY CONCLUSIONS OF
LAW
The complaint alleges, Respondent admits, and I fmd
that Conway Mill, a Division of United Merchants &
Manufacturers, Inc. is a corporation engaged in the man-
ufacture of textiles in South Carolina with a facility in
Conway, South Carolina. Jurisdiction is not in issue.
Conway Mill, in the past 12 months, in the course and
conduct of its business operations, purchased and re-
ceived at its facility goods and materials valued in excess
of $50,000 directly from points located outside the State
of South Carolina. I conclude and find that Conway Mill
is an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The complaint alleges, Respondent admits, and I con-
clude and find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. BACKGROUND
Conway Mill has operated since 1974. The mill's prod-
uct is synthetic yarns made of polyester, rayon, and
acrylics in various blends, including specifications from
customers. The plant is comprised of four departments:
3 Counsel for the General Counsel Jerome F. Connor retired subse-
quent to the trial of this case and the brief was filed by counsel for the
General Counsel Ann B. Wall. Her motion to amend the complaint to
conform the pleadings to the proof with respect to minor variances is
granted Likewise, her motion to amend par 9(a) of the complaint to
change August I to October 7 is granted. The renewed motion to amend
par. 8 of the complaint to include the first and second reprimands given
to Dunlap is denied The General Counsel's separate motion to renew the
offer of proof made at trial and -move its admission as background evi-
dence is also denied. I cannot allow indirectly what I disallow directly.
The Charging Party's request that I consider Judge Brandon's decision in
Uniglass Industries, JD-(ATL)-67-84, a companion mill of Conway's
parent corporation, in my determinations herein is denied.
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
carding, spinning, twisting and winding, and mainte-
nance. The work force consists of approximately 260 em-
ployees and 28 supervisors, working two shifts in several
departments. All employees receive an employee hand-
book when hired and attend scheduled shift meetings de-
voted to production and selected personnel problems
such as the progressive discipline procedure.
Mill management on June 7 observed union represent-
atives outside the mill gate. The following day several
employees informed management that the Amalgamated
Clothing and Textile Workers Union was visiting em-
ployees in an attempt to organize the mill employees.
Mill management and supervisors met June 21 to discuss
the organizing drive and to determine countermeasures.
That same afternoon employee group meetings began
and concluded the following day. After the employee
meetings concluded, management sent a letter to all em-
ployees containing questions about unions and manage-
ment's response to those questions. In addition, a copy of
a union authorization card was posted on the employee
bulletin board with explanatory remarks appended. No
further employee meetings or distributions were imple-
mented until January 1984. All pertinent testimony is
summarized below.
III. THE UNFAIR LABOR PRACTICES
Tom Gilbert testified that he has been personnel man-
ager of the mill since 1974. Gilbert has the responsibility
of the hiring process for the hourly work force and im-
plements the progressive disciplinary system. The disci-
pline consists of a written talk sheet and a reprimand.
Talk sheets are given for the first infraction in one of
three areas. The three areas are attendance, job perform-
ance, and conduct. Second infractions in the same area
merit written reprimands. Whereas talk sheets are not ac-
cumulative in the progression of discipline, the repri-
mands are. Once an employee has received a talk sheet,
the next step is a written reprimand whose number is de-
termined by previous reprimands for whatever rule or
area infractions. Any employee can only accumulate two
reprimands in a 12-month period. The third reprimand
within the 12-month period carries with it automatic ter-
mination: All talk sheets and reprimands are viable for a
12-month period and, barring cumulative disciplines, are
removed from the employee's file at the end of the 12-
month period. The entire procedure is contained in the
policy manual possessed by all supervisors. The stand-
ards applied to attendance, job performance, and conduct
are likewise contained in the policy manual for use by all
supervisors.
Gilbert stated that Diane Dunlap was terminated on
receipt of her third reprimand within a 12-month period.
Her third reprimand was for poor job performance,
whereas the first and second reprimands were for attend-
ance.
All employees receive an orientation from the person-
nel department, which includes an explanation of the
progressive discipline system. In addition, the employees
are reminded of the progressive discipline system in
scheduled shift meetings of employees. The single talk
sheet as the first discipline for any given infraction has
existed unchanged since the inception of the system. The
personnel department is the depository for all accumulat-
ed disciplines of all employees, particularly the repri-
mands. Any disciplinary questions are resolved by the
personnel department.
Supervisors give verbal counseling on many occasions.
A supervisor would never issue a written writeup with-
out having previously talked to the employee. Gilbert
decides in all cases when employees have had enough
verbal counsehngs and should be disciplined by receiving
a talk sheet or a reprimand. New employees have a train-
ing period of 8 weeks in which they are counseled on
the Company's employee benefits, rules, and policies, in-
cluding the discipline system consisting of oral warnings,
written warnings, and written reprimands. In January
1984, all employees were told that the mill discipline
would be changed to the extent that all discipline there-
after would be umbrellaed under three categories; job
performance, attendance, and conduct. The change in
categories was made to lessen the number of offenses to
cite an employee when rules were violated.
The plant's late rule is based on shift times of 8 a.m, 4
p.m., and 12 midnight. In open-end spinning, the two
shifts are 8 a.m. and 8 p.m. All employees are late if not
clocked in by shift time, but employees are not docked
for pay unless they clock in 8 minutes or more after
shift. Pay is docked in 15-minute increments. All employ-
ees get at least a 10-minute morning break, a 20-minute
lunch break, and a 10-minute afternoon break. All break-
times start when the employees leave the work station.
With regard to Diane Dunlap's third reprimand, Gil-
bert suggested to Hagwood and Mishoe that Dunlap be
sent home to allow time to thoroughly investigate Dun-
lap's discipline record to determine if in fact a third rep-
rimand was warranted. The following day Gilbert, Hag-
wood, and Mishoe met with Jeter Glenn to decide the
discipline for Dunlap. Dunlap was not discharged for
violating the creeling procedure. She was discharged for
receiving her third reprimand. Gilbert stated that before
Dunlap was discharged he had no knowledge of her
union activity. Further, Gilbert said he never had any
conversation with Dunlap about the Union no did he
know of the union pamphlet Dunlap carried in the plant.
Gilbert explained that the mill has a policy of no solic-
itation, but no rule against solicitation. Whereas rules are
do's and don'ts for employees to follow and which can
be violated, policies cannot be violated because they are
administered by management.
Gilbert denied any conversations with John Henry
Smith, Edna Blanton, John Blanton, and Diane Dunlap
about the Union. Gilbert did have a conversation with
Johnny Ray Blanton about the Union on October 1. Gil-
bert testified:
Johnny Blanton works on the third shift, some-
where around 7:15 to 7:30 that morning when I was
walking through the plant, and went into the Re-
ceiving Warehouse. Johnny was taking some Bale
ties to a storage where they put the bale ties when
they are through with them. I walked up to Johnny
and I asked Johnny how things were going? He im-
mediately told me lousy. I said what do you mean
by lousy, Johnny? He told me, "that Conway Mill
UNITED MERCHANTS 141
treats employees like dogs." I said, well Johnny I
find that hard to believe. As long as I have known
you to make a statement like that. I find that hard
to believe. He said, "Well Gene DeWitt gives them
more to do than they can do. They had cut out one
of his Pre-blenders and he was having to do the
work of two people." I think that is the way that he
phrased it.
I said, well Johnny you need to talk to Gene
DeWitt or Pat Carroll about the fact that you feel
like you are overloaded. He told me that that would
do absolutely no good. I said until you are willing
to talk to them Johnny, I don't know how you can
get any relief on your job. At this time, I turned to
walk away from Johnny and he immediately
don't know, we were about two or three feet apart,
when he told me, I guess you heard that I signed a
Union Card? I said, "Yes, I have heard that
Johnny." He said that one of the reasons that I
signed up for the Union is because I think that with
a Union, employees will have more say so into
what's going on. I said well Johnny, I'm sorry you
feel that way. I said, "If you recall in Mr. Glenn's
meeting, back in mid-June, he instructed all employ-
ees that the car had been identified as Union orga-
nizers and that we would not conduct a Union
Campaign that we felt our employees 'were intelli-
gent enough to make their own decision. That we
felt it was their legal right to be for ox against the
Labor Union and this is our stand on a Labor
Union." This is where I told Mr. Blanton, I told
Johnny Blanton, I said, "you are telling me that you
signed a card, I appreciate your telling me."
Then he proceeded to tell me, he said, "I guess
you remember when I first worked here, some three
or four years ago, before you hired me back, when
I had got mad at a fellow employee and walked out
of the plant?" I said, "I remember quite well
Johnny." I said, "You remember, I am the one that
hired you back." He said, "Yes, I do." He said,
"You remember when I worked here the first time,
that you all had interviewed me for a supervisor's
job." I said that I remember well, I was in on the
interview with you, I conducted the testing, or
whatever the procedure was at that time for Super-
visOry Candidates. He said, "I guess the fact that I
told you I signed a Union Card will mean that I
will never become a supervisor at Conway Mill." I
said, "Johnny, that is completely incorrect." Wheth-
er an employee favors or disfavors a Union will
have absolutely nothing to do with the promotabi-
lity of that employee." I said, "your job perform-
ance is all that we evaluate with regard to becom-
ing a supervisor. You have already demonstrated
the fact that you were a good leader and your affili-
ation with or not with a Labor Union will have ab-
solutely no bearing on our consideration of you for
a future supervisory job."
And that, as best I can recall, concluded that
conversation and I walked on back out into the
plant.
Gilbert also did talk to John Henry Smith about
having retrieved his union card. Gilbert told Smith that
he had heard that Smith wrote a letter to get his card
back and Gilbert thanked Smith for getting his union
card back. Smith told Gilbert that he knew other em-
ployees who had signed union cards and he was going to
talk to them about getting their union cards back. Gilbert
was told by about 50 employees that the union represent-
atives had visited them at their homes, but he said no
employees told him of any coworkers involvement in the
campaign. Some employees offered the information to
Gilbert on more than one occasion.
Polly Anne Allen testified that she worked at the mill
for 9 years in the twisting department under the supervi-
sion of Curly Carter. Allen had been on maternity leave
from September to December 5 when she returned to
work. Although she was not counseled on overstaying
breaks by Carter either individually or in a group, her
coworkers did tell her that Carter counseled them while
she was on leave. Allen herself had not been counseled
by Carter about overstaying breaks for several years.
Allen always took breaks with Susan Sarvis, Virginia
Soles, and Carol Moody. On December 8, Carter, Sarvis,
and Soles took their morning break together. The break
began at 10:50 or 10:51 a.m. and was to last 10 minutes,
including the time to and from the breakroom. Employ-
ees can take their breaks at any time so long as their ma-
chines are running without difficulty. At 11 a.m., the
three left the breakroom to return to their machines. The
total break could have been 11 minutes allowing for time
to get to the breakroom and back to the machine.
Allen did not receive any discipline associated with
that morning break but was aware that Carter spoke to
Sarvis about the break policy. Allen later spoke with
Soles and Sarvis about the break. Soles said she also did
not receive any discipline associated with that morning
break but Sarvis said that she received a reprimand for
overstaying the break. Allen stated that she was not
aware of any employees being disciplined for overstaying
breaks by 1 minute.
Thurman White testified he has worked two employ-
ment periods at the mill since June 1976 as a doffer
under the supervision of Lloyd Stevens. White stated
that the rule on lateness or tardiness is written in the em-
ployee handbook received by all employees. The rule
allows a grace period of 7 minutes bekire an employee is
considered late or tardy.
During July, Respondent incorporated doffing teams
in the twisting department. Teams had two members and
both employees would doff a frame together, usually but
not always, one employee did one side and the other em-
ployee did the opposite side. Some, but not all, bobbins
had alternative colors that could be mixed when the first
color was exhausted.
In early August, White was told to report to his de-
partment manager's office Timmy Mishoe, the manager,
was present. Mishoe told White that employees were ac-
cusing White of pulling folks legs to join or sign up for
the Union. White said he only talked to folks about it to
get their opinion. Mishoe asked if White was smart
enough to make his own decisions. White responded that
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he was but finding out things from other people does
help. Mishoe asked if White had seen any violence on
TV associated with union strikes and picketing. White
said he had not, and Mishoe stated that unions have
those kind of things and those things we should not have
at the mill. White asked Mishoe who made accusations
against him and suggested that Mishoe get them all to-
gether and get things worked out. Mishoe replied that he
might do it. Mishoe suggested to White that he think
about the situation, and asked White what he thought
about the Union. White did not say he was for or against
the Union, but he did tell Mishoe that he would go with
the majority. Mishoe ended the conversation by saying,
"Well, I don't think we need that out here."
Several weeks later, White's supervisor, Stevens, came
to his work station and told him he was mixing bobbin
colors. White said the bobbins were not mixed. Stevens
said White had mixed bobbin colors contrary to the
rules. White explained that because the doffer team con-
cept was started, the doffers always mixed alternative
colors. He stated that at the time he mixed the two bob-
bins on the frame, both were named "yellow." One was
called "new yellow." Stevens explained that White had
mixed bobbin colors on a single frame, which he was not
supposed to do. White again said the team had been told
to use the alternative color when the main color ran out.
Stevens said, "Well, we are getting ready to change it
now." White asked Stevens if he wanted the alternative
bobbins taken off the frame he was working on. Stevens
said not to stop the machine once it is started. Later, Ste-
vens brought a written reprimand to White. The repri-
mand was for poor job performance and related to the
prior incident of mixed bobbin colors. The reprimand
stated that White had mixed bobbin colors after being
told not to. Stevens gave the reprimand to White for his
signature. White said, "Well, I am not going to sign that
because I asked you, 'Did you want me to take them off,
and you told me, no' and so White told Stevens he
would not sign the reprimand." White stated that after
the incident one of the bobbins was renamed to "mus-
tard." Also, his understanding of the discipline was that
an employee had to get two talk sheets before getting a
reprimand. Prior to this incident, White only had gotten
one talk sheet for job performance. White's coworker on
the doffer team was Michael Graham, and White stated
that Graham did not receive any discipline for the
mixing bobbins incident; however, White also confirmed
that only one side of the frame had mixed colors. White
places the incident in August, September, or October.
The reprimand he identified while testifying is dated Oc-
tober 7, 1983. White also acknowledged that Stevens
routinely reviewed the doffmg procedure with him in
May.
Michael Graham testified that he works in the twisting
department under the supervision of Lloyd Stevens.
Graham works with Thurman White on a doffing team.
The team system was incorporated to increase the pro-
duction because the machines run faster with two men
doffing. White and Graham are the only employees in
twisting on the second shift. Graham recalled the night
that White received a reprimand for mixing bobbin
colors. White had been called into Steven's office and
Graham had to wait until White returned to start a new
frame. When White returned, he told Graham that Ste-
vens had given him a reprimand for mixing regular
yellow and mustard yellow on one frame. Graham stated
that mustard is a substitute for regular yellow but both
bobbins should not be on one frame; however, while
working as a team and producing more they ran out of
bobbins more frequently and had to mix bobbins on one
frame. The frame that caused White to receive his repri-
mand was mixed on both sides. Both Graham and White
were mixing the regular yellow and mustard yellow bob-
bins on their respective sides. Stevens did not discipline
Graham for mixing bobbin colors, but the following
night Steven told Graham not to mix the regular yellow
with mustard anymore. Graham recalled that the wind-
ing department had been sending boxes of bobbins to
twisting that were mixed between the yellow and the
mustard. That creates problems for twisting because the
twisting employees use the empty bobbins supplied by
winding to doff their frames. Depending on scarcity of
bobbins, the boxes of bobbins may be transferred to bins
in the twisting department, and each bin should only
hold one color of bobbins. Whether the mixing of bob-
bins originates in twisting or winding is hard to ascertain.
When the machines are producing more than normal,
bobbins run out more frequently. Graham stated that
prior to Thanksgiving, the team doffing concept was
abandoned and the twisting department reverted to each
employee doffing an entire frame himself thereby reduc-
ing the production and speed of the machines.
Diane Dunlap testified that she began work at the mill
in 1975 and remained employed until her termination on
October 13, 1983. Dunlap worked in open-end spinning
on a 3-day 12-hour workweek. On October 12, the day
before her termination, Dunlap was called into Depart-
ment Manager Mishoe's office When Dunlap got to the
office, Mishoe told her she was being sent home. Dunlap
asked why she was being sent home and Mishoe said,
"You are not running your job the way it is supposed to
be run." Dunlap said she was running the job as she
always had. Mishoe said, "Well, you are not letting five
cans run off before you creel it." Dunlap said she was
doing the job the way she was taught to do it. Mishoe
said she was breaking the rules. Mishoe told Dunlap that
if she cared anything about her job to just go home and
come back tomorrow. Mishoe told Dunlap to wait a
minute and went out to get Ted Hagwood, assistant
plant manager. Hagwood returned with Mishoe and
Dunlap asked Hagwood why she was being sent home.
Hagwood said, "Well, Timmy told you that you were
breaking the rules, you are breaking the rules,if you care
anything about your job, go home and come back tomor-
row." Dunlap asked Hagwood for a written statement
Why she had to go home. Mishoe was reluctant to allow
Dunlap to go to the restroom alone or to other areas in
the plant. Dunlap was allowed to go to the restroom and
her locker under escort Mishoe wrote a statement that
she had engaged in poor job performance and asked
Dunlap to sign it. She refused to sign it and Mishoe
nOted on the statement her refusal. Mishoe then escorted
Dunlap from the plant and to her car. Mishoe told
UNITED MERCHANTS 143
Dunlap to come to the office at shift time the following
day.
The next day Dunlap returned to the plant and met
Mishoe, Hagwood, and Tom Gilbert in the personnel
office. Gilbert spoke, he said, "Diane, after careful con-
sideration we decided to give you reprimand #3 and you
are discharged, and you will never work at Conway Mill
again." Hagwood said, "We took you in and gave you a
good job." Dunlap questioned the goodness of the job
and Hagwood said, "Well, you don't have a job now."
Dunlap said okay and thanked them.
Dunlap testified that the union campaign started in
mid-June. Dunlap, on her days off, rode around with
Union Representative Hattie Jones, visiting employees'
homes and encouraging them to sign up for the Union.
Dunlap acted as Jones' navigator in finding the employ-
ees' homes. Dunlap assisted Jones from June until her
discharge in October. In total, Dunlap visited between 35
to 40 employees with Jones. In addition to the visits,
Dunlap read and distributed union literature in the plant
cafeteria. On at least one occasion, Dunlap was seated
next to her leadman, Davis Lee, who asked to see the
union literature she was reading.
In late June, there were employee meetings in the
plant cafeteria. The meetings were chaired by Plant Gen-
eral Manager Charles Glenn, and attended by the entire
supervisory staff. Glenn spoke to the assembled employ-
ees. Dunlap testified:
Mr. Glenn said "I guess you have been wonder-
ing who the people is that is parked outside of the
company property"; he said "I want you to know
that they are union people"; and he said "we think
that they are trying to start a union campaign" and
he said "but we want you to know one thing" he
said, "we feel that if you want a union, it is your
perfect right to have a union, but we as a family
here at Conway Mill does not need a union"; and
he said "all the union people that is out there is to
make money, to get your money, and bank it up,
and just get your money"; he said, "we don't need a
union at Conway Mills, we can take care of our
own family."
I asked Mr. Glenn, I said, "Mr. Glenn," I said, "I
personally think that it would be good for the com-
pany if we did have a union"; I said, "because
sometime a dispute can arise between a supervisor
and an employee" and I said, "nine times out of ten
you are going to take your supervisor's word over
the employee's word"; I said then because the su-
pervisor is always right; and I said "it would be
better for us to have a third person in here to help
settle the disputes."
He said, "Diane," he said, "we do not need a
union"; he said "we can take care of our own."
I said, well, then, Mr. Glenn, I said, well, won't
our insurance benefits, our income be higher; and
he said, "well, like I told you," he said "the union
can't give you anything that the company does not
agree to give you" and I said, "well, in my opinion,
I think that it would be better to have a union."
He said, "well, either way," he said, "it is up to
you if you want a union"; he said, "if you want a
union here, we will not harass you, you are perfect-
ly free to have a union," and he said, "they can't
give you any more than we give."
On August 10, Dunlap reported to Hagwood that an
employee had come to her work station and cussed her.
Hagwood said that he had not heard it that way and
questioned Dunlap about her time spent away from her
machine and the number of people who stop at her work
station to talk. Hagwood also asked Dunlap why she
spent so much time in the twisting department. Dunlap
replied she was on break and was in twisting to pick up
some dress fabric she had purchased. Hagwood told
Dunlap he did not care if she was on break and said,
"You stay on your job and no talking to anyone."
Dunlap told Hagwood it was less wrong for her to be in
another department on her break than it was for other
employees who roam the plant selling products to em-
ployees. Dunlap testified:
Q. (By Mr. Connor) Did you ever observe any
people in the plant doing things that was not con-
nected in any way, shape or manner with their job?
A. Yes.
Q. Can you name one person that you observed
doing something like this?
A. As I said, Sarah Ford sold Avon.
Q. All right now, what was Sarah Ford, was she
a member of management, or was she an employee?
A. She was an employee.
Q. Do you know where she worked?
A. Spinning.
Q. And did Sarah Ford ever approach you?
A. Yes.
Q. On one occasion or more than one occasion?
A. Several occasions.
Q. And where were you when she approached
you?
A. Maybe in the cafeteria or the bathroom.
Q. All right, let's see if we can recall more spe-
cifically for Sarah Ford; do you recall any time
when she specifically approached you?
A. Yes.
Q. And did you have a conversation?
A. Yes.
Q. Tell Judge Gritta, please, what, if anything
that she talked about?
A. Well, she said, well; we went in and she was
talking to other people and she was showing them
the Avon and like I say, she was talking to some
other people, and she was showing them the Avon,
and I said, "well, what book is that," and she said,
"it is mine"; I said, "when did the order go in," and
she said "it goes in on a certain date." I said, "well,
let me look at the book."
Q. All right, did you look at the book?
A. Yes, I did.
Q. And what is Avon?
A. Avon is different kind of perfumes, and pow-
ders and cosmetics.
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. After you looked at the book, please tell us
what, if anything, you did?
A. I ordered what I thought that I wanted.
Q. Please tell us what you ordered?
A. Bath lotions, cremes, lipsticks, eye shadows.
Q. And was it ever delivered to you?
A. Yes.
Q. And who delivered it to you?
A. Sarah Ford.
Q. And where were you when she delivered it to
you?
A. At my locker in the plant.
Q. At your locker?
A. Yes.
Q. All right, and did you pay her?
A. Yes, I did.
Q. Therein the plant?
A. Yes.
Q. Can you tell us, please, if there was any other
time that you were approached by Sarah Ford?
A. I can't remember exactly every place that we
talked. But mostly it would be in the bathroom, or
the cafeteria, she would come by my frame and say,
"well, I have got a new book."
Q. She came by your frame?
A. Right.
Q. Did she come by your frame on one occasion
or more than one occasion?
A. On more than one occasion, it was not just ex-
actly to sell Avon; maybe some times just to talk.
Q. My question was: [D]id she come by your
frame and discuss a subject other than a working
matter?
A. Personal things.
Q. Like what?
A. She would come by and speak, you know. I
might ask her where she got her blouse or, she
would say "you look good today" or something;
you know, just things in general.
Q. Did she ever come by for any other purpose
to have a discussion?
A. No.
Q. She never did?
A. No.
Q. Those times that she came to your frame that
you just testified to, what, if anything were you
doing at the time?
A. On my job.
Q. Please speak up louder.
A. Doing my job.
Q. All right, thank you. You testified that Sarah
Ford was selling products, AVON products?
A. Right.
Q. Now was there any other person at the plant
doing anything other than their work?
A. Well, occasionally, you would have people
come by and say "will you purchase a ticket" for
certain events.
Q. Did that happen sometimes?
A. From time to time.
Q. Can you tell Judge Gritta the name of any
person, whoever approached you, to discuss some-
thing other than working conditions?
A. Rosy Lewis.
Q. Rosy Lewis?
A. Yes.
Q. And when was it that she came to talk to
you?
A. I can't recall the exact date.
Q. Would you give us the year?
A. In '83.
Q. And where were you when she came to you?
A. On my job.
Q. What were you doing?
A. Doing my job.
Q. And what did she want to discuss with you, if
anything?
A. To purchase a ticket for to buy for a color
TV that she were helping somebody to raise money
for some old person.
Q. And did you buy the ticket?
A. Yes, I did.
Q. And did you pay her?
A. Yes.
Q. When did you pay her?
A. At the time she asked me to buy the ticket.
Q. Where did the money come from that you
paid her?
A. Out of my pocket because it was only a
dollar.
Q. You had the money right in your pocket?
A. Yes.
Q. You paid her right there?
A. Yes.
Q. What did she do after you paid her?
A. Put it in her pocket and went back to work.
Q. Where did she go after that?
A. Well, she worked in the frames next to me.
Q. She went to work?
A. Yes.
Q. Did you observe her going any other place at
that time?
A. Not particularly because I was too busy, I
was too busy, I had too much to do.
Q. Any other people that approached you with
things of that nature?
A. There was several people but you can't recall
everyone that comes up and asks you to buy some-
thing.
Q. But that did happen from time to time?
A. Yes.
Q. Now would you tell the Court briefly when
things of this nature, when you first noticed things
of this nature going on?
A. It has been going on ever since I have been
out there.
Q. You have been out there how many years?
A. Approximately seven and a half years.
Several days later, on August 14, Personnel Director
Tom Gilbert came to Dunlap's machine and said, "Hello
Diane." Dunlap replied, "Hi," and Gilbert said, "I would
UNITED MERCHANTS 145
like to look back over the seven or eight years that you
have worked at Conway Mill and think that Conway
Mill had done something good for you." Dunlap re-
sponded, "Well, I would like to look back over the
seven or eight years that I have worked at Conway Mill
and think that I have done something good for them.
Gilbert then said, "Well, the only way that you can
prove your loyalty to the company is to get your union
card back." Dunlap replied, "What makes you think that
I want it back." Gilbert said nothing more and walked
away.
Dunlap stated that she received less discipline, particu-
larly reprimands, during her early employment than she
did after the union campaign started. Her discipline
record is as follows:
10-22-76

T-S—Talk sheet for job
performance—low
production
8-25-77

T-S—Job performance—
overstay break
4-18-78

T-S-1Unexcused absence
8-3-78

T-S—Tardy and unexcused
absence
10-26-78

T-S—Tardy
8-26-79

T-S—Unexcused absence
7-29-80

T-S—Unexcused absence
8-31-81

T-S—Unexcused absence,
failure to call in
1-9-82

Reprimand #1—failure to
call in
8-25-82 Reprimand #2—unexcused
absence (changed to #1 as
of 1 year period)
8-1-83

Reprimand #2—unexcused
absence (change to #1)
9-8-83

T-S—poor job
performance—stacking
work
10-3-83

Reprimand #2—tardy 2
consecutive Saturdays
10-12-83

Reprimand #3—job
performance—stacking
work
Dunlap on several occasions of discipline, particularly
job performance, i.e., stacking work, explained to her su-
pervisor that all the girls stacked work and that doing so
was in accordance with their instructions to maximize
production the best way they can and still keep the pro-
duction quality up. Dunlap stated that the five-can rule
was not followed to the letter and as long as the quality
was up and production was up, supervision was not con-
cerned with the rule. The more experienced spinners
could keep the production up by tying off without wait-
ing for five cans to empty.
Dunlap further testified that Davis Lee, her leadman,
daily checked her frames at the end of the shift. Howev-
er, in the last 3 months of her employment, Ted Hag-
wood and Timmy Mishoe began standing around her
work station and watching her work. They would walk
up and down her frame and check her cans. In between,
Hagwood, Mishoe, and Lee would check Dunlap's
frames. On several of the checking occasions, Dunlap
asked Lee why he was checking her frames so much.
Lee responded that he was told to do so.
Susan Sarvis testified that she has been employed by
Conway Mill approximately 9 years. Presently she is a
twister operator. Sarvis stated that she had a conversa-
tion with Ted Hagwood on June 21 at her work station.
Sarvis testified:
He asked me had anybody from across the road
been to see me and I asked him who was he talking
about. And he said you know the people parked
across the road. And I asked him if he was talking
about the Union people. And he said yeah, that is
who I am talking about. Then I told him no, that
nobody had been to see me. And he could not be-
lieve it, because [he] had been seeing some of the
Blacks and he figured that they would get around
to seeing me. And he asked me if I knew anything
about the Union. And I told him that my momma
had been with the company that had gone out on
strike for eight months. And then he asked me how
did I feel about it?
I told him that I did not know that neither side
of the company, I had to have both sides of the
thing before I could make a decision on it. And
then he walked off from me and in a few minutes,
he come back and he told me he wanted at least
two things from me. At the time, my name was
Susan Cox. And he says that the company thinks a
lot of Susan Cox and we want to keep it that way.
He then said that Susan Cox had done a lot for the
company and the company had done a lot for Susan
Cox. Then he walked off.
In late June, Sarvis hosted a union meeting in her
home. About a week later, Mishoe came to Sarvis' work
station and said he wanted to ask a couple of questions.
Mishoe said he had heard some disturbing things about
Sarvis and he wanted to find out about it. Mishoe told
Sarvis he had heard she had a union meeting at her
house and that she had signed a union card. Sarvis said
she had heard the same thing. Mishoe stated that he
could not believe it and Sarvis replied that she could not
believe it either. Mishoe then walked off.
Sarvis stated that although her immediate supervisor,
Carter, and Department Head Mishoe would frequently
observe the entire department at shift change time, there
was an increase in observation of her work and break-
times beginning in July 1983. In addition to the increased
observation by Carter and Mishoe, Ted Hagwood, assist-
ant plant manager, also increased his individual checking
of Sarvis' machine in July 1983.
At an employee meeting in late September after the
benefits and production problems were discussed, the
floor was opened to questions. One operator asked Hag-
wood how employees could get back union cards they
had signed. Hagwood never answered the question, but
he did say it was causing a lot of problems and it could
be worked out if people wanted their cards back. After
the meeting ended and employees had gone back to
work, Hagwood came to Sarvis' work station. After dis-
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cussing proposed Sunday work, Hagwood said the thing
on the outside was causing a lot of conflict inside the
plant. Hagwood said he wanted people to realize what
this stuff was doing before it was too late.
On November 13, Supervisor Carter told Sarvis to
come to his office. She left her work station and went to
Carter's office. Once in the office, Carter told her he was
giving her a talk sheet for overstaying break the day
before. Carter asked if she had any comments and Sarvis
replied, "No." Carter also told her she did not have to
sign it. Sarvis said no more and returned to work. Sarvis
had gone on break with Virginia Soles, May Waddell,
and Ruby Causey. All four employees received a talk
sheet for the same break. The following month on De-
cember 8 Carter gave Sarvis a reprimand for overstaying
a break. Sarvis testified:
He come and got me and asked me to come into
the office for a few minutes.
Q. Was anybody in there besides you?
A. Not to start with. When we first got in there,
it was just me and Curly. Then after the conversa-
tion, Timmie Mishoe came in.
Q. While you were alone with him, what if any-
thing was said?
A. He told me that he had to give me a repri-
mand for staying over on break. And I said well
Curiy what break did I stay over on? He told me
that I had left my job at 10:45 to go to break and I
said well when did I come out? And he said about
nine minutes after 11. I said no Curly, that is not
right. He said it is down here on this paper.
Q. What time did the break take place on that
day?
A. 10 minutes until 11.
Q. And he said that you left at what time?
A. He said that I left a quarter, 10:45.
Q. And what did you say about that?
A. I told him that I did not. Curly, I said, I did
not overstay my break.
Q. And how did he respond to that if any?
A. He told me that it was on that paper, you
know it is written down here.
Q. Did he tell you why he was timing you?
A. No.
Q. Had he ever timed you before that?
A. Yes.
Q. How do you know?
A. Because I watched him. Everytime, he knows
when it was about time for the breaks and he will
come into the department and whenever I leave my
frames, he goes and he counts my ends.
Q. Your what?
A. The ends on my machine.
Q. When did this practice begin at the plant?
A. July of '83.
Q. (By Mr. Connor) And then, who did you go
to your break with on that day?
A. I went with my Polly Allen and Virginia
Soles.
Q. Did you remain together while break time
was in progress?
A. Yes, we did.
Q. And you left, who did you leave with, if
anyone?
A. We all three of us walked out at the same
time.
Q. Who, if anyone, did you go to your break
with?
A. I went with Virginia and Polly. We went to
the bathroom and washed our hands and then went
straight to the cafeteria. As I was walking into the
cafeteria, I saw Curly sittingin the office and I__
looked" at my watch and it was 10 minutes until 11
when I had my hand on the door, fixing to go in,
the cafeteria. At 11 o'clock, we all three, got up
and walked out at the same time.
Q. And did you have any conversation with
Polly about anything?
A. Yes, I did.
Q. When was this?
A. After I came out from getting the Reprimand.
Q. How soon after you came out?
A. Well, I went to my frames and started work-
ing, and then when I saw her close to my working
area, I told her about it.
Q. And how much time had expired between you
telling her and the time you left the office?
A. Probably about 10 minutes.
Q. And how was your frame of mind at that
time? Having received that written reprimand.
A. I was upset. I told her that I had gotten a
Reprimand, but then she asked me what for. I said
for over-staying break and she wanted to know
when. I said for the 11 o'clock break. I asked her
did she get one. She said no that she had not re-
ceived one. I asked her if she knew if Virginia had
gotten one. She did not know, and she said that I
feel like that it is wrong, if you got one and neither
of us got one and we went in at the same time.
Sarvis told Carter during the reprimand interview that
she left her machine at 10:30 a.m. to go to the bathroom
to wash her rag that she keeps her machine wiped down
with. She washed the rag and returned to her machine.
The machines have to be kept clean and the rags used
must also be kept clean. Sarvis stated that she was told
to wash the rag as often as necessary because the ma-
chine had to be kept clean so the yarn would not be
soiled. Clean yarn was paramount. Some employees turn
in their dirty rags and get clean ones but Sarvis for the 2
years that the new machine has been in place always
washes her rag during the week and then replaces it with
a new one.
Sarvis kept personal notes of her conversations with
her supervisors and referred to these notes when she
gave her affidavit to the Board agent. After giving the
affidavit, she destroyed the notes. Sarvis also began re-
cording the breaktimes after she received the reprimand
of December 8.
John Henry Smith testified that he has worked at the
mill for 4 years on both the second and third shifts.
Smith was laid off during July, but during June and
August he had several conversations with management
UNITED MERCHANTS 147
concerning the Union. In late June, Ted Hagvvood came
to Smith on the job. Hagwood said he had heard that
Smith was riding around with a lady in a black car.
Smith replied that he could ride with anybody he
wanted to. Hagwood acknowledged that Smith could
ride with anyone, but told Smith that a union card had
been signed by Smith. Smith denied signing a union card
and the conversation ended. Within minutes Tom Gilbert
approached Smith at his work station. Gilbert said sever-
al people had told him that Smith was riding with a lady
in a car and that Smith had signed a union card. Smith
again denied signing a union card.
In August, soon after Smith returned from layoff,
Hagwood again spoke to Smith about the union card at
his work station. Hagwood told Smith to do the right
thing and get his union card back. Smith thought about
what Hagwood said about the union card and figured he
would go ahead and get the union card back to lessen his
worrying and his bother on the job. A plant technician
named Jimmy told Smith that a lady operator in the
plant could help him retrieve his union card. Within 2
months, Smith asked the female tow motor operator to
help him write a letter to get his union card back. She
did so and mailed the letter for him during late October.
The following day Hagwood came to Smith and shook
his hand for getting the union card back. Hagwood
asked Smith if he knew any other employees who had
signed union cards and asked Smith to talk to these em-
ployees about getting their union cards returned. Later
the same day, Gilbert spoke with Smith. Gilbert also
asked Smith to talk to other employees about getting
their union cards returned. Smith told both Hagwood
and Gilbert that he would talk to employees as they sug-
gested but he did not do so.
Johnny Ray Blanton testified that he has worked at
the mill on two different occasions. He began in June
1974 and worked for 2 years and did not return to the
mill until September 1979. His total employment is ap-
proximately 4-1/2 years as a technician. He was aware of
the union campaign, which began in late June or early
July. In mid-July while Blanton was working, Tom Gil-
bert walked up and asked Blanton if they could talk and
keep it to themselves. Gilbert then asked Blanton if he
had heard anything about the Union. Blanton responded,
"No," and Gilbert asked Blanton if he would tell Gilbert
if he did hear anything. The conversation ended without
a reply from Blanton.
On October 1, Blanton was again approached by Gil-
bert. Blanton testified:
A. He went where I was, at the back door of the
plant, and wanted to know how things were going.
I asked him about what. He said, you know, that
thing I said about the Union. I said yeah. I said,
well, I did not know nothing. He kind of started
telling me about they hired me back and that I
owed the company a lot. Where they could phase
out my daddy's job and did a favor about hiring my
brother. Things like that and he kind of got me
mad, and I like told him that I had signed a card.
And he wanted to know, would I consider getting
my card back. I told him that I would think about
it. He told me that he had knowed that I had
wanted to be a supervisor one time, and by signing
a Union Card, that I did not show a lot of devotion
to the company.
Q. Please tell Judge Gritta if any other members
of your family work out there?
A. My momma, my brother, and my daddy.
Q. What is your mom's name?
A. Edna.
Q. What is your daddy's name?
A. John D.
Q. What is your brother's name?
A. Ronnie.
Q. All right. Now the very next day after you
had this conversation that you just testified to, did
somebody come up to you and say something?
A. Ted Hagwood walked up, I was going out,
and he walked up and said that he wanted to talk
with me for a minute. He said that he had had a
conversation with Tom and that he had heard some
disappointing things about me. He made me mad
and I just turned around and walked off.
Blanton stated that during November, his supervisor,
Gene DeWitt, began timing the job more frequently and
citing him for poor performance. Blanton's production
was no different, but instead of an occasional timing on
changeovers DeWitt was timing Blanton's performance
just about every night. On one occasion, DeWitt stood
around and timed an entire changeover. When Blanton
fmished the changeover and had his production started
up again, he went to the office to confront DeWitt. Blan-
ton told DeWitt that he could not do his job being
watched all the time. DeWitt told Blanton if he did not
like it, he could quit. Blanton said he would not quit and
if DeWitt wanted him out, he would have to write him
up and put him out. DeWitt responded that it could be
arranged.
Blanton admitted that his work history included sever-
al talk sheets in 1979 and 1980 dealing with his perform-
ance on the job. Although Blanton had signed a union
card, he did not wear any union insignia in the plant nor
did he distribute any union literature in the plant.
Edna Blanton testified that she has worked at the mill
for 10 years and currently is yarn inspector weigher.
During the union campaign in the summer of 1983, Edna
was visited at her house by several union agents. At no
time during the union campaign did Edna Blanton wear
or display union insignia in the plant. Neither did she dis-
tribute any union literature in the plant at any time. The
day following the visit, she had a conversation with Tom
Gilbert at her work station. Gilbert began the conversa-
tion telling Edna that he understood that the union
people had been out to see the Blantons. Edna replied
that she was not home at the time. Gilbert then asked
Edna if she had anything to tell him would she tell him.
Edna said she would. Gilbert told Edna that her family
was well thought of in the mill and she has a lot of pull
with the people in the mill.
Later in mid-September, Edna was called to Tom Gil-
bert's office. Both Gilbert and Tom Solomon, depart-
ment manager for winding, were present. Gilbert told
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Edna that he had reports that she was soliciting for the
union during working hours. Edna denied soliciting for
the Union during work. Gilbert repeated that his reports
were that she was soliciting for the Union when she was
supposed to be working, and he told Edna if it happened
again she would be fired. Edna told Gilbert that when
someone speaks to her, she speaks back and she could
not control who talks to her. Edna asked if they expect-
ed her to work without opening her mouth. Solomon
said all the Company expected was for her to act natural.
Gilbert also told Edna that if the Union came in, it
would be a complete mess. Such a mess would prevent
the employees from talking to their supervisors or to him
because employees would have to go to shop stewards to
talk.
John D. Blanton testified that he has worked at the
mill for 3 years as an oiler technician. He has the respon-
sibility to oil and grease the machines in each depart-
ment. In early July, Blanton was talking to Wallace
Gregory, a coworker, about the Union and he told
Gregory the union people had been to see him. Shortly
after Gregory left the work area, Blanton's supervisor,
Floyd, came in. Floyd asked, "Why didn't you tell me
that there is a man that has been to see you? Has the
man been to see you?" Blanton said, "Yes sir," and
Floyd asked, "Why haven't you told me nothing about
it." Blanton responded, "Well, I hadn't thought nothing
about telling you about it, my understanding was that he
was going to see everybody." A short time later, Pat
Carroll, carding department manager, asked Blanton if
the man had been to see him
Later, Tom Gilbert approached Blanton and said he
wanted to talk. Blanton said he would talk. Gilbert said
the company had been good to Blanton's family, employ-
ing four members of his family. Either Gilbert asked
Blanton if the man had been to see him or Blanton
simply told Gilbert that the union man had visited his
home and planned on a return visit. Gilbert asked Blan-
ton, "Will you keep us informed as to what is going on
and what is happening." Blanton told Gilbert that he
would keep the Company informed. This same day Ted
Hagwood asked Blanton if the union people had been to
see him Blanton told Hagwood they had. Hagwood then
told Blanton that they were not going to have any part
of the Union and did not want a union. Blanton told
Hagwood that as head of his family he was not making
enough money, but Hagwood did not make any farther
comment. Blanton did not wear or display any union in-
signia in the plant nor did he distribute any union litera-
ture in the plant.
Jeter Glenn, general manager of the mill, testified that
on June 7 management observed some individuals parked
on the roadway across from the plant. The next day em-
ployees reported to management that the individuals seen
were union organizers. On the morning of June 21,
Glenn held a meeting of all supervisors and department
managers. Glenn told the supervisory group that the
Union was visiting employees. Glenn admonished the su-
pervisors not to promote or carry on conversations with
employees about the Union, but the Company's position
was to carry a very strong procompany policy. Glenn
held employee group meetings on that day and the fol-
lowing day in the employee canteen and during shift.
Glenn told the employees they had a legal right to sup-
port or not support the Union, but if they were ap-
proached to sign a card the Company wanted them to be
absolutely sure they understood because it was serious.
Glenn told the employees if any had questions to let the
Company have the questions and he or someone would
answer all questions. Some employees did ask questions.
Glenn answered the employees' questions with help from
Tom Gilbert on several of them. Although no further
meetings of employees were held, the Company did post
a union authorization card on the bulletin board accom-
panied by company explanations of the card. Also a
letter containing questions and answers about the Union
was mailed to all employees' homes.
Timothy Mishoe testified that he has been manager of
the spinning and twisting department since December
1981. Mishoe has three shift supervisors under his com-
mand. Mishoe has the final authority for discipline and
discharge in his department albeit the initial procedure
may rest with the shift supervisor.
Mishoe explained that the creeling procedure of allow-
ing only 5 cans of the standard 50 to run out before the
operator creels was established by engineering. Engineer-
ing decided that more than five cans would require too
much time and decrease the efficiency of the particular
machine. An operator is expected to remove the 50 cans
when 5 cans have emptied. The removal process takes a
certain amount of time and while the operator is remov-
ing the empty cans as well as others almost empty, some
additional cans will be emptied. Thus, less yarn will be
left in the cans to be pieced together in the spinning
process. Mishoe stated that creeling early by an operator
disrupts the cycle of the machine and disrupts the oper-
ation of the oncoming operator at shift change. Although
experienced operators can make their jobs easier and pre-
plan the operation of the machine to facilitate a specified
break period by creeling early, there is a company rule
against such early creeling. In addition, an operator's
training includes the standard creehng procedure. When
an operator does creel early, she has to place an empty-
ing can of yarn on top of a full can and tie the ends to-
gether so the machine can continue running yarn from
the two cans. A visual check of a machine shows that
cans are stacked rather than being a single level of cans.
Thus, the characterization of "stacking work." Mishoe
stated that he has on numerous occasions counseled op-
erators about stacking Work He admonishes them in de-
partment meetings as well as on the floor while he is in-
specting the work. Mishoe does not issue talk sheets or
reprimands automatically to employees for stacking
work. Rather than discipline the employee, he simply
discusses the problem. In his 20 years as manager, he re-
calls that employees have violated the five can rule on
six occasions but could not recall if each instance war-
ranted discipline. Mishoe said he does not issue discipline
for each instance out of fairness. Regarding Dunlap's dis-
cipline, he issued a talk sheet to both Dunlap and Rosie
Lewis on September 8, 1983, for stacking work. On Oc-
tober 3, 1983, Mishoe issued a second reprimand to
Dunlap for tardiness and on October 12, 1983, issued
UNITED MERCHANTS 149
Dunlap a third reprimand for stacking work. Although
Dunlap's recent creeling violation was reported to
Mishoe by Ted Hagwood, there is no history of Hag-
wood reporting employee violations to Mishoe. As a
result of the third reprimand, which was under consider-
ation by supervision for a workday while Dunlap was
suspended, she was discharged the next day for poor job
performance—stacking work. The surrounding circum-
stances as testified to by Mishoe were as follows:
I proceeded into my office at which time, Ted
Hagwood and Tom Gilbert was in there. . . .
I told them that I had noticed on Diane Dunlap's
job that there was only two cans that had run out.
Q. Was anything decided?
A. Yes, sir, it was decided at that time, that some
type of disciplinary action would be issued at which
time Tom Gilbert spoke up and stated that she had
two reprimands in her file, and after that time, we
discussed it further and decided we needed to look
into the incident further and we decided at that
time to maybe send Diane home for the rest of the
afternoon and come back into the plant the next
morning, and talk with us about it further. That
would enable us to investigate the situation, and be
sure we rendered the right decision.
Q. What did you do next?
A. Ted and Tom left the office. I called Diane
into the office. I told her that we had observed her
creeling before the Standard ends had run out, and
that she knew that this was a violation of standard
job procedure, and that she did have two repn-
mands, and until we could render a decision, and in-
vestigate the situation further, we felt it best to send
her home, and if she would, to come back the fol-
lowing morning at approximately 9:30; and we
would discuss it further, and at that time, she said
that "I am not going home," and she said "I refuse
to go home," and I asked her why, and she said
"well, if you are going to fire me, you can fire me
today," there is no need for me driving back tomor-
row, if all of the people here whatever to make the
decision, you can make it this afternoon.
And I said, "Diane, any time that a Number 3
Reprimand is in question, it is certainly reviewed
and there is a lot of consideration that is gone into
before it is issued. It would be to your benefit to go
home," and she stated that "I am not leaving," at
which time I picked up the telephone and I called
Ted Hagwood, and I informed him of what was
going on, that she had refused to go home.
He told me that he would be back with me in a
minute, and as I hung up the telephone, we sat for a
moment, and Diane questioned me if she could take
a break, and I said, "Well, Diane, you are smoking
in here, I don't really see any need for you taking a
break."
She said, "Well, I want a soda." And I asked her
what kind she wanted; and she told me, and I went
in the canteen to get it for her, the best that I knew
that she wanted; and I brought it back to her; well,
the machine was not working, but I bought her the
kind that I thought she wanted and I brought it
back to her, and then she said "may I go to the
bathroom" and I told her "no," and she says "do
you want me to pee on the floor," and I says "no,
ma'am, if you have to go, I will go with you and I
will wait outside at which time we got up and went
to the restroom and I waited outside and Diane
went to the bathroom and stayed approximately
five minutes and I had, I looked at my watch and
we went back to the office and Ted came in and
asked what the problem was and I said Diane re-
fused to go home, and they asked her why she
wouldn't go home and the conversation carried on.
Diane refused to go, and Ted Hagwood said "if you
don't leave voluntarily, we will have to get the
proper authorities to remove you."
She said, "Well, I guess that that is what you will
have to do." And then they proceeded out of the
office.
Q. What happened next?
A. Well, I was setting there and Diane was sit-
ting there, and the relationship that we had in the
past as Department Manager and employee, we
never had anything that we couldn't resolve.
I told Diane, I said, "Diane, this is not good. It is
only making it worse, why don't you go home,
allow us time to render a decision, and come back
tomorrow. I think that it is going to be for the bet-
terment of everybody."
She says, "I will go home if you will write me a
note stating that you sent me home on the United
Merchant's Letterhead."
I said, "that sounds fair enough." I picked up the
phone, I called Ted Hagwood's office and he an-
swered the phone. I filled him in on what was
going on, and he agreed to do it.
Edna Morgan, which is Ted's secretary, brought
the letterhead down to me in my office and I pro-
ceeded to write out the note at which time Tom
and Ted came back into the office.
I wrote the note out and let Diane read it, and I
asked her to sign it. She refused to sign it. After I
wrote it out, and she looked at it and approved of
it, I gave her a copy. I told her she could clock out
and go home.
She says, "I don't want to punch out, I am not
going to punch out."
I said, "Diane, why?"
She said, "Well, I have my reason. I am not
going to punch my card" at which time Tom Gil-
bert spoke up and suggested that Davis Lee, which
is the Working Foreman, clock her out. She agreed
to that.
I stepped to the door and I called Davis Lee into
the office and asked him if he would get Diane
Dunlap's card from the rack, punch it out, and
bring it into the office, which he did.
In the meanwhile, I decided that I would write
another note stating that she would not clock out,
and I did so while he was punching the card. He
came back into the office, handed me the card, and
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I showed it to Diane for her approval which she
agreed to.
Q. What happened then?
A. I told Diane that she could go ahead and
leave and to come back the next morning, and she
got up and proceeded out of the office, and I told
her at that time before she got to the door that I
would walk her to the door.
As we walked out of the office, her lockers are
located on the the right beside the frames, and you
have to walk directly by them; and the operators
wear aprons, and they have different articles that
they need in running their job.
She stopped by her locker, to put up her apron
and get her pocket book, and et cetera.
While she was standing there doing that, I was
standing over by the frame approximately five feet
away. She said, "do you want to see what I have in
my locker?"
I told her "no, that there was no need in that"
and by that time, she was finishing up, and she
closed the locker door, and we proceeded to walk
out; and she made a statement "I may have a gun in
there."
And my words were "I like to think that we live
lives that we don't have to walk around and carry
guns down here" and we proceeded on to the door.
As we got to the door, the exit door, I unlocked
it. She asked me "If I was going to walk her to her
car" and I says "if you would like for me to, I
would."
She said, "I sure would." And so, I locked the
door behind me, and I proceeded to walk her to her
car in the parking lot.
Q. What happened the next day?
A. The next morning, she arrived back at the
plant at approximately 9:00 or 9:30.
Q. And what happened, did anything happen that
morning?
A. We, Diane was discharged that morning.
Q. Did you have any other conversation with
any other employee about Diane that morning?
A. Yes, sir, I did.
Q. What was that conversation?
A. At or around 8:30 that morning, Carroll Ste-
vens, which is a ring spinner came into my office.
She says, "have you seen what is written in the
bathroom?"
And I said, "no, I have not."
She said, "I think you need to see it."
And so, I got up, and went to the ladies' rest-
room with her, and as we walked into the ladies'
restroom, we walked to the very back of the rest-
room, the back stall, and as I looked into the stall, I
saw some graffito on the wall.
Q. What did you do?
A. I told, I asked Carroll if she would, to stay
right there and keep everybody out until I could
come back at which time I went to the office, and
called Tom Gilbert and asked him to meet me
down there, which he did.
Q. What happened next?
A. Tom came in, we looked at it, the writing on
the wall, I copied it down word-for-word on a
piece of paper, and then we had it removed.4
Mishoe did not make the decision to discharge Dunlap.
That decision was made by management outside the
presence of Mishoe. Mishoe did not know if the bath-
room graffito was considered as part of the reason to dis-
charge Dunlap.
Mishoe stated that while operators are at lunch or on
break, their machines are attended by the working fore-
man, however, if the fifth can were to empty while the
foreman was operating the machine, the creeling proce-
dure would not be implemented by the foreman. The
machine would continue running until the operator re-
turned. Mishoe said the operators would plan their ma-
chines' operations so cans would not empty during
breaktime if they could. Such planning of a machine's
operation causes operators to occasionally "stack work."
Mishoe also testified that twisting doffers, such as
Thurman White, are trained in the correct procedure for
doffing of frames. One such procedure includes the pro-
hibition against mixing bobbin colors on a frame. In addi-
tion to the training, there are weekly department meet-
ings of employees in which production problems are dis-
cussed including the mixing of bobbin colors. The bobbin
color is a code for the specific yarn in production. Sub-
sequent departments become confused when bobbin
colors are mixed and the identity of a customer's yarn
order could be lost. The various yarns produced contain
different fibers, different staple strength, and are mixtures
of synthetics made of several fibers, and yarns are also
colored to a specific tint. The combinations could be
endless. Due to the size of a customer's order, the plant
supply of a given bobbin color could be exhausted and
an alternate color bobbin would be issued to complete
the order, e.g., orange could be an alternate for red or
vice versa. The mill has one yellow colored bobbin and
one mustard colored bobbin, which are two separate
colors, however, on occasion, the mustard has served as
the alternate for yellow. An alternate color is chosen
about once a week for a given bobbin color and opera-
tors are instructed to use the alternate until the original
color is in supply and then cease using the alternate
color. This situation applied at all times including when
the team doffing concept was used. Mixing of bobbin
colors can take place in the winding department and thus
be delivered to the twisting department already mixed
without regard to any substitute color status. In addition,
if bobbins are mixed in the twisting department, Mishoe
usually learns of this from the winding department,
which gets twisting production to work on.
Bernard Ted Hagwood testified that he has been assist-
ant plant manager for 3 years. On October 12, Hagwood
was walking through the plant at 4 p.m. and noticed that
Dunlap was in the process of creeling but no lights were
lighted on her machine, which indicates that no yarn
ends were showing. She had creeled about 15 cans and
4 R. Exh. 36.
UNITED MERCHANTS 151
was about one-fourth down her machine. Hagwood said
as he approached closer, she asked what was wrong.
Hagwood said he noticed that she was creeling early.
Dunlap replied that it was easier that way. Hagwood
said he was sure she was not instructed to follow such a
procedure. Dunlap was creeling with no cans empty.
Hagwood called Mishoe over to Dunlap's machine
and showed him that Dunlap was creeling early. Mishoe
summoned his Supervisor Davis Lee and Hagwood went
into the department office and spoke to Tom Gilbert. As
Hagwood and Gilbert were talking about Dunlap,
Mishoe came into the office. The three discussed Dunlap
and decided she was not following the correct creeling
procedure and some discipline should follow. They de-
cided to send her home and have her return in the morn-
ing. Gilbert and Hagwood then left the production area.
Shortly, Mishoe called Hagwood to report that Dunlap
refused to leave. Gilbert and Hagwood went back to the
department office. Hagwood spoke to Dunlap:
I asked Diane, I says, "what is the problem" and
she says, "I am not planning to leave the plant"
and I said, "Diane, it would be in the best interests
of everybody if you would leave the plant and
come back tomorrow morning."
She stated "the onliest way that she would leave
the plant would be, the onliest way that she would
leave the plant is that she would be drugged from
the premises" and I said, "we don't want to do
that," and I said "it would be best if you would
leave;" and at that time, I said, "well, if we have to
get the proper authority to remove you from the
company premises, then we would do so" and then
at that time, Mr. Gilbert and myself went back to
my office, and . . . we was in the process of trying
to locate Gerald Strowd, which was in the Green-
ville Office, and was unable to do so; and some five
minutes had went by, or ten minutes; and Timmy
Mishoe had called back to the office, and stated that
Diane Dunlap said she would leave the plant if she
had a company letter stating that she was to leave
the plant and come back tomorrow morning with
Timmy Mishoe's handwriting; and I didn't see any-
thing wrong with that; and so, I had Edna Morgan,
which was our secretary, to take the letter heading
down to Timmy's office, and she came right back,
and so, in a. couple or two or three minutes, Tom
and I, Gilbert, walked back to the Spinning Room
' Office, and Timmy was in the process of writing on
the letter heading something into effect that Diane
Dunlap would leave the plant and report back to
Conway Mill at 9:00 o'clock the next morning, and
after I saw that, I left.
Q. Now, Mr. Hagwood, did you have any
knowledge that Diane Dunlap was in favor of the
union?
A. Absolutely not.
The following day, Mishoe, Gilbert, Hagwood, and
Glenn met in Glenn's office to consider the discipline for
Dunlap. Sometime around 8:30 or 9 a.m. on October 13,
the management committee decided to terminate Dunlap.
The committee did hear a report from Mishoe on the
bathroom graffito, but the decision had already been
made. Hagwood could recall several other employees'
terminations that merited the committee's attention. One
employee's infraction was sleeping on the job, another
was using profanity to a supervisor. Hagwood stated that
sleeping on the job was more serious than stacking work
and none of the several other employees terminated by
the full committee were guilty of stacking work. In actu-
ality, notwithstanding the automatic nature of a dis-
charge following receipt of the third reprimand, the
management committee meets to determine whether the
employee is to be discharged. If discharge is decided, the
employee is issued the third reprimand.
Hagwood denied asking any employee about the
Union and specifically denied any coercive interrogation
of Susan Sarvis. Hagwood testified to several conversa-
tions with employees Sarvis, John Henry Smith, Johnny
Ray Blanton, and Dunlap:
Q. Did you speak with Susan Sarvis in June of
1983?
A. Yes, sir.
Q. Where were you, what was said, and why did
you speak with her?
A. It was on her job, and it was shortly after Mr.
Glenn had his group meeting with all of the em-
ployees in the canteen. And as I did with a lot of
employees, I went to Susan on her job, and I asked
Susan did she have any questions about the meeting
that Mr. Glenn had, and she stated, she says, "no, I
have heard your side of it. I want to hear the union
side of it."
And I said, "that's your right," and Mr. Glenn
stated in the meeting, "it is your right to belong or
not belong;" she stated also at that time, that her
mother worked at a plant that was union. . . .
She said that her mother was working at a com-
pany that was organized, had a union, and they was
out on strike; and I said, well, you know, "still you
have your rights." I said, "We have done a lot for
Susan Sarvis Susan Sarvis did a lot for Conway
Mill. We sent Susan Sarvis to Union, South Caroli-
na to train operators in two-for-one twisting and I
told Susan at that time that I didn't want to see any-
thing come in between the relationship that we
have here at Conway Mill with you or any of our
employees;" and at that time, that is all I said.
Q. Did you ask her if anyone from across the
street had been to see her?
A. No, sir.
Q. Did you ask her if "any union people had
been to see her?"
A. No, sir.
Q. Did you say to her that you couldn't believe
that the union had visited her?
A. No, sir.
Q. Did you ever ask her during that conversation
how she felt about the union?
A. No, sir.
Q. Did you have a conversation with Susan
Sarvis sometime in September?
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. The latter part of September, yes, sir.
Q. If you would, please tell the court what was
said in that conversation?
A Each month we have a group meeting. It con-
sists of approximately 15 to 18 employees. Those 15
or 18 employees was gathered throughout the plant
from the Card Room, right on through Packing;
and we sat down and we talked about the problems
that we might have on our job; or anything that
employees would like to cover on their job; Mr.
Gilbert and myself, and at the end of a meeting,
there was several questions that was raised; Susan
Sarvis raised a question as to "I thought that we
would get double time for working on Sunday;"
and I said, "No, we have always been paid time and
a half, and that is our policy" for Sunday work.
And she said, "Well, I feel like it should be
double time."
I said, "Well, I am sorry, that is our policy."
And shortly after the meeting, I went to Susan
Sarvis on the job, and I says "Susan," I said, "I no-
ticed that you seemed to be a little startled or puz-
zled about the question or the answer that I gave
you in the meeting."
She said, "Well, Ted, I thought that it was
double time on Sunday."
I said, "no, it is our Standard Procedure for it to
be time and a half;" and at that time, I told Susan
again, I said "as I stated back in June, Susan, we
think a lot of Susan Sarvis; you have done a lot for
us and we have done a lot for Susan Sarvis."
And I also stated that "we didn't want anything
to come in to interfere with the relationship that we
had built up for the past nine years with you or the
rest of the employees."
Q. Did you have a conversation with John Henry
Smith sometime in June 1983 where the union was
discussed?
A. No, sir.
Q. Did you ever talk with Mr. Smith and tell him
that "you heard that he was riding with the union
or a union lady?"
A. No, sir.
Q. Did you ever tell Mr. Smith that you heard
that "he signed a union card?"
A. No, sir.
Q. Did you ever talk with Mr. Smith about the
fact that he got his union card back?
A. Yes, sir.
Q. When was that?
A. That was in October, 1983.
Q. What was said in that conversation?
A. I went to John on the blend line on his job,
and I told John that I heard "you have your card
back;" and he says, "that's right;" and he stated to
me "the reason that he signed his card that Hattie
Jones had taken him to Atlanta over the week-end,
and wined and dined him," and he said "that was a
mistake that he had made, and he knew of several
other employees who had signed a card," and I just
told him that I appreciated his concern, and appre-
ciated him getting his card back.
Q. Did you have a conversation with Johnny
Ray Blanton around the first of October, in the
plant?
A. Yes, sir.
Q. What was said in that conversation'?
A. Tom Gilbert had a conversation with Johnny
the day before, and it was with Johnny, and it was
on a Friday, and on a Saturday morning, Johnny
was going out of the plant or going out of the mill,
and he passed me at Open End, and I said,
"Johnny, I am just far enough up on the conversa-
tion that you and Mr. Gilbert had yesterday, and it
really surprised me for you to make the statement
that you have made;" and he said, "what is that;"
and I said, "that you had been treated at work like
dogs;" I said, "that really surprised me, Johnny."
He said, "Well, I didn't mean it that way."
I said, "well, that is the way that it came out,"
and I said, "it really surprised me."
And I said, "you are not treated like dogs, you
are not worked like dogs," and I said, "if you can
remember, we have sent people out, the least senior
people out to be able to give you 40 hours of work.
We combined jobs so that we could give you addi-
tional hours' and I said, "I am just sorry that you
felt that way."
Q. Did Mr. Blanton, Johnny Ray Blanton, ever
mention the union in this conversation.
A. No, sir.
Q. Did you ever mention "union" in this conver-
sation?
A. Absolutely not.
Q. Now, Mr. Hagwood, there is an allegation in
the complaint that you had, that you participated in
restricting the movement of employee, Diane
Dunlap on or about August 10th, do you recall talk-
ing to her on that date about that subject?
A. Yes, sir, it was requested by Diane Dunlap to
talk to me in my office, which I did.
Q. And what happened?
A. And so, she came to the office; and she said
that Daphne Reed, which was a spinner was
coming off of her job and stated that she had been
riding around with the union people; and she didn't;
and also I think that she might have said a cuss
word to her.
Q. When you say "she," you are referring to Del-
phine?
A. Delphine said it to Diane.
Q. All right.
A. And Diane stated that she did not, she didn't
think that it was right for her to leave the job to
come to another employee's job; and I said "that is
correct, she was not supposed to leave her depart-
ment and go to another department without her su-
pervisor's permission;" and I said, "now that holds
true for every employee, Diane, even yourself; and
you have been observed yourself several times in
other departments" and she said, "oh, no, I
haven't."
UNITED MERCHANTS 153
I said, "Yes, ma'am, you have."
She said, "Well, I went over in the Twisting De-
partment to see some garments that she was work-
ing"; and I said, "well, that is in another depart-
ment;" "as long as your supervisor knows about it,
yes, ma'am, it will be fine."
Well, I didn't, and she said, "I didn't think that it
was right for Daphne to come on my job and
accuse me of something that I wasn't doing."
Q. Now do you go out in the plant as a part of
your job?
A. Yes, sir.
Q. What do you do?
A. That is my job, patrol to observe.
Q. What percent of your day do you spend in the
plant?
A. Approximately 80 percent.
Q. As far as the open end spinning area, how
many times per day are you in that area?
A. 15, 20 times. You have to go through open
end to get to the rest of the departments.
Q. What do you observe when you go in open
end spinning?
A. The running conditions, the ereeting cycle,
the red lights, ends that would be down.
Q. Did you increase the amount of time that you
spent in open end spinning from, let's say, July
through October of 1983?
A. No, sir.
Q. Did you ever spend any extra time observing
Diane Dunlap on her job?
A. No, sir.
Q. Through that period of time?
A. No, sir.
Curly Carter testified that he has been supervisor in
the spinning and twisting department for 9 years. Carter
is Susan Sarvis' supervisor and was responsible for her
first reprimand issued to her on December 7, 1983, for
staying off the job too long during a break period. Carter
testified to the circumstances:
A. I left the spinner room office, and I went to
the twisting department. I went by Susie Sarvis'
job, which is on the way to the twisting office.
Susie was not on her job.
. . . .
I walked the lower end of her job and went back
through the mill; and I walked up then, and then is
when I looked at my watch; it was fifteen 'til 11;00;
10:45; that is when I arrived there in her work area.
. . .
I walked on to ring twisting, which is on the way
to the office; and I observed the alleys up and down
making sure that she was not over there; making
sure that she was not over in ring twisting talking
to someone. I did not see her. I proceeded on to the
locker room. I looked in the locker room; I did not
see Susie.
I then went to the canteen. I looked inside the
canteen; there was no one in the canteen; I walked,
I left there and went on towards twisting office and
I stopped right outside the office, there is a work
bench, and I looked around for her, and the area
around there and I did not see her; and I opened
the door and I went into the twisting office; and I
sat down; and I lit 'up a cigarette; and I sat there
looking out the window; out the window there.
Q. Now the window that you are looking out,
where does it face; what was your line of vision as
you looked out that window?
A. It faces straight toward the canteen and the
restroom.
Q. Do you recall if while you were sitting there
then saw Ms. Sarvis?
A. Yes.
Q. Do you recall what time it was when you
then saw Ms. Sarvis?
A. 10:57; she came out of the restroom and went
into the canteen.
Q. What did you do next after you observed that
it was 10:57 and she had entered the canteen?
A. I started doing some paper work, some re-
ports that I fill out every day.
Q. Did you have occasion to notice Ms. Sarvis
again?
A. Yes, at nine minutes after 11:00, she came out
of the canteen, came to the twisting office and
picked up some labels and went back to her job.
Q. The twisting office, is that where you were
sitting and observing her?
A. Yes, sir.
Q. Did she speak to you when she came into the
office?
A. She said, "I have got to get some labels."
Q. Did you speak to her?
A. Yes, I told her "okay."
Q. After she left the twisting office, what did you
next do?
A. After she left, I wrote the reprimand.
Q. Are you referring to the reprimand that you
have identified today?
A. Yes, sir.
Q. What did you do with the reprimand after you
wrote it up?
A. I then left and went back to the spinning de-
partment, and Timmy was in the spinning depart-.
ment and I just discussed it with him
He signed it and he said "well, it is pretty close
to dinner, I will get it through after lunch."
He came by, he give me the reprimand, probably
twenty minutes after 1:00. He told me, "I will get
back with you later on. I am tied up right now. I
have got some salesman to see;" and he said, "I will
get back with you and said so we will issue it to
her."
Q. All right, when he returned the reprimand to
you after lunch had it been approved or had it not
been approved?
A. Yes, sir.
Q. Who approved it?
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. The personnel manager, himself, and the su-
perintendent.
Q. The personnel manager being whom?
A. Tom Gilbert.
Q. And the superintendent is whom?
A. Teg Hagwood.
Q. Did you have an occasion to talk to Mr.
Mishoe later the same day?
A. Yes, sir.
Q. And tell us what occurred then?
A. He was in the spinning room office and I
went into the office, and he told me, he said "you
go ahead and get Susan and come back to the twist-
er room office" and he said, "I will meet you down
there and we will issue her a reprimand."
Q. What did you then do?
A. I left and went on to Susie's job and I got
Susan and I carried her to the twisting room office.
Q. What happened next?
A. Timmy was in the office, Timmy Mishoe.
I told Susie to have a seat. I read the reprimand
to her, and I asked her if she had anything; when I
told her the time; she said "well, I didn't leave my
job 'til 10:30."
I spoke up, I said, "Susan, if you didn't leave, if
you left the job at 10:30, you were gone for 39 min-
utes."
And Timmy said "he is right" he says, "that was
39 minutes."
Susie said, "well, maybe I looked at my watch
wrong" all right.
Q. Did anybody say anything else?
A. I asked her if she had anything else, and she
got up, and she shook her head, and she got up, and
she opened the door, and she said, "well, that is
number 1."
Q. All right, she has left the twisting room office;
what did you do?
A. I gave the reprimand to Timmy Mishoe, he
left to take it to the personnel department. I left and
I went back to Susie's job, back by Susie's job and
she was on her job.
Q. Was she with anyone on her job?
A. No, sir.
Q. Concerning the times that you have testified
to concerning when you observed Susan Sarvis
away from her job and the time that you gave this
concerning the time that you saw her going into the
canteen and the time that you gave us concerning
coming out of the canteen, did you use a watch or a
clock to establish those times?
A. I used my watch.
Q. Is there a central clock system in the plant?
A. Yes, sir.
Q. What do you synchronize your watch to, if
anything'?
A. By the time clock.
Q. How frequently do you synchronize your
watch?
A. Every day.
Q. And was that true prior to the time that you
observed Ms. Sarvis and gave her the reprimand?
A. Yes, sir.
Carter had previously given a talksheet to Sarvis,
Wade11, Causey, and Soles for overstaying a break on
November 12. Carter stated that Sarvis had overstayed
breaks at least twice between the November 12 talksheet
and the reprimand of December 7. Carter's advice to
Sarvis on those interim occasions was, "Susie, we need
to watch our breaks, that you are beginning to overstay
your breaks again. I don't want to have to take any more
disciplinary action." Carter stated that when he feels he
has done all he can by talking to the employees about
overstaying breaks, then he has to take disciplinary
action such as talk sheets or reprimands. Carter does not
keep any record of the number of times, he just talk to
employees about overstaying breaks. The other three em-
ployees cited with Sarvis on November 12 did not over-
stay any breaks after the November talksheet including
December 7, and were not issued a reprimand on De-
cember 7. The break policy includes a 10-minute break in
the morning, 20-minute break for lunch, and a 10-minute
break in the afternoon. The operators take their breaks
anytime their machines are fully fed and capable of run-
ning unattended. All employees are free to go to the
restroom whenever they need to and can take breaks to-
gether as well. Overstaying breaks is a permanent prob-
lem among the operator employees. Sarvis began over-
staying breaks sometime during June, July, or August
and Carter spoke to her and the other three several times
about overstaying breaks.
Carter has no knowledge of any employees in his de-
partment engaging in union activity nor has he ever
heard any of his employees discussing the Union.
An additional problem Carter had with the lady opera-
tors began in June or July. Some ladies began grouping
in the restroom and others complained that there was no
room left for them to use the facilities. Carter, on De-
cember 8, talked to all the operators and told them they
were not to go to the restroom in a group just to get to-
gether and talk.
Gene DeWitt, supervisor of the carding department
for 9 years, testified that he had a conversation with
Johnny Ray Blanton about the Union in November.
Blanton came to DeWitt's office wanting to know why
he was being watched more than usual. Blanton wanted
to know if his having signed a union card was the reason
he was being watched so much. DeWitt told Blanton the
union card had nothing to do with it. The reason was to
observe the operators and try to find the bottleneck and
then improve the changeover times. DeWitt had no
other conversation with Blanton in which the Union was
mentioned.
Lloyd Stevens, second-shift supervisor in the spinning
and twisting department, testified he supervised Thurman
White. Stevens initiated the reprimand given to White on
October 7 for mixing bobbin colors. Stevens stated that
at the start of the shift on October 7, he told White and
Graham for the second time that yellow and mustard
bobbins were being mixed. Stevens told White and
Graham if they found any mixed in inventory, to return
UNITED MERCHANTS 155
them to winding to be separated. That shift Stevens con-
tinuously checked the two men and the bobbins were not
being mixed on the frames. At the end of the shift, while
Stevens was walking the job with the oncoming supervi-
sor, they saw the bobbins were mixed on the last frame
for the shift. About 20 mustard bobbins were mixed on
White's side of the frame. Stev ens confronted White
about the mix, and White said he was in a hurry to get
the last frame finished. White asked if Stevens wanted
him to take the mustard bobbins off and replace them but
Stevens said, "no," let winding worry about it.
Stevens stated that the correct procedure for White to
follow if he finds the specified bobbin color exhausted is
to notify the supervisor because he cannot start the
frame if he is short of bobbins. The supervisor will then
designate the alternate bobbin color for the operator.
The mustard bobbin has been the alternate color for
yellow when the PC-118 blend is being run since the de-
partment always ran short of yellow. Stevens, however,
said that on the night in question mustard was not speci-
fied as the alternate although PC-118 blend was the yarn
being run. Also, White and Graham were engaged in
team doffing and Graham's side did not have any mus-
tard mixed with the yellow. Mixed bobbins are not
always a problem of identity of the yarn blend because
the operators chalk mark the bobbins so winding knows
that even though different color bobbins are used the
yarn is the same. With the PC-118, however, the custom-
er has requested no chalk marks so the bobbin color is
used to identify the yarn. In addition, each operator,
upon completing the frame, removes the filled bobbins
and places them in a doff box. In each box the operator
places a doff ticket that identifies the yarn in the box.
Thus, winding has two means of identifying the yarn on
the bobbins. Stevens stated that the subject shift was the
only time that White had ever mixed bobbin colors on a
frame in violation of the procedure. Stevens added that
bobbins had never been mixed before in the production
process. Operators had used the wrong bobbin color but
two colors had not been mixed before by operators.
Randy Coone, third-shift spinning and twisting super-
visor for 8 years, witnessed the mixed bobbins on frame
37 and heard White admit that he mixed the bobbins.
Coone was also present when Stevens gave White the
reprimand for having mixed the bobbins. Coone recalled
that $hortly before the White incident Department Man-
ager Mishoe, during weekly department meetings, alerted
everyone to the problem of mixed bobbins. Mishoe stated
that he was having trouble with mixed bobbins and
wanted the supervisors to be on the alert for it. Coone
stated that only a supervisor can tell an operator to use
another color bobbin as an alternate. In the past, more
than one color bobbin has been used on a single frame
when the yarn counts are large and there is not enough
bobbins to support it. In such cases, the supervisor in-
structs the operator to use more than one color bobbin
on a frame. Before the mixed bobbins from twisting
would go to winding, Coone, or the respective supervi-
sor, would alert winding so that the off color bobbin
would be wound on the proper cone to identify the par-
ticular customer order. The proper cone is colored spe-
cifically but does not match the bobbin color. Coone
added that when the twister operators begin running
yarn on bobbins that any rework is usually not attempted
after the machine has run for 5 or 6 minutes with aver-
age yarn. By that point in time, more yarn has been run
on the bobbin than the mill cares to allocate to waste.
The PC-118 yarn is an average yarn and is the yarn most
produced at the mill.
Meyers Floyd testified that he has been the supervisor
of the carding department for 10 years and supervisor of
production/maintenance for 5 years. Floyd supervises
John Blanton, father of Johnny Ray Blanton. Floyd
denied any knowledge of Blanton's union activity and
further denied that he ever had a conversation with
Blanton in which the Union was mentioned. Floyd also
said he had no knowledge that the Blanton's residence
had been visited by the Union's representatives.
Thomas Solomon, department manager of winding for
3-1/2 years, testified that he was present in Gilbert's
office when Edna Blanton was confronted with a com-
plaint by employees that she was soliciting for the Union
while she was supposed to be working. Solomon testified
that Gilbert summoned Edna and then both spoke to her:
Mr. Gilbert came to me and asked me to bring
Edna Blanton to his office. At this time I did. He
started the conversation with Edna about we had a
employee . . . complain that she [Edna] solicited
for the Union while he was working. At this time,
Mr. Gilbert went over to the no solicitation rule
that we have at Conway Mill. That an employee
could not solicit another employee while they were
working. Edna said that she did not solicit for the
Union, so at this time, I said to Edna that we
wanted to get her up front and talk about it like we
always had before. That we had had this complaint
and just wanted to make sure that she understood
the no solicitation rule that we had. And she did
and she said that she hadn't solicited. And again I
reaffirmed to her that we appreciated her coming
out and talking with us. That we just wanted to talk
about it, get it out of the way, and make sure that
she understood what the no solicitation rule was.
At this time, Edna said that she always had. That
we didn't need a Union at Conway and she wasn't
for it and she's always been a good employee and
that we never have any problem with her. And I
agreed with her and Mr. Gilbert did too. And that
was the whole gist of the conversation, sir.
Q. To your knowledge, was any talk sheet issued
to Edna Blanton for having solicited during, as a
result of this report that she had been soliciting?
A. No, sir.
Q. Was any talk sheet written up based on the
conversation that you and Mr. Gilbert had with
her, that you just told us about?
A. No, sir.
Q. Did she get a reprimand for that meeting that
you had?
A. No, sir.
Q. During that meeting, did Mr. Gilbert state to
Edna Blanton that if the Union was to come in the
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plant that she would not be able to talk to him or
her supervisor directly?
A. No, sir.
Q. Did Mr. Gilbert say anything like that during
that meeting?
A. No, sir.
Q. Did you say anything like that during that
meeting?
A. No, sir.
Q. Did Gilbert state during that meeting that if
she engaged in any more solicitation, that she
would be fired?
A. No, sir.
Q. Did he say anything to her concerning being
fired during that meeting?
A. No, sir.
Solomon stated that employees are not given a talk
sheet the first time a company rule is violated, but rather
are counseled to make sure they understand the rule and
how it was violated. Once an employee should have an
understanding of the rule either by counseling or by
having worked long enough in the mill, he may be issued
a talk sheet for subsequent violations. The issuance of a
talk sheet is not automatic. A second complaint from em-
ployees that Edna was again soliciting for the Union
when she should be working occurred in mid-November.
Edna was brought to Gilbert's office and confronted
with the employee complaint. Edna denied that she had
solicited any employee and Gilbert once again explained
to her that she could not solicit for the Union while she
was working or while the other employee was working.
Gilbert told Edna she could solicit on the smoke stand,
while she was on break, in the canteen, in the restroom,
or outside the plant. There was no discussion of disci-
pline for Edna nor was she given a talk sheet for viola-
tion of the no-solicitation rule.
Union Representative Harold Bagwell testified that the
Union did not handbill the plant, did not direct employ-
ees to wear union insignia inside the plant, did not send
any union correspondence to the Company, did not ad-
vertise on any news media, nor were scheduled union
meetings of employees held. The Union's primary cam-
paign consisted of visiting employees in their homes and
having several union meetings at various employees'
homes. The Union had an informal employee committee
composed of Susan Sarvis, Diane Dunlap, John Blanton,
Edna Blanton, Johnny Ray Blanton, Betty Caine, Thur-
man White, John Henry Smith, and Polly Allen. The
Union held a fish fry for employees at the residence of
John Blanton in late August.
ANALYSIS AND CONCLUSIONS
A. Alleged 8(a)(1) Violations
The General Counsel in her brief moved to amend out
several allegations in the complaint. 5 I grant the General
5 Par 7(a) Ted Hagwood-October 1 and 30, 1983, par 7(a) Tom
Gilbert-October 30, 1983, par 7(b) Gene DeWitt-September 1, 1983,
par 7(b) Ted Hagwood-August 1, 1983, and vanous unknown dates
thereafter, and November 1, 1983, par 7(b) Tom Solomon-November
1, 1983, par 7(b) Tom Gilbert-August 1 and November 1, 1983, par
Counsel's motion to withdraw the enumerated allegations
and remove them from the complaint and further consid-
eration. In addition to the withdrawn allegations, I find
no substantial evidence in the record to support the fol-
lowing allegations in paragraph 7 of the complaint:
Subpara. (b)-interrogation, Hagwood, August 10
Subpara. (b)-interrogation, Solomon, September 15
Subpara. (e)-threats of termination, Hagwood, Oc-
tober 1
Subpara. (f)-impression of surveillance, Gilbert,
June 30
Subpara. (f)-impression of surveillance, Hagwood,
June 21
Subpara. (f)-impression of surveillance, Floyd,
July 1
Subpara. (j)-threat of futility, Hagwood, July 1983
Subpara. (m)-threats of reprisals, Hagwood, June
21, and September 30
Accordingly, I shall dismiss the enumerated allegations
as unsupported by substantial record evidence.
The record contains testimony of employee John
Henry Smith. At one point Smith's testimony appeared
forthright and the result of recall, however, as he contin-
ued testifying, he either contradicted his earlier testimo-
ny or exhibited insecurity in its factual basis. Whether
Smith was confused by the questioning or not, I found
his testimony to be insubstantial and nonprobative of the
General Counsel's complaint. Smith appeared to be genu-
inely attempting to recall the events but he was too
prone to follow suggestion for me to consider any part
of his testimony more factual than another. Smith's in-
consistent statements, one given to the General Counsel
and another to Respondent, lend credence to my deci-
sion not to credit any portion of his testimony. I, there-
fore, discredit the testimony of Smith and shall dismiss
the paragraph 7(a) allegation against Tom Gilbert the
last of June 1983, and the paragraph 7(1) allegations
against Gilbert and Ted Hagwood dated October 30.
The General Counsel's complaint contains two related
allegations (pars. 7(b) and (n) Gilbert, September 15). Al-
though the General Counsel at trial withdrew his offer
of General Counsel Exhibit 2 that purported to be a
handwritten copy of Respondent's posted no-solicitation
rule, he contended that an employer's confrontation with
an employee involving the employee's violation of a no-
solicitation rule constituted coercive interrogation by the
employer. Witnesses Sarvis and Edna Blanton testified to
support the General Counsel's allegations. Sarvis' testi-
mony was completely unsupportive and Edna Blanton
simply recalled the confrontation between her and Re-
7(d)- Tom Solomon-September 15, 1983, par 7(e): Tom Solomon-No-
vember 1, 1983, par 7(e) Tom Gilbert-November 1, 1983, par. 7(e):
Hagwood-November 1, 1983, Gene DeWitt-November 1, 1983; par
7(8) Ted Hagwood-August 1, 1983, and at various unknown dates
thereafter, September 15 and November 1, 1983; par 7(f). Tom Gilbert-
November 1, 1983, par 7(t) Tom Solomon-November 1, 1983; par 7(8).
Pat Carroll-July 1, 1983, par 7(8). Gene DeWitt-September 1 and No-
vember 1, 1983, par 7(g) Myers Floyd-July 1, 1983, par 7(j). Timmy
Mishoe-August 1, 1983, par 7(j) Tom Gilbert- November 15, 1983,
par. 7(k) in its entirety, and, par 10 in its entirety
UNITED MERCHANTS 157
spondent on two separate occasions. I do not accept Re-
spondent's argument that the no-solicitation policy was
not a rule and therefore is not subject to the usual Board
test. Rule or policy, if the employees are effected by it,
the substance must meet the Board's test for validity. I
do, however, consider the fact that Blanton denied union
solicitations on both occasions and was not disciplined in
any event. I also credit Gilbert's testimony that he told
Blanton she could solicit for the Union on her own time
and on company property. Blanton's testimony, though
credible, was not contrary to Gilbert's with respect to
the rule nor did her testimony establish the promulgation
of an oral rule against union solicitation by Gilbert. The
testimony of the no-solicitation rule posted on a post out-
side the building clearly applies to nonemployee solici-
tors. I do not accept the General Counsel's argument
that employees would be restrained by the notice in ex-
ercising Section 7 rights. In addition, I rely on the trial
motion previously ruled on. The Charging Party's con-
tentions are likewise unavailing. Blanton was questioned
by Gilbert about soliciting for the Union when she was
actually performing her work functions but contrary to
the General Counsel, I do not conclude nor do I find
such questioning in these circumstances to be coercive
interrogation. I shall, accordingly, dismiss both allega-
tions of the complaint.
Johnny Ray Blanton credibly testified to two conver-
sations about the Union with Tom Gilbert on July 15
and October 1, with Ted Hagwood joining the second
one. Edna and John Blanton Sr. credibly testified to two
conversations about the Union with Gilbert in July. Gil-
bert admittedly spoke with Johnny Ray Blanton about
the Union on October 1, but recalls that any reference to
the Union was initiated by Blanton's volunteering of in-
formation. Gilbert denies any other conversations with
employees about the Union excepting the confrontation
with Edna Blanton over her suspected violation of solic-
iting for the Union while actually working. As is so
often the case, when witnesses attempt to recall conver-
sations, neither can recall all the remarks made nor the
exact words that may have been used. It thus falls to the
trier of fact to evaluate all the testimony and conclude,
which portions more accurately describe the events in
issue. Contrary to Respondent, I do not find that the var-
iances between the employees' testimony and their affi-
davits are controlling in assessing credibility in this case.
Gilbert admittedly received information on union ac-
tivity among employees from some 50 employees and
from some of those on more than one occasion. It would
be far harder for Gilbert to recall the different substance
of those many union conversations than for Johnny Ray,
Edna, or John Blanton Sr, to recall the substance of only
two conversations. More particularly, it would be decid-
edly difficult for Gilbert to selectively assimilate the in-
formation and keep much of it to himself although he did
impart some of his union activity information in subse-
quent conversations with employees, as graphically illus-
trated by his response to Johnny Ray Blanton on learn-
ing, first hand, that 131anton had signed a union card.
Contrary to Respondent's stated policy of remaining neu-
tral in the union campaign, it did, thought its supervisors
converse with employees about unions in a procompany
stance and readily displayed its knowledge to prounion
employees. This is particularly true in those conversa-
tions between Gilbert and the Blanton family members
wherein the Company's past benevolence to the Blantons
was unequivocally expressed (a conversational procedure
utilized by other supervisors as well). The fact that su-
pervisors wait for employees to initiate conversational
subjects or subtlely inject prohibitive subjects into a con-
versation that is free flowing does not lessen the coercive
impact of the conversation. Rossmore House, 269 NLRB
1176 (1984). Notwithstanding, the nature of the questions
asked and the manner in which they were asked, con-
vinces me that Respondent's design was to restrain and
coerce employees in the exercise of their Section 7
rights. The record evidence clearly shows that Respond-
ent regarded the Blanton family, with four working
members, as a pivotal source of procompany sentiment,
particularly m view of the large union gathering held at
the Blantons in August and of which Respondent obvi-
ously had knowledge from its numerous sources. In such
circumstances, it would strain credibility not to conclude
that selected employees were asked how they felt about
the Union or to assess those same employees' union ac-
tivity as an act of disloyalty to the Company. The fortui-
tous inquiry by an employee, at the only company spon-
sored meeting of employees devoted to the union cam-
paign and relating to retrieval of signed union cards,
lends support to my conclusions drawn from the record
evidence. Albeit, I have not considered the testimony of
John Henry Smith in reaching my conclusions, it is
eventful that Gilbert sought him out to thank him for
having gotten his signed union card returned with the
help of a fellow employee. (Other supervisors expressed
the same appreciation of the Company to other employ-
ees who retrieved their signed union cards.) I conclude
and find that Gilbert did suggest to Johnny Ray Blanton
that the Company would like employees to retrieve their
signed union cards but did so in a fashion something less
than a direction, but a violation nonetheless. Also, I con-
clude and find that Gilbert did question each of the Blan-
tons about their union sentiments, and on at least one oc-
casion, asked each of them to report union activity to the
Company supporting this request with statements that
union activity is tantamount to disloyalty to the Compa-
ny. In spite of the fact that Gllbert may have told
Johnny Ray Blanton that any consideration as a supervi-
sor in the future would not be hindered by his present
prounion sympathy, the latent message to Blanton was
clear; forsake the union activity or beth.. the consequences
of such disloyalty.
Johnny Ray Blanton's testimony, however, does not
support the allegation that Ted Hagwood joined Gilbert
in such expressions to Blanton. Accordingly, I shall dis-
miss the allegation in paragraph 7(i) relating to Hagwood
but find that the General Counsel has sustained his
burden of proof on those allegations in paragraphs 7(a),
(b), (g), (h), and (i) relating to Gilbert. In addition, I
credit Edna Blanton's version of her encounter with Gil-
bert involving the no-solicitation rule, wherein Gilbert
remarked to Edna that if the Union was successful, the
employees would not have the same access to manage-
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment for resolving problems verbally but rather would
have to talk to union stewards. I, therefore, conclude
and find that the General Counsel has sustained his
burden of proof for paragraph 7(d) of the complaint. I
also credit John Blanton Sr.'s version of the conversation
with Supervisor Meyers Floyd in which Floyd asked
Blanton if the Union had visited his house and when
Blanton responded affirmatively, Floyd asked Blanton
why he had not told him so before. With this evidence,
the General Counsel has sustained his burden of proof
for the allegation in paragraph 7(b) of the complaint re-
lating to Meyers Floyd.
B. Alleged Discriminatory Discipline
The General Counsel's complaint does not place Re-
spondent's entire progressive discipline system in issue,
and I denied an amendment to the General Counsel that
would have done so. I disallowed the amendment be-
cause General Counsel had a desire to litigate the reason-
ableness of all past disciplines without regard for more
limited issues found in the complaint and on which all
counsel were prepared to go to trial. The General Coun-
sel did not represent that newly discovered evidence ex-
isted. The General Counsel does move that Respondent
is estopped from relying on the past disciplines because
the complaint is based on a pretext theory rather than a
case of disparity. Suffice it to say that the General Coun-
sel's theory does not dictate exclusively what defense
any Respondent may make.
The General Counsel does contend that certain em-
ployees received written discipline, with one resulting in
discharge, because the employees engaged in union activ-
ity.
Respondent defends the allegations of discrimination
partly on the basis that each employee is disciplined
under a single set of rules that are uniformly applied and
that the employees' union activity contributed nothing to
the consideration to discipline the employees.
Specifically, the General Counsel argues that the union
activity of Susan Cox (nee Sarvis), Thurman White, and
Diane Dunlap was a motivating factor in Respondent's
decision to discipline the employees. Respondent argues
that the only reasons for discipline were either job per-
formance, attendance, or conduct as defined and imple-
mented by its progressive discipline system. The determi-
nation therefore turns on employer motivation. The cau-
sality test of Wright Line, 251 NLRB 1083 (1980), ap-
plies. The determination is twofold; first, whether pro-
tected activities played a role in the Employers decision
(probative of prohibitive motivation) and second, wheth-
er Respondent's asserted business reasons are sufficiently
proven to be the cause for its action so as to negate the
presence of protected activity in the discrimin4ees. 6 The
General Counsel must establish a prima facie case of dis-
crimination by a preponderance of the affirmative evi-
dence and the discrediting of any of Respondent's evi-
dence does not, without more, constitute affirmative evi-
6 The requirement that Respondent come forward with evidence of its
motivation does not undermine the established concept that the General
Counsel has the ultimate burden of proving an unfair labor practice by a
preponderance of the evidence
dence capable of sustaining or supporting the General
Counsel's obligation to prove his case. The General
Counsel must show that Sarvis, White, and Dunlap en-
gaged in protected activity; that Respondent had knowl-
edge of their protected activity; that Respondent dis-
played animus against the Union or the subject employ-
ees and that Respondent's action against the employees
was triggered by their protected activity.
Sarvis credibly testified that Hagwood came to her
work station and asked her if the union people had vis-
ited her home. Albeit, Hagwood denied asking Sarvis
any questions, he did admit he sought her out after
Glenn's talk to the employees on June 21. He also admits
telling Sarvis that the Company had done a lot for Sarvis
and did not want to see anything come between the rela-
tionship she had enjoyed with the Company. Hagwood
admittedly repeated the statements in a department meet-
ing, which Sarvis attended in September and in which
Sarvis states Hagwood fielded a question about employ-
ees getting their union cards back. Although Hagwood
did not answer the question, he did state the cards were
causing problems and that something could be worked
out. There is no dispute that both conversations took
place nor is there a dispute that Hagwood initiated both
conversations. I conclude and find that Hagwood's ex-
pressed concern for what the Company had done for
Sarvis over the years and the desire to keep the relation-
ship free of outside interference is instructive of how the
Company took a strong procompany stance and adds a.
union context to the conversation. Particularly, in view
of the fact that the interrogation by Hagwood followed
immediately, the revelation in Glenn's management meet-
ing that union people were visiting employees at home.
Notwithstanding the Company's announced neutrality, it
did not want the Union to represent its employees and
did campaign against the Union with dispatch.
Sarvis also credibly testified that Mishoe came to her
machine wanting to know if it was true that she hosted a
union meeting at her house and signed a union card. I do
not credit Mishoe's terse denial nor do I credit the first-
line supervisor or management's denials that they had
any information on the union activity of specific employ-
ees. In a relatively small mill such as Conway, I infer
that what knowledge one supervisor has is shared by all,
especially where the responsibilities of supervisors over-
lap as much as they do at Conway. Moreover, the
record evidence clearly shows that seven of the nine em-
ployees on the informal union committee were subject to
union related conversations with supervisors at their
work station or in the office of the supervisor. I con-
clude and find that Mishoe did question Sarvis about her
union activity and gave the impression that employee's
outside union activity was under surveillance.
Thurman White's testimony of his confrontations with
Mishoe over White's solicitations for the Union was
straightforward and void of any attempts to evade or
dodge questions of counsel. White's entire testimony ap-
peared to be a genuine attempt to recall the events as
they occurred. Although White was unsure of exact
dates, he was sure of the chronology of events. White's
version of the conversation was more complete than Mi-
UNITED MERCHANTS 159
shoe's denial, and I credit White's version and conclude
and find that Mishoe became aware of White's union so-
licitation and during the conversation discussed union sit-
uations with White and questioned White about his union
sympathy. Mishoe therefore had knowledge of White's
union activity and coercively interrogated White about it
in violation of Section 8(a)(1) of the Act. I further con-
clude and find that the above conversation preceded
White's subsequent reprimand for mixing bobbin colors.
Diane Dunlap stated that in addition to visiting em-
ployees' houses with the union organizer she questioned
Glenn in the employee meetings in June about the pro-
priety of the employees having a union. Dunlap told
Glenn that she favored unions and the benefits that could
come from having a union. Glenn admitted that employ-
ees asked him questions and did not deny Dunlap's testi-
mony of the meeting.
The conversation that took place in Hagwood's office
on August 10 is substantially undisputed. The General
Counsel contends that the conversation constitutes a co-
ercive restriction of Dunlap's movement in the plant be-
cause of her union activities. Hagwood admits that em-
ployee Reed, who was at Dunlap's machine, cursed
Dunlap because she was riding around town with the
union representatives. Hagwood did not deal with Dun-
lap's complaint of the cursing but rather dealt with em-
ployees being out of their working department without
their supervisors' permission. Hagwood admonished
Dunlap for her past excursions into other departments.
Hagwood did not deny that he told Dunlap even her
breaktime could not be spent in other departments or
that he said, "You stay on your job and no talking to
anyone." Hagwood did deny any knowledge of Dunlap's
union sympathy. It is clear to me that Hagwood's focus
in the conversation was Dunlap's access to other depart-
ments in the mill and her frequent conversations with
employees regardless of the Company's policy of allow-
ing employees free access at nonworktime. Hagwood
also did not deal with the appparent condonation of em-
ployee solicitation in the various departments. Because
Dunlap's complaint of another employee initiated the
conversation, one must look elsewhere for Hagwood's
motivation to admonish Dunlap rather than deal with
employee Reed's conduct. As previously stated, I do not
credit supervisors' denials of knowledge of certain em-
ployees' union sympathies, including such knowledge of
Dunlap. If Dunlap's statements at the employee meeting
in June were not enough, certainly the accusation made
by employee Reed would have been. In addition, Dunlap
testified without contradiction that leadman Lee ob-
served her with union literature in the cafeteria. Hag-
wood did not question what Reed said to Dunlap for the
obvious reason. Dunlap's union sympathies and support
was already known to Hagwood and he used the circum-
stance to attempt curtailment of further activity by
Dunlap. No other conclusion could be drawn from the
record evidente. Therefore, I conclude and fmd that
Hagwood's statements to Dunlap constituted a coercive
restriction of Dunlap's movements about the plant based
on her known union sympathies and proclivity to discuss
the Union with other employees. Such restriction vio-
lates the rights guaranteed to employees by Section 7 of
the Act. My conclusion finds additional support in the
evidence of somewhat free access for employees to solic-
it for outside activities with impunity.
Respondent's defense- of the discipline meted out to
Sarvis, White, and Dunlap is bottomed on what is
termed "a progressive discipline system." In part, Re-
spondent's witnesses testified that the discipline is auto-
matic and has remained unchanged from its inception
and has been uniformly applied to all employees. A con-
sideration of all the record evidence, objective and sub-
jective, however, dictates a contrary conclusion.
Susan Sarvis
The reprimand given to Sarvis on December 7, was
entitled, "staying off job too long," which implies that
employees can stay off their job for a certain time period
and not be "too long." Both Sarvis' testimony and that
of leadman Carter support the implication. Employees
can freely go to the restroom with frequency and with-
out losing any scheduled breaktime even in groups, al-
though Carter did admonish the employees on December
8, 1983, about grouping in the restroom just to talk—a
problem that began in June or July in Carter's depart-
ment. Also, the employees are required to keep their ma-
chines clean while operating (otherwise the yarn could
be soiled) and do so by wiping down the machines with
a rag. Apparently employees can get clean rags issued or
can clean the rag themselves. Sarvis chose to clean her
own rag and had done so for 2 years. The time spent
cleaning rags is worktime not breaktime. In addition, the
reprimand followed a talk sheet given on November 12
to four operators including Sarvis who usually take
breaks together and had been preceded by no such disci-
pline since 1978. Albeit, Carter stated that only Sarvis, of
the four, had stayed off the job too long since the talk
sheet in November, he also stated that Sarvis began stay-
ing off the job too long in June, July, or August, but
Carter did not determine that the infractions required
discipline until December. Prior to December, carter
simply told Sarvis to watch the breaktimes. As Carter
stated, when he feels that talking to employees is ineffec-
tual, he will issue written discipline. In addition to
Carter's enigmatic implementation of the progressive dis-
cipline system, the circumstances giving rise to the repri-
mand deserve some scrutiny. Carter testified that he con-
sumed some 20 to 27 minutes looking for Sarvis.
looked in the alleys, the far end of his department, the
adjoining department, the locker room, the canteen, and
the twisting office. Sarvis was not seen until Carter was
through looking for her. He saw her come out of the
restroom at 10:57 a.m. She went into the canteen (break
area) and stayed until 11:09 am., and then went to
Carter's office to get additional labels to use on her ma-
chine. At that time Carter did not confront her with the
infractions. Timing Sarvis' actual break from 10:57 to
11:09 a.m. evinces a negligible excess, if any at all. Sarvis
testified without contradiction that she washed her rag
first and then took her break. Carter did not check the
restroom although that is where he finally saw her exit.
Sarvis has a right to use the restroom and also has a
right to clean her machine rag. Her conduct as described
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by Carter does not, even by his standards, constitute an
infraction of the break rule or any rule for staying on the
job. From Carter's description, Sarvis could have re-
turned to her machine and not be seen by Carter but it is
clear that the mere absence from one's machine is not
against the rules. Absences can be, and apparently are,
regular especially where experienced operators are con-
cerned. The vice in this instance has to be something
other than the absence. Likewise, it has to be something
out of the ordinary to trigger the written discipline
mechanism for otherwise Sarvis' conduct would not
have caused concern or Carter would have confronted
her immediately with the ineffectiveness of his past coun-
seling. The evidence makes it clear that the restroom had
been a conversational place since the union campaign
began. Obviously, the Company decided in December to
put a damper on such conversations as well as the avail-
ability of participants. I infer from all the evidence, in-
cluding the independent 8(a)(1) violations found above,
that the purpose of the discipline for Sarvis was not her
absence from her machine but her activity in behalf of
the Union. It is abundantly clear that based on Carter's
past practice of disciplining employees and Sarvis' con-
stant performance as an operator (with little or no histo-
ry of written discipline) that in the absence of her union
activity Sarvis would not have received a reprimand for
staying off the job too long on December 7. Thus, the
General Counsel has sustained his complaint allegation of
paragraph 9 and proven a violation of Section 8(a)(3).
Thurman White
Thurman White's reprimand of October 7 was for
poor job performance. Specifically, mixing of bobbin
colors on a single frame. White admittedly mixed bobbin
colors on a single frame but the dispute lies in the deter-
mination of whether the mixing was an offense subject to
a written reprimand. White had not been disciplined for
his job performance since July 1981 until the instant rep-
rimand. White at the time of his discipline questioned
several aspects of the reprimand. White asked Stevens,
the leadman who initiated the discipline, if he wanted
White to remove the second color bobbins from the
frame. (The rework of bobbins by the operator on his
own time is part of the doffing procedure under which
the operators function Stevens, however, told White not
to stop the machine, "Let the winding department worry
about it.") The record evidence shows that the machine
had been running approximately 5 minutes which puts
the operation within the stated time period of question-
able waste. Nonetheless, Stevens elected to continue
winding the bobbins rather than remove them. White
also questioned the issuance of a reprimand rather than a
talk sheet because his understanding of the rule was two
talk sheets before a reprimand, but he was told a repri-
mand follows one talk sheet. Aslo, White stated that the
mustard or new yellow bobbin was an alternate for the
old yellow bobbin and his procedure was thereby accept-
able. More particularly, the procedure was acceptable
during the team doffing period because production of
machines were increased and the supply of old yellow
bobbins always ran short. This too was countered by su-
pervision and White received the reprimand. The whole
of the evidence convinces me that White was correct on
all three counts in addition to the fact that the issuance
of a reprimand even after one talk sheet is not automatic.
The subjective evidence in the record contains inconsist-
encies between witnesses and the objective evidence sup-
ports those inconsistencies.
Gilbert testified that neither talk sheets nor reprimands
are issued automatically for rule infractions. In fact, Gil-
bert decides in all cases when given employees have
been orally counseled enough and deserve talk sheets or
reprimands. Before any employee is issued a third repri-
mand, the entire work history of the employee is studied.
If a third reprimand is warranted it will be issued. Gil-
bert's testimony is supported by the talk sheet and repri-
mand exhibits, which show no discipline is automatic nor
is the issuance of written discipline consistent or uniform.
Specifically, the exhibits show that some employees have
received more than one talk sheet within a 12-month
period for the same infraction without receiving a repri-
mand. Other exhibits show an indefinite number of in-
fractions allowed before a talk sheet is actually issued.
Additionally, the system did undergo a change in Janu-
ary 1984 whereby infractions were condensed into one of
three categories whereas before the change several more
categories existed. Albeit, Gilbert stated that employees
were notified of the changes in the system and what
effect they would have, the changes have yet to be in-
corporated into a new employee handbook. In the future,
the handbook is to be revised and the changes in disci-
pline will be incorporated then.
Tom Solomon's testimony affirmed the lack of auto-
matic discipline in the system by explaining that employ-
ees are not given talk sheets until supervision is satisfied
that employees understand the rules. Employee under-
standing comes from repeated verbal counseling or
tenure at the mill.
White's testimony that the mustard bobbin was the al-
ternate color for yellow when Stevens confronted him
with the mixing that resulted in the reprimand and Ste-
ven's reply, "Well, we are getting ready to change it
now," is substantiated by the testimony of other supervi-
sors. Mishoe, although being less specific on the use of
alternate colors, did state that the mustard bobbin was
purchased as an alternate color for the yellow bobbin
since the yellow bobbin color was no longer available
from the supplier. Although Coone recalled that Mishoe
alerted the department to the problem of mixed bobbin
colors shortly before the incident with White, he also
stated that it was a practice to use several color bobbins
on a single frame when yarn counts are large and the
bobbin supply is low. Stevens acknowledged that mus-
tard was the alternate color for yellow particularly when
the PC-118 yarn was being processed because the depart-
ment always ran short of the yellow bobbin. He added
that the occasion with White when he was running the
PC-118 yarn was the first time that bobbins had ever
been mixed on a single frame. Stevens also stated that on
the night in question, he told Graham and White that
mustard and yellow were being mixed by the winding
department and not to use them as imixed but to return
them to inventory. Although Stevens stated that Graham
UNITED MERCHANTS

161
and White were operating under the team doffing system
and using the same supply of bobbins, Graham's side of
the frame on that fatal night did not have yellow and
mustard mixed. Graham's testimony supplied the synthe-
sis for the mixed bobbin problem. Normally bobbin
colors are not mixed on a single frame but during the
team doffing experiment, the frames did utilize mixed
bobbins. Graham had mixed bobbins on his side of the
frame just like White did. The night following the repri-
mand, Stevens told Graham not to mix the mustard and
yellow bobbins anymore. Within a month of White's rep-
rimand, the team doffing concept was abandoned.
It is clear to me that mustard indeed was an alternate
for yellow particularly when the PC-118 yarn was on
the machines. Equally clear is the practice of mixing
bobbin colors on a single frame during the experiment of
team doffing. Thus, White did not violate the doffing
procedure as claimed by Stevens and Mishoe. If not, the
reason for the reprimand must be other than the doffmg
procedure. The discretionary nature of the discipline
system in opposition to automatic actions for all infrac-
tions of rules facilitates discipline without reason, as it
did with White. I conclude and find that White was rep-
rimanded for his union sympathy rather than for any job
performance infraction. Respondent's evidence of wasted
yarn and confusion caused by the mixed bobbins is not
contradictory to my conclusions. The doffing procedure
allows for rework by operators like White, but he was
denied such rework on the basis that too much yarn had
been run on the bobbins. The testimony of the engineer-
ing evaluations for waste show that White's bobbins
were within the limits of acceptable waste or were below
the limits so that he should have been allowed to remove
and replace the bobbins. Stevens' insistence that the ma-
chine keep running is, to me, instructive of the degree of
vice in mixing the bobbins that night. Further, the record
evidence shows several means of maintaining the identity
of a yarn order. The bobbins do not stand alone. It is
true that alternate bobbin colors may be confusing to
winding employees, but that is a circumstance that
occurs with some frequency even without the team doff-
ing concept in practice. The doffing box obviously is de-
signed to alleviate that confusion and should do so.
Team doffing was a management experiment that failed
as evidenced by its demise shortly after White's repri-
mand. In my view, any confusion created by mixing bob-
bins rests with management, not the twisting operators.
Accordingly and in view of the independent 8(a)(1) vio-
lation found above, I conclude and find that Respondent
by issuing the reprimand to White on October 7, violated
Section 8(a)(1) and (3) of the Act.
Diane Dunlap
Dunlap's discharge was predicated on receipt of her
third reprimand within a 12-month period. There is no
dispute that all employees who receive a third reprimand
in any 12-month period are discharged. The issue is
whether Dunlap was lawfully disciplined when she was
given the third reprimand. As previously shown, the pro-
gressive discipline system employed by Respondent is ap-
plied inconsistently and without uniformity. In Dunlap's
case, there is no question that all employees are not disci-
plined in writing each time their work is stacked. The
experienced operators are given more leeway in setting
up their machines to facilitate break and lunchtimes.
They are given this leeway because they can accomplish
the creeling procedure with a minimum of waste and still
maintain a quality yarn. I do not doubt that the five-can
limit for proper creeling has a valid application to most
operators, especially those less experienced than Dunlap
but the evidence shows that supervisors only discipline
the operators if quality abuses result from earlier creel-
ing. If the problems created by creeling early, where ex-
perienced operators are concerned, always created
abuses the supervisors would not deal with it without
discipline as often as they do. The supervisors admit that
stacking work has always been a problem but obviously
it has not always been an unacceptable procedure. Much
time was spend on explaining the written procedure of
creeling and the time studies on which it is founded but
when supervisors or leadmen are attending the machines
in the operators' absence, they do not perform creeling.
Creeling is for the operator and is programmed by the
operator to occur at given times. One method an opera-
tor employs to program her machine is by stacking her
work. There is little doubt that stacking of work by all
operators could result in yarn loss but supervision allows
selected stacking of work based on maintenance of qual-
ity. As long as an operator can maintain yarn quality, su-
pervisors have little to say or do about how the opera-
tors run their machines.
Dunlap's history of discipline is no less sparse for an 8-
year period than Sarvis or White. Dunlap's past disci-
pline through 1978 was for attendance. Her prior job
performance discipline occurred in 1976 and 1977 and
only the 1976 discipline involved her performance on the
machine This is not the history of an employee who has
trouble doing her job. It does serve to point out two fac-
tors. Reprimands were seldom issued to Dunlap no
matter how many talk sheets she had and talk sheets
definitely were not issued for each infraction. The con-
trolling factor in the discipline past and present was the
discretion of the supervisor. Albeit, the oral warning is
considered part of the progressive system of discipline, it
is not accumulated against the record of an employee as
the discretionary talk sheet and reprimand. Under the
present system, a supervisor can by exercise of discretion
give an employee the necessary written discipline in a
12-month period and the employee will be automatically
terminated. The general tone of Mishoe's testimony leads
one to believe that Dunlap violated an operational proce-
dure that always resulted in bad production and there-
fore merited discharge. The record evidence as a whole,
however, convinces me that stacking of work by an ex-
perienced operator with good production, like Dunlap,
was not a problem but rather was an incident that occurs
infrequently without discipline and was seized on by Re-
spondent to discipline Dunlap. As Gilbert stated, the is-
suance of a third reprimand has to be thought out, all
factors must be weighed. There is no evidence of the
effect of Dunlap's stacking of work which leaves the cir-
cumstance itself standing alone as all other disciplines in
the record. The record evidence clearly shows that
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dunlap was engaged in union activity and was very visi-
ble among the plant employees. Supervisors, despite their
protestations to the contrary, knew of Dunlap's union in-
volvement and from several sources. One such source
was the reprimand issued by Mishoe and Lee on October
3, 1983, which contained the supervisors' note that
Dunlap would take the matter to the Labor Board. The
implementation of Respondent's progressive discipline
system is evidenced by the written discipline issued to all
employees. The only automatic discipline in the system is
the termination of employment after receipt of the third
reprimand. If the determination of management is not to
discipline then the automatic termination would not
follow. Discretion would veto the automatic feature of
the discipline system as it has always done. I do not
credit Gilbert's testimony that all discharges are handled
as Dunlap's was, and I find support for this credibility
resolution in the ambivalence of Mishoe's testimony on
the matter. Something was different about Dunlap's dis-
charge and it called for an extended consideration by a
management team. It is clear to me that Respondent was
bent on discharging Dunlap and the best it could rely on
was her stacking of work. Equally as clear is the fact
that stacking work is not the real reason nor is it the
only reason. In view of the presence of antiunion bias in
Respondent's supervisors as manifested by violations of
Section 8(a)(1) previously found and particularly those
violations directed at Dunlap and the unusual manner in
which the discharge was handled, I conclude and fmd
that the real reason for Dunlap's discharge was her
known union activity and union sympathy. The General
Counsel, thus, has sustained his burden of proving dis-
criminatory action against Dunlap by Respondent. I fur-
ther find and conclude that in the absence of her union
activity, Respondent would not have disciplined Dunlap
but would have merely counseled her as it did with so
many other employees for the same or similar infrac-
tions. Therefore, there is no just cause shown in this
record for the discipline of Dunlap by the discretionary
issuance of her third reprimand. It follows that both the
reprimand and the automatic termination violate Section
8(a)(1) and (3) of the Act.
ADDITIONAL CONCLUSIONS OF LAW
1. By soliciting its employees to report on union activi-
ty among employees and to recall their signed union
cards, Respondent has interfered with, coerced, and re-
strained its employees in the exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act.
2. Respondent has, through Supervisors Gilbert and
Hagwood, threatened employees in violation of Section
8(a)(1) of the Act.
3. Respondent has, through Supervisors Gilbert, Hag-
wood, Mishoe, and Floyd, interrogated employees about
their union activity and given employees the impression
that their union activity is under surveillance in violation
of Section 8(a)(1) of the Act.
4. Respondent has, by restricting the in-plant move-
ments of employee Dunlap, restrained and coerced its
employees in the exercise of their Section 7 rights in vio-
lation of Section 8(a)(1) of the Act.
5. Respondent has discriminated against Susan Sarvis
in violation of Section 8(a)(1) and (3) of the Act by issu-
ing her a reprimand on December 7, 1983.
6. Respondent has discriminated against Thurman
White in violation of Section 8(a)(1) and (3) of the Act
by issuing him a reprimand on October 7, 1983.
7. Respondent has discriminated against Diane Dunlap
in violation of Section 8(a)(1) and (3) of the Act by issu-
ing her a reprimand on October 12, 1983, and discharg-
ing her on October 13, 1983.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent, having discriminatorily disciplined and
discharged Diane Dunlap, an employee, I find it neces-
sary to order it to offer her full reinstatement to her
former position or, if that position no longer exists, to a
substantially equivalent position, with backpay computed
on a quarterly basis and interest thereon to be computed
in the manner prescribed in E W Woolworth Co., 90
NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977),7 from October 12, 1983, the date of discrimi-
nation that led to Dunlap's discharge, to the date of
proper offer of reinstatement.
7 See generally Isis Plumbing Co., 138 NLRB 716 (1962).