West Point Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 27, 1963

141 N.L.R.B. 819 (N.L.R.B. 1963)

WELLINGTON MILL DIVISION WEST POINT MFG. CO. 819
remedial order herein in order to effectuate the policies of the Act. Respondent's
action in settling the matter with the two aggrieved employees without giving an
opportunity to a representative of the "Union" to be present was apparently predi-
cated upon the mistaken assumption Respondent was entitled to rely upon the provi-
sions in the first step of the contractual grievance procedure . This appears to have
been an isolated incident and to have arisen out of a confusion as to what the rights,
duties, and obligations of the parties are under the contract . Furthermore, the in-
cident appears to have been trivial and there seems to be little likelihood that it will
be repeated Under the circumstances , I have concluded that no substantial purpose
would be served in requiring the Respondent to take action to remedy its technical
violation of the Act.
Upon the stipulated facts and the entire record in this proceeding , I make the
following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Local and International are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent has not violated Section 8(a) (5) and ( 1) of the Act by refusing to
process grievances filed by officers of the Local under the grievance procedure set
forth in its contracts with the Local and International.
4. Respondent violated Section 8(a)(5) and (I) of the Act by adjusting a griev-
ance with two aggrieved employees without giving a representative of the "Union"
an opportunity to be present, when the contractual grievance procedure had not been
invoked and the Respondent had been informed by the "Union" of its interest in
prosecuting the grievance.
Although I have found a technical violation of the Act, for the reasons set forth
above I am not going to recommend that a remedial order be issued , but, instead,
that the complaint be dismissed in its entirety.
RECOMMENDED ORDER
Based upon the stipulated facts and conclusions of law and upon my conclusion
that it is not necessary , in order to effectuate the policies of the Act, that a remedial
order be issued in this proceeding , it is recommended that the complaint herein be
dismissed in its entirety.
Wellington Mill Division West Point Manufacturing Company
and Textile Workers Union of America, AFL-CIO
Wellington Mill Division West Point Manufacturing Company
and Textile Workers Union of America , AFL-CIO. Cases Nos.
11-CA-1821 and 11-CA-1893. March 27, 1963
DECISION AND ORDER
On April 27,1962, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint. Thereafter, the Charging Party and the Respondent filed ex-
ceptions to the Intermediate Report together with supporting briefs.
141 NLRB No. 73.
708-006--04-vol . 141-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as noted herein.
The Trial Examiner found that the Respondent violated the Act by
the disparate application and enforcement of its no-solicitation rule
banning any person from engaging in "union organizing" during work-
ing hours,' in that Respondent sanctioned the distribution of a gen-
erally antiunion magazine article during working hours but then dis-
charged employee McKinney when he asked employees, also during
work time, to read a prounion paragraph in the article. We disagree
with this finding. We agree rather with the Trial Examiner's find-
ing, made with respect to the discharge itself, that the real reason for
such discharge was McKinney's prounion activities and that his as-
serted violation of the no-solicitation rule was only used as a pretext
to cover up the real reason therefor. Accordingly, as there was no
actual application and enforcement of the no-solicitation rule against
McKinney, there is no basis for the Trial Examiner's finding that the
rule was disparately applied and enforced against him in violation
of the Act.
We base our above-noted agreement with the Trial Examiner's
"pretext" finding on the following : McKinney was one of the Union's
earliest and strongest supporters. He joined discriminatee Allen in
contacting a representative of the Union. Thereafter, he visited em-
ployees at their homes and solicited their signatures on applications for
union membership. McKinney and Allen together obtained 53 such
signatures in a week. McKinney wore a union button openly in the
plant and this was known to management. Moreover, he was inter-
rogated by management regarding the Union's strength, and told that
management would "hate to see him involved" with the Union. Shortly
thereafter, and only a few days after the discriminatory discharges of
Allen and Evans, McKinney, an employee with 15 years of satisfactory
service, was summarily discharged, allegedly for violation of Respond-
ent's no-solicitation rule. At the same time that Respondent was as-
sertedly concerned with an interference by McKinney with the work
of others in violation of the no-solicitation rule, it sanctioned and ap-
proved the distribution by overseers and second hands, and even by
Porterfield whom it did not consider a supervisor, of antiunion
' The rule provides for discharge of any person who carries on union organizing activi-
ties during working time and thereby "interferes with his own work or the work of others."
WELLINGTON MILL DIVISION WEST POINT MFG. CO. 821
literature during work time, which literature, in some instances, em-
ployees were permitted to read on work time. Moreover, while Wil-
liamson, the supervisor who discharged McKinney upon learning
of his violation of the rule, told McKinney at the time of the discharge
that it was for violation of the rule, he also told him that it was not
his (Williamson's) doing but that "the orders carne from higher up."
However, the record is devoid of any evidence that those "higher
up" had even been apprised at that time of McKinney's violation of
the rule. It also appears that, a few minutes after the discharge,
Williamson told another employee that he had his orders and it was
McKinney's job or his. It thus appears that the order to terminate
McKinney was issued before the solicitation for which he was allegedly
discharged.
In view of the foregoing, and considering Respondent's union
animus as evidenced by its many unfair labor practices, and particu-
larly the "pretext" discriminatory discharges of Allen and Evans, we
find that the reason assigned for the discharge of McKinney was a pre-
text and that the true reason was McKinney's leadership and activity
in the Union? We find, therefore, that by the discharge of McKinney
the Respondent violated Section 8 (a) (3) and (1) of the Act, as found
by the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, except for paragraph 1(f) and its counterpart in the
Appendix?
MEMBER RODGERS , dissenting in part :
I would find that McKinney was lawfully discharged for flagrantly
violating a valid no-solicitation rule. Moreover, I would further find
' See Idaho Potato Processors , Inc., 137 NLRB 910. Cf. N.L .R.B. v. Overnight Trans-
portation Co., 308 F. 2d 279 , 290 (C.A. 4).
In our view of the facts , therefore , and contrary to our dissenting colleague's position,
this case does not involve the application of N.L.R B. v. United Steelworkers of America,
CIO (Nutone, Inc., Intervenor ), 357 U.S. 357. Nor, contrary to our dissenting colleague's
assertion , does it involve exempting McKinney from a valid no-solicitation rule merely
because he was a union leader . It involves simply another "pretext" discharge situation
which did protect McKinney from discharge for unlawful reasons where the asserted law-
ful reason , enforcement of the rule , was only used as a pretext.
IInterest at the rate of 6 percent per annum shall be added to the backpay to be com-
puted in the manner set forth in Isis Plumbing d Heating Co, 138 NLRB 716 However,
for the reasons given in his dissent in that case , Member Rodgers would not award interest
to the backpay awards of employees Allen and Evans.
The Appendix attached to the Intermediate Report is hereby modified by adding the
following immediately below the signature line at the bottom of the notice:
NOTE.-We will notify any of the above -named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
The Appendix is further modified by deleting the words "60 days from the date it bears"
in the next to the last sentence of said notice , and inserting in its place , the words "60
11consecutive days from the date of posting... .
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent did not disparately apply and enforce its plant
rule with respect to McKinney as found by the Trial Examiner.
The facts with respect to McKiimey's discharge are simple. On
September 20, 1961, the Respondent posted the following plant rule
on its bulletin boards:
No person will be allowed to carry on union organization activities
in the plant during working hours. Anybody who does so and
thereby interferes with his own work or the work of others will
be discharged.
McKinney was well aware of this valid plant rule. But despite the
rule, and only 8 days after its posting, McKinney spent approximately
2 hours interrupting the work of some 10 employees seeking support
and sympathy for the Union. When some of the employees complained
to Supervisor Williamson that their work had been interrupted by
McKinney, and when Supervisor Williamson had personally observed
McKinney interrupting the work of some three employees, Williamson
discharged McKinney.
No attack has been made on Respondent's posted rule. Instead the
narrow issue posed is whether it is an unfair labor practice for an em-
ployer to enforce against his employees a plant rule which all parties
concede to be valid, while the employer is himself engaged in conduct
prohibited by the rule.' In N.L.B.B. v. United Steelworkers of Amer-
ica, CIO (Nutom, Inc., Intervenor), 357 U.S. 357, the Supreme Court,
when confronted with this exact issue, held that an employer could
distribute antiunion literature and otherwise engage in antiunion soli-
citation while at the same time enforcing a valid no-solicitation rule
prohibiting similar conduct on the part of its employees. I cannot
distinguish Nutone from the instant case. Accordingly, I cannot find,
as did the Trial Examiner, that the Respondent violated the Act by
enforcing its plant rule with respect to McKinney.
It is also clear that McKinney knowingly and flagrantly violated a
validly promulgated rule, that discharge was the announced penalty
for the violation of the rule, and that he was discharged when Respond-
ent learned that the rule had been breached. Unlike my colleagues, I
cannot infer from the facts in this record that McKinney was exempt
from the plant rule merely because he was one of the Union's earliest
and strongest supporters or because he wore a union button in the plant.
Nor will I speculate that Respondent had issued an order to terminate
McKinney before the above-described solicitation. There is absolutely
no record evidence supporting such speculation.
' In the instant case, the record clearly shows that Head Loom Fixer Porterfield is a
supervisor within the meaning of the Act, and that only Respondent ' s supervisors dis-
tributed to the employees an article entitled "The Henderson Story" which espoused an
antiunion point of view.
WELLINGTON MILL DIVISION WEST POINT MFG. CO. 823
Accordingly, I would find that McKinney was discharged for violat-
ing a valid rule, and that his discharge was not in violation of Section
8(a) (1) and (3) of the Act.
CONSOLIDATED INTERMEDIATE REPORT
On September 29, 1961 , Textile Workers Union of America, AFL-CIO, herein
called the Union , filed charges in Case No. 11 -CA-1821 against Wellington Mill
Division West Point Manufacturing Company, Anderson , South Carolina, herein
called the Respondent . On October 5, 1961, the Union filed charges in Case No.
11-CA-1823 against the Respondent . On November 7, 1961, the General Counsel i
issued an order consolidating cases, a consolidated complaint , and notice of hearing.
On November 8, 1961 , the Respondent filed an answer. On December 4, 1961,
the General Counsel issued an amendment to the consolidated complaint, and on
December 6, 1961, the Respondent filed an answer thereto. As thus amended, the
complaint alleges that since August 16, 1961, the Respondent has interfered with,
restrained , and coerced its employees in certain specified respects , and that the Re-
spondent discharged Milford Allen on September 25, Luther Jackson Evans on
September 27, and H. C. McKinney on September 28,2 and has since failed and
refused to reinstate them , because of their membership in and activities on behalf
of the Union , and because they engaged in concerted activities . It is alleged
that this conduct violated Section 8 ( a)(1) and ( 3) of the National Labor Relations
Act, as amended ( 61 Stat . 136), herein called the Act. The answer admits that
the Respondent terminated the three employees on or about the dates set forth in
the complaint , but denies the commission of any unfair labor practices.
A consolidated hearing was held before Trial Examiner Sydney S. Asher, Jr., on
December 12 to 15, 1961, inclusive , at Anderson, South Carolina. All parties were
represented and participated fully in the hearing. At the close of the hearing, the
Respondent moved to dismiss the complaint . Ruling on this motion was reserved.
For reasons stated hereafter, the motion is now granted in part and denied in part.
On January 31, 1962, all parties filed briefs , which have been duly considered. In
the meanwhile , on December 30, 1961, on petition of the Regional Director, Hon.
Robert Martin , Jr., United States district judge for the Western District of South
Carolina, enjoined the Respondent from certain conduct, pending determination of
the merits by the Board .3 The injunction is still in effect.
Upon the entire record in these cases , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
There is no dispute , and it is found , that the Respondent is, and at all material
times has been , engaged in commerce as defined in the Act, and its operations meet
the Board 's jurisdictional standards ,4 and that the Union is, and at all material times
has been , a labor organization as defined in the Act.
A. Background
During all material times, the Respondent 's Wellington Mill plant in Anderson-
the only one involved herein-has consisted of several buildings in which approxi-
mately 500 workers are employed. There are three shifts: the first from 7 a.m.
to 3 p .m., the second from 3 to 11 p .m., and the third from 11 p .m. to 7 a.m. The
top executive in the plant is Andrew B . Calhoun , the Respondent 's vice president.
Next in command is J. R. Swetenburg ,5 plant manager.
Late in July some of the Respondent's employees began efforts to organize and
contacted representatives of the Union . A union committee was formed in August
' The term "General Counsel" Includes the General Counsel of the National Labor
Relations Board and his representative at the hearing
2 All dates herein refer to the year 1961 unless otherwise noted
Johnston v Wellington Manufacturing Division , West Point Manufacturing Company,
49 LRR'M 2536.
4The Respondent is a corporation engaged in the manufacture and production of cloth
fabrics, with a plant located at Anderson , South Carolina During the 12 months prior
to November 7, 1961, the Respondent caused materials valued at more than $100,000 to
be shipped to its Anderson plant from sources outside the State of South Carolina. Dur-
ing the same period, it shipped products valued at more than $100, 000 from its Anderson
plant to destinations outside the State.
5 Referred to in the complaint as J R . Sweetenburg
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and a number of employees were solicited at their homes to sign applications for
union membership. Some did so. Calhoun first became aware of these union ac-
tivities early in September.
On September 15 the Union wrote to the Respondent claiming to represent a
majority of the production and maintenance employees in the plant, and requesting
a meeting for the purpose of negotiating a contract. On or about September 20 the
Respondent replied, declining to recognize the Union as bargaining representative
of the employees until it was certified by the Board. Meanwhile, on September 18,
the Union had filed with the Board a petition seeking certification, Case No. 11-RC-
1536 (not published in NLRB volumes).
B. Interference, restraint , and coercion
1. Interrogation
The complaint alleges that the Respondent "interrogated its employees concerning
their union membership, activities, and desires and those of other employees." This
is alleged to have occurred through named supervisors on specific dates. The answer
admits that the named individuals (with one exception discussed below) are super-
visors, but denies that any illegal interrogation occurred.
a. By Snipes
John R. Snipes was at all material times overseer of weaving at the Respondent's
plant. The complaint alleges that he illegally interrogated employees on or about
August 16, September 14, and October 16.
In mid-August Snipes asked Milford Allen, a weaver who had been active in
the Union's organizing campaign , why he (Allen) was dissatisfied. Allen answered
that he was dissatisfied because his wages had been cut. Snipes replied that the
Respondent was "paying for warps now " 6 The Union was not mentioned.? Snipes
testified that at that time he knew the weavers "were dissatisfied" and Allen "probably
could tell me about it," but did not "know anything about a union ." I find nothing
in Snipes' conduct on this occasion which was violative of the Act 8
In August, H. C. McKinney, Jr, a weaver, had been transferred to smash hand
at his own request. McKinney was active in the Union's campaign, and on Septem-
ber 14 came to work openly wearing a button reading "Union Committee TWUA
AFL-CIO " Snipes summoned McKinney to his office that day and asked McKinney
how he liked his smash job. McKinney answered that he liked it, but wanted to
keep his set of looms. Snipes then stated- "I heard you were wearing a union
button." McKinney, who was then wearing the button on his overalls, answered-
"Yes " Snipes asked why he was wearing the button and what his " gripes" were.
McKinney replied that the weavers were overloaded. When Snipes asked if McKinney
had ever worked under a union, McKinney responded that he had not, but that he
believed in the Union. Snipes then asked how many employees the Union "had
signed," but McKinney refused to say.9 By thus seeking to elicit information regard-
ing the Union's strength, I find that Snipes overstepped the bounds of permissible
interrogation. 10
On September 25, Charles R. Walker, a loom fixer on the first shift, came to work
openly wearing a union button like that previously described. Snipes remarked to
Walker that he never would have thought that Walker was a member of the Union.
Walker replied that he was wearing the button because he had heard that Carl Wood,
his second hand, had said that he (Walker) was going to be discharged. Snipes
responded that he did not think there was any truth to it.ii I find nothing in Snipes'
remarks on this occasion which violated the Act.
8 This referred to the fact that weavers were on piece rate and lost earning potential
whenever there was an insufficient number of warps to keep them busy full time Ap-
parently the Respondent had, prior to mid-August, arranged to compensate the weavers.
7 The findings of fact regarding this conversation are based upon a synthesis of the
testimony of Allen and Snipes.
8Blue Flash Express, Inc, 109 NLRB 591
9 The findings of fact regarding this conversation are based upon McKinney's testimony,
corroborated -in part by that of Snipes. Snipes denied asking how many had signed
union cards, testifying that McKinney volunteered that "a great number" had done so
Snipes' denial in this respect is not credited
io The fact that McKinney was wearing a union button at the time did not license Snipes
to engage in illegal questioning. See Standard-Coosa-Thatcher Company, 85 NLRB
1358, 1363
"The findings of fact regarding this incident are based upon Walker's testimony.
WELLINGTON MILL DIVISION WEST POINT MFG. CO. 825
b. By Calhoun
The complaint, as amended, alleges that Calhoun on September 14 illegally inter-
rogated employees concerning their union activities, and that on and after Septem-
ber 14 he induced them "to abandon their union activity by interrogation . . . in
groups in his private office and telephone conversations, seeking thereby to determine
their `gripes' and the causes of trouble in the mill."
Early in September, after he had learned of the Union's activities, Calhoun began
calling small groups of employees into his office. After explaining the Respondent's
program and its financial situation, Calhoun asked the employees "if they had any
gripes to make . . . and if possible we would look into them and see if anything
could be done about them." At one of these meetings, on or about September 14,
Allen replied that weavers were not being paid for warps and Calhoun explained that
this had already been remedied. McKinney also stated, in reply to Calhoun's in-
quiry at this same meeting, that every time a raise was granted, the employees would
in fact earn less than they had before. At another such meeting, Calhoun stated
that there was a disturbance going on in the mill, and he was trying to find out what
it was. George Stevens, a loom fixer, replied that some weavers had been given
extra looms; Calhoun agreed to "check into" the matter. Junior Lee, another loom
fixer, said: "I guess you are all talking about the Union" and Calhoun responded:
"That or anything at all that might cause the people to be upset." 12 The General
Counsel maintains in his brief that these meetings "were held for the express purpose
of determining the employees' interest in the union . . . to determine union feeling
among the employees." I conclude, however, that by questioning the employees at
the meetings to ascertain if they had any "gripes" the Respondent did not violate the
Act. I further find no evidence of any telephone conversations between Calhoun
and any employees.
c. By Massey
J. A. Massey was, at all material times, second hand in the Respondent's cloth
room on the second shift. The complaint, as amended , alleges that he illegally
interrogated employees concerning their union activities on September 20 and 26.
Ruby Allen, an inspector in the cloth room on the second shift, testified that in
September Massey inquired if she "had been asked on the job to sign a union card
by anyone" [emphasis supplied] and that she replied in the negative. Massey denied
asking her anything about a union card. I deem it unnecessary to resolve this con-
flict. Even if Massey had asked the question attributed to him, such an inquiry by
a supervisor to an employee under his supervision, limited to activities on working
time, is not, in my opinion, improper.
d. By Jordan
Sam Jordan was, at all material times, personnel director at the Respondent's
plant. The complaint alleges that on or about September 20 he interrogated the
Respondent's employees about their union membership, activities, and desires.
In September, Jordan asked Ernest E. Ivester, a rank-and-file employee of the Re-
spondent, if he would be willing to help organize a group "for those not interested
in either . . . side." 13 Ivester replied that if there were enough people who would
help, he "would get something started." Jordan then, on working time, inquired of
from 15 to 25 employees whether they would be willing "to meet and discuss the
problem. And ask any questions that they might have to ask." Jordan recorded
the names and addresses of those who indicated willingness to attend, and turned
over the list to Ivester. As this took place during the Union's campaign, it is clear,
and I find, that "the problem" which Jordan had in mind was the Union, and the
employees approached by Jordan so understood. It is therefore found that, by
questioning employees regarding their willingness to attend a meeting to be devoted
to discussing the Union, Jordan illegally interrogated them in violation of the Act.
e. By McCurley
Herbert McCurley was, at all material times, overseer of the cloth room in the
Respondent's plant. The complaint, as amended, alleges that in October he illegally
L The findings of fact regarding these meetings are based upon a synthesis of the
testimony of Calhoun, Allen, McKinney, and Joel Atkins.
13 Both Ivester and Jordan had previously been separately approached on the subject
by Reverend R C. Emory. While neither Ivester nor Jordan put it in so many words, it
is clear from the context in which this Ivester-Jordan conversation occurred that they
both expected the proposed group to exhibit an antiunion complexion
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogated the Respondent 's employees regarding their union membership , activities,
and desires.
Sometime in October, McCurley asked Ruby Burden , an inspector in the cloth
room , if she "had always been happy down there ' and what she "thought about the
Union . Burden answered that she "hadn 't been giving it too much thought." 14 It
is found that such interrogation regarding Burden 's union sympathies constituted
conduct proscribed by the Act.
f. By Swetenburg
The complaint, as amended , alleges that in October , Swetenburg illegally inter-
rogated employees of the Respondent.
On a date not disclosed in the record Swetenburg asked employee Ruby Allen
how her husband "felt about the Union at Wellington" or about "the mess we were
having." Allen replied that he had not mentioned the subiect.15 Allen 's husband,
Marion ("Tag") Allen, was not an employee of the Respondent . The General
Counsel contends that this constituted an indirect effort to ascertain from Ruby Allen
her own feelings regarding the Union . I cannot agree. In my opinion the language
used does not indicate that the question was designed or intended to elicit informa-
tion regarding the union sympathies of Ruby Allen or of any other employee of the
Respondent . It therefore did not violate the Act.16
g. By Porterfield
James Porterfield was at all material times head loom fixer on the second shift.
The complaint , as amended, alleges that in September Porterfield "induced and co-
erced . . . employees to advise the Company where they stood , reference thereby
being to the employees' position on the Union ." The answer denies that Porterfield
was a supervisor.
In addition to evidence regarding Porterfield's duties and authority , the General
Counsel produced testimony that during working time on September 26 Porterfield
sought to elicit from McKinney information regarding "the union rules, regulations,
the dues, and . . . what kind of a fellow [Allen] was" and if the Union was "pretty
strong." In view of the findings above that Snipes , Jordan, and McCurley engaged
in illegal interrogation of employees , evidence that Porterfield also did so (assuming
that he was a supervisor ) would merely be cumulative . As the remedy would be
the same in any event , I find it unnecessary to pass upon Porterfield 's supervisory
status. 17
2. Inducing the removal of union badges
The complaint alleges that the Respondent "induced and coerced its employees
into removing their union badges." This is alleged to have been done by George
Cromer about September 26 and by Calhoun on or about September 28. It is fur-
ther alleged that on or about September 26 Massey "attempted to induce and co-
erce . . . employees to remove their union badges." While admitting that Cromer,
Calhoun , and Massey were supervisors, the answer denies any conduct on their part
violative of the Act.
a. By Cromer
George Cromer 18 was, at all material times , second hand in the cardroom on the
second shift . On or about September 14, Douglas Bryant , a utility man in the card-
room on the second shift , began wearing in the plant a union badge similar to that
already described . On September 24, Cromer approached Bryant and said: "Doug,
don't tell nobody that I told you this, but for your own interest and the interest of
your job , it is best that you turn in your badge ." Bryant replied that he would think
about it. Later that day Cromer told Bryant : "Doug, I wish you would turn in your
badge." Bryant again answered that he would consider the matter . 19 It is clear that
14 The findings of fact regarding this conversation are based upon Burden ' s testimony.
Although McCurley testified , he did not mention this incident
16 The findings of fact regarding this conversation are based upon a synthesis of the
testimony of Allen and Swetenburg
19 Compare Orkin Exterminating Company of Kansas, Inc, 136 NLRB 630
11 Pottsville Community Hotel Co , Inc , 136 NLRB 463 , footnote 1
1R The transcript is hereby corrected by striking the name "Cromley " and substituting
therefor the name "Cromer " at page 510 , lines 5, 9, 16 , and 24 , page 521, line 11 ; page
522, line 18 : page 527 , line 25; and page 528, lines 4 and 21.
19 The findings of fact regarding these two conversations are based upon Bryant's un-
denied testimony Cromer did not testify.
WELLINGTON MILL DIVISION VEST POINT MFG. CO. 827
Cromer used a veiled threat of reprisal to induce Bryant not only to cease wearing
the badge, but also to "turn it in," in short, to notify the Respondent symbolically
that he had abandoned protected concerted activities. As will be developed below,
the threat was fully effective and produced the expected result.
b. By Calhoun
On or about September 26, Bryant, through W. A. Whitlock, overseer of the card-
ing department, sought and obtained an interview with Calhoun and Swetenburg.
Bryant said that he wanted to talk about the Union. When Calhoun asked: "Did
you come up here on your own accord?" Bryant replied: "Yes." Bryant stated that
he would like to turn in his union badge, and Calhoun and Swetenburg answered
that they were glad he was doing so. Bryant removed the union button he was wear-
ing and laid it on Calhoun's desk. Calhoun said he did not want it, and that Bryant
could throw it in the wastepaper basket. Bryant did so. Calhoun then stated: "We
believe what you have got to say, I don't know what your fellow workers in the mill
are going to think about it, unless you tell them." 20
Despite Bryant's opening statement that he came of his own accord, I am persuaded
that this was not a voluntary act on his part. Bearing in mind what had occurred
2 days earlier, I find that Bryant's turning in his union button was the direct result
of Cromer's threats described above. Thus, Bryant's mind was already made up
before he conferred with Calhoun and Swetenburg. Nothing which they said in that
conference therefore contributed to Bryant's decision to surrender his union badge; nor
was he at that time offered any inducement to do so. However, Calhoun's direction
that Bryant tell other employees what he had done constituted illegal interference.
c. By Massey
On or about September 26 Massey told employee Luther Jackson Evans that
Bryant had turned in his badge to Whitlock, that Whitlock and Bryant were going to
see Swetenburg and Calhoun the next morning, and that he (Evans) could get the
same deal if he would turn his badge in. He offered to call McCurley or Swetenburg
to the cloth room that night "to explain a few things about the Union" if Evans wanted
to talk to them. Evans replied that he "would think it over." On the same day, while
Evans was working, Massey approached him and again stated that the same deal
still went, he would get McCurley or Swetenburg to talk to Evans if Evans would
turn in his badge, and added that in a few months he (Massey) might have to go
to the hospital, and Evans might have a chance to be promoted to second hand.
Evans once more responded that he would consider the matter?' From the above
it is clear, and I find, that Massey, by an offer of benefit, and by using as a lever the
fruits of Cromer's illegal threat to Bryant, attempted to persuade Evans to sur-
render his union badge. The fact that this device was unsuccessful does not make it
any the less coercive.
3. Alleged surveillance
The complaint alleges, and the answer denies, that the Respondent, through Sweten-
burg, "placed its employees under surveillance while they were engaged in their normal
work duties" on August 16, October 23, and October 24
On October 18 Swetenburg came to the cardroom and remained there for about
45 minutes, watching Bryant. On October 23, when Bryant came to work, Sweten-
burg was again in the cardroom. Bryant began picking up waste and putting it in
the drawing frame, as part of his work. Swetenburg came over to him and asked:
2s The findings of fact regarding this conference are based upon a synthesis of the
testimony of Bryant, Calhoun, and Swetenburg Bryant at first testified that Calhoun's
parting admonition was that Bryant would have to prove himself by going out and talk-
ing against the Union, but later admitted that what Calhoun "could have" said was that
he (Calhoun) believed what Bryant told him, but he did not know how the people in the
plant would feel about it, and "that was tip to you and the people out in the mill "
21 The findings of fact regarding this conversation are based upon Evans' credited testi-
mony Massey denied making any such statements His denial is not credited. The
Respondent argues that the improbability of promoting a young and inexperienced man
to second hand indicates the falsity of Evans' testimony I cannot agree Evans may, it
is true, have been naive to believe that he could be offered the promotion, but he testified
that he took the promise seriously . Moreover, his testimony is consistent with the
Respondent's eagerness to have union badges turned in, as shown by Cromer's threat to
Bryant In any event, Evans impressed me as a sincere, forthright, truthful, and
accurate witness.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"What are you supposed to be doing ?" Bryant replied that he was supposed to be
picking up waste. Bryant carried the waste to the picking room and there weighed it.
Swetenburg followed and stood by the scales while Bryant was weighing the waste.
In all, Swetenburg spent 15 minutes watching Bryant that day. Swetenburg then
conferred with Whitlock . On the following day, October 24, substantially the same
course of conduct was repeated , except that Swetenburg did not speak to Bryant.
Swetenburg 's duties require him to spend an average of about half his working
day in the manufacturing areas. He admitted that , during the period here material,
he visited the cardroom "quite a bit" to check on the blends 22 and new machinery.
He further explained that Bryant is supposed to pick up the waste from various
machines in the cardroom , haul it to the picking room , and there weigh it . This waste
is later reused , As the Respondent utilizes six different fibers, alone or in combina-
tion with others, it is important that the waste from a particular blend be fed back in
with that same blend ; otherwise "contamination " of the cloth results. For this rea-
son the manner in which Byrant performs his function-i.e , whether he keeps dif-
ferent blends separated or mixes them-can affect the quality of the Respondent's
merchandise . Moreover , Calhoun testified credibly that supervisors were expected
to observe the employees while at work.
The General Counsel maintains , in effect, that the manner in which Swetenburg
watched Bryant at work constituted harassment as a reprisal for Bryant 's known
support of the Union . While the matter is not in my opinion entirely free from
doubt,23 I conclude that the General Counsel has failed to establish that Swetenburg's
activities on October 18, 23, and 24 constituted conduct violative of the Act. I
further find no evidence of any instance of surveillance on or about August 16.
4. Aiding the Citizens Club
The complaint , as amended , alleges that the Respondent "aided, abetted , gave sup-
port to and solicited members for an antiunion movement designated the `Citizens
Club.' " It is alleged that this was done by Jordan in September and October , Cromer
on October 5, Calhoun and Swetenburg in September and October , and Ernest
Ivester, "acting as agent of Respondent ," in September and October.
a. By Jordan
It has already been related that in September , Jordan asked Ivester to help organize
a group which they both expected to be antiunion . Ivester replied , in effect , that his
willingness to do so might depend on how many other rank-and-file employees could
be counted upon to help. Jordan asked some employees about the matter and
recorded the names and addresses of those who indicated willingness to attend a
meeting. This list Jordan turned over to Ivester . 24 Ivester than mailed invitations
to attend a meeting to those appearing on the list and to other employees of the
Respondent.
It is clear from the foregoing , and I find, that Jordan approached Ivester with the
idea of forming a group to combat the Union , then ascertained the identities of
sympathetic employees , and finally gave Ivester substantial aid in organizing such a
group by supplying him with the names and addresses of employees considered likely
to support that kind of movement . Indeed , I consider it doubtful that any such move-
ment could or would have been successfully launched without Jordan 's help. By
this conduct, Jordan illegally interfered with the employees in the exercise of rights
guaranteed in the Act 25
b. By Cromer
Early in October, Cromer approached Bryant with a yellow sheet of paper
in his hand and asked him if his address was correct , and checked it off. Cromer
then went to another employee and wrote something on the same sheet of paper.
A blend is a combination of different fibers.
21 It is true that Bryant had turned in his union badge several weeks before Swetenburg's
visits to the cardroom . However , Bryant thereafter continued to attend union meetings.
Moreover , his name is included as a discriminatee in the charge in Case No. 11-CA-1823,
which was filed by the Union on October 5, only a short while before the Swetenburg
visits
24 Jordan testified that he requested Ivester to convey the names and addresses to
Reverend Emory I do not credit this part of Jordan ' s testimony , as Ivester ' s description
of the incident omitted mention of any such request
ab Compare Sperry Gyroscope Company, Division of Sperry Rand Corporation, 136
:NLRB 294
WELLINGTON MILL DIVISION WEST POINT MFG. CO. 829
That same week Bryant received through the mail an invitation to attend a meeting
of the Citizens Club-the organization which, as described below, grew out of
Ivester's efforts. The General Counsel urges that this incident helps tie the Respond-
ent to the Citizens Club, on the assumption that Cromer turned Bryant's address over
to the Citizens Club. Such an assumption seems to me to be unwarranted. I
therefore base no finding upon Cromer's action in this regard.
c. By Calhoun and Swetenburg
There is no evidence to connect either Calhoun or Swetenburg to Jordan's assistance
to Ivester. Nor is there anything in the record indicating that Calhoun or Swetenburg
in any way aided the Citizens Club.
d. By Ivester
Ivester was the principal moving spirit among the employees in getting an anti-
union movement underway and advanced his personal funds (later reimbursed)
to start it. When the Citizens Club came into existence, largely due to his efforts,
he became its first and only chairman. He addressed meetings of the Citizens Club
on the subject of why a union would not help the employees, and wrote a letter to
the editor of a local paper, which was published, on the same subject.
The General Counsel and the Union contend that Ivester was an agent of the
Respondent and that therefore when he formed the Citizens Club and wrote a letter
to the editor (which they maintain contained a threat) it was within the scope of
his authority and the Respondent is bound thereby .26 I find no merit in this conten-
tion. The mere rendering of aid to Ivester did not, in my opinion, create a principal-
agent relationship. Alternatively the General Counsel contends that the Citizens
Club was a mere creature of the Respondent, in effect its alter ego, so as to make
every act of the Citizens Club attributable to the Respondent, even though unknown
to the Respondent 27 I cannot agree. The record shows clearly that neither Ivester
nor the Citizens Club received any aid from the Respondent other than Jordan's
list; the Respondent contributed no money to the Citizens Club and did not furnish
any stenographic or duplicating services.28 Nor did any official or supervisor of the
Respondent attend meetings of the Citizens Club or have any hand in its program.
Finally, the General Counsel in his brief argues that the "Respondent never once
sought to divorce itself from Ivester . nor even attempt to disavow . Ivester's
subsequent antiunion activity." The short answer is that where, as here, there is no
affirmative obligation to speak , no assumption or legal consequence can flow from
mere silence. I conclude that Ivester was not, at any material time, an agent of the
Respondent.29 A fortiori, those who spoke at meetings of the Citizens Club upon
invitation of Ivester were not subagents of the Respondent.
5. Discriminatory enforcement of rules
The complaint, as amended , alleges that in September the Respondent "discrimina-
torily enforced plant rules . . . prohibiting union activities in the plant during work-
ing hours while initiating , condoning and engaging in antiunon activities." It is
alleged that this coduct was engaged in by Calhoun, Swetenburg, Massey, Ray Perry,
29 The General Counsel in his brief cites Salant and Salant, Inc, 66 NLRB 24; and
Phillips Packing Company, Incorporated, 5 NLRB 272 These cases were decided under
the Wagner Act, which held an employer liable for the conduct of anyone acting in his
interest. This was amended by the Taft-Hartley Act in 1947 to provide that employers
are responsible for acts of their agents
2: Thus the General Counsel would hold the Respondent liable for the contents of a
speech made to the Citizens Club at Ivester's invitation by the former mayor of another
city. However, the General Counsel does not contend that the Respondent is responsible
for the contents of a speech made to the Citizens Club by Reverend Emory. The con-
tention of the Union in its brief that Reverend Emory "was, in Ivester's eyes, acting
as the alter ego of the Company" is so highly untenable as to border on the ludicrous
28 The Citizens Club was permitted free use of the Respondent's meeting hall, but this
was apparently open to the use of all civic organizations At any rate, the General
Counsel disclaimed any contention that the use of this hall was significant.
2n It is therefore unnecessary to determine whether Ivester's letter to the editor con-
tained any illegal threat.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Porterfield, Robert Williamson, and Jordan. The rule in question was posted on the
plant's bulletin boards on September 20, and reads as follows:
No person will be allowed to carry on union organizing activities in the plant
during working hours. Anybody who does so and thereby interferes with his
own work or the work of others will be discharged.
a. By Calhoun and Swetenburg
Sometime in September the Respondent ordered "a good many" copies of a reprint
in America 's Textile Reporter collecting several articles entitled "The Henderson
Story." Generally speaking these articles espoused the employers ' rather than the
unions ' point of view . In opposition to the Union 's organizing campaign , copies of
"The Henderson Story" were distributed to the Respondent 's employees through
the overseers and second hands, with Calhoun's sanction and approval.
b. By Massey
Late in September, during working hours, Massey handed a copy of "The
Henderson Story" to Hazel Bonner, an inspector on the second shift. Massey then
went to Ruby Allen, another inspector, while she was working, and said that he
wanted all of them to look at it. Bonner, Allen, and Grace McKinney, a third
inspector, then gathered in the cloth room and, for about 5 minutes, looked through
the copy which Massey had given Bonner . Massey saw them doing so but said
nothing 30 Bonner took the magazine home with her at the end of the shift.
c. By Perry
Ray Perry was, at all material times, second hand in the Respondent's weaveroom
on the third shift.
Snipes had 20 or 30 copies of "The Henderson Story" in the weaveroom office.
He instructed the second hands to give them out before the shift change. Sometime
after September 25, during working hours, Perry gave a copy to Lois Gray, a pick-out
hand in the weaveroom on the third shift. Perry directed Gray: "Take this and read
it and pass it on to someone that doesn't talk Union " 31 Gray took it home with her
at the end of the shift At least four other copies were in the hands of other weave-
room employees, and some were being read on working time during the third shift.
There is no evidence, however, that Perry noticed this.
d. By Porterfield and Williamson
Robert Williamson was, at all material times, second hand in the Respondent's
weaveroom on the second shift. Porterfield gave out copies of "The Henderson
Story" to employees in the weaveroom during working hours.32 Either Williamson
or Snipes knew that Porterfield was distributing the magazines, but did not protest.
Whether Porterfield was a supervisor or a ranke-and-file employee, his actions in this
matter were sanctioned by supervisors, and I accordingly find that the Respondent
is accountable therefor
e. By Jordan
Jordan personally delivered copies of the notice of September 20 to the overseers
for posting and later checked to make sure that they had been posted in each
department. As has already been described, during working hours he questioned
15 to 25 employees about their willingness to attend a meeting to discuss the Union.
Jordan admitted that this interrogation took place after September 20.
30 The findings of fact regarding this incident are based upon a synthesis of the testi-
mony of Allen, McKinney, and Massey Bonner did not testify. Massey adnu'tted that
he gave a copy to Bonner during working time, but testified that he told her not to read
it in the mill but to take it home with her. He denied that Bonner or anyone else opened
it in his presence. His denial in this respect is not credited
31 The findings of fact regarding this conversation are based upon Gray's undenied testi-
mony Perry did not testify
° Porterfield testified that he told the employees to take the magazines home with them,
but not to read them in the plant Joe Shaw, a weaver on the second shift, testified that
Porterfield gave him a copy during working time without saying anything I deem it un-
necessary to resolve this conflict.
WELLINGTON MILL DIVISION WEST POINT MFG. CO. 831
f. Conclusions
From the above, I find that after September 20 the Respondent established a pattern
of having "The Henderson Story" distributed to employees on working time 33 Indeed,
in some instances the employees were permitted to look through and read parts of
the magazine during working hours.
As will be described in more detail hereafter, McKinney was discharged for asking
employees to read a certain paragraph in "The Henderson Story" on working time.
He Was informed that this conduct violated the rule posted on September 20, quoted
above. But surely, if McKinney's activities concerning "The Henderson Story"
violated the rule, then the Respondent's own conduct regarding the same magazine
was likewise proscribed thereby. The conclusion is inescapable that the Respondent
applied a very liberal standard of conduct for the distribtuion of antiunion literature,
while at the same time enforcing a much more restrictive standard for the discussion
of or distribution of this same literature (or any attempt to counter its effects) by
protagonists of the Union. By such a disparate application and enforcement of the
rule, the Respondent violated the Act.34
6. Threatening reprisals
The complaint alleges that the Respondent, through Calhoun, "threatened its em-
ployees with discharge and other reprisals for engaging in union activity" on or about
September 28, and further posted a notice in August and September "informing the
employees that it was the Respondent's definite view that if the Union were to come
in at the plant it would work to the serious harm of the employees."
On or about September 28, as part of the series of gatherings in Calhoun's office,
the first-shift loom fixers were summoned there. Calhoun informed the assembled
employees that he did not think the Union could do them any good, that it could do
them some harm, and that the Respondent intended to fight the Union to the last
ditch 35 I find that this statement went beyond a mere expression of opposition to
the Union. The warning that the Union could do the employees some harm, in my
opinion, constituted a veiled threat of reprisal violative of the Act.
The notices posted on September 20 contained, among other things, the following:
SINCE THE UNION HAS STARTED UP A CAMPAIGN IN OUR PLANT,
SOME OF YOU HAVE BEEN ASKING QUESTIONS IN REGARD TO
THE FOLLOWING MATTERS. WE HAVE DECIDED TO STATE THE
COMPANY'S POSITION ON THESE SUBJECTS AS CLEARLY AS WE
CAN FOR EVERYBODY ALIKE:
1. IN THE FIRST PLACE, IT IS OUR DEFINITE VIEW THAT
IF THE UNION WERE TO COME IN HERE, IT WOULD WORK TO
YOUR SERIOUS HARM.
The General Counsel contends that this official declaration of "the Company's
position" contains an implied threat of reprisal in violation of the Act. The Board
so held in a case involving a virtually identical notice.36 Accordingly, I find the
notice to be coercive.
7. Issuing a warning slip to Bryant
At the hearing the General Counsel amended the complaint to allege that on or
about September 18 the Respondent, through W. A. Whitlock, discriminatorily issued
a warning slip to Bryant. It was alleged that this conduct violated Section 8(a)(1)
of the Act.
On September 18 or 19 Bryant, during working hours, left his place of work in
the cardroom without permission and went to the cloth room, which is in another
building across a railroad track. There he conferred with Evans about Evans buying
his (Bryant's) automobile. Bryant was wearing his union button. After 5 or 10
minutes Massey (second hand in the cloth room) ordered Bryant to leave, which
Bryant did. Massey then reported the incident to McCurley (cloth room overseer).
31 There was evidence indicating that Thomas Rumsey, second hand in the cloth room on
the first shift, also distributed this magazine on working time. However, as Rumsey
was not named in the complaint , I shall refrain from making any findings regarding his
conduct.
34 W T Grant Company, 136 NLRB 152.
se The findings of fact regarding this statement are based upon a synthesis of the testi-
mony of Walker , Calhoun , and Swetenburg.
31 White Oak Acres, Inc., 134 NLRB 1145.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after this, Whitlock (cardroom overseer) summoned Bryant and stated that
he had received a report that Bryant had been in the cloth room during working
hours on personal business. Bryant admitted this. Whitlock replied that he was
sorry, but he would have to write it up. He then, in Bryant's presence, wrote the
following on a form entitled "Incident Report":
Date: 9-19-61
Employee: Douglas Bryant Dept.: Carding Shift: 2nd
Incident: Staying of [sic] job to [sic] long while visiting other departments
Details:
Employee's Remarks: Went to see Jackie Evans about selling him his car
Supervisor's Actions: Warned employee to not stay of [sic] his job more than
nessary [sic]
Was employee advised that an incident report was being placed in his file?
Yes X No
If so, give date 9-19-61
Supervisor advising: W. A. Whitlock Department Head: W. A. Whitlock
This document was shown to Bryant, then placed in his file 37
The Respondent's "Mill Rules and Regulations," which had been posted on bulletin
boards for many years, state in part:
VISITING DEPARTMENTS
Employees shall not visit departments in the plant except on Mill business,
unless authorized by their department head.
The General Counsel does not contend that Massey violated the Act by ordering
Bryant to leave the cloth room. He maintains, however, that Whitlock's conduct in
making out a written "Incident Report" was discriminatory. I cannot agree. Bryant
readily admitted his breach of posted rules.38 And the use of written reprimands in
one form or another had been company policy at the Respondent's plant since at
least June, before the Union made its appearance. It is accordingly found that the
General Counsel has failed to produce any convincing evidence linking Whitlock's
written reprimand of Bryant to Bryant's prounion activities, or otherwise indicating
its discriminatory nature.
8. Matters not covered in the complaint
The General Counsel introduced evidence tending to show that Calhoun announced
to some employees that he wanted to make a change in the supper hour in the cloth
room. Under certain circumstances the announcement of a unilateral change in
working conditions might amount to a violation of Section 8(a) (1) of the Act, but
the complaint herein does not allege any such violation. The Board has held that
"when an issue relating to the subject matter of a complaint is fully litigated at a
hearing, the Trial Examiner and the Board are expected to pass upon it even though
it is not specifically alleged to be an unfair labor practice in the complaint." 39
In accordance with that rule, I find that the testimony regarding Calhoun's announce-
ment about a change in the supper hour was related to the subject matter of the
instant complaint. However, no effort was made to establish the nature of the pro-
posed change, when it was to go into effect, or Calhoun's motive in making the
S7 The findings of fact regarding these incidents are based upon a synthesis of the
testimony of Evans, Bryant, Massey, and Whitlock.
88 At the hearing Bryant testified:
TRIAL EXAMINER: Mr. Bryant, were you guilty of committing the offense of which
Whitlock accused you?
The WITNESS : Of going out of the cloth room? Yes, sir.
8DMonroe Feed Store, 112 NLRB 1336, 1337; Ford Radio & Mica Corporation, 115
NLRB 1046, 1074, remanded on another point 258 F. 2d 475 (C.A. 2), Supplemental
Decision and Amending Order 122 NLRB 34; Texas Natural Gasoline Corporation, 116
NLRB 405, 411, enforcement denied on another point 253 F 2d 322 (C.A. 5) , and Mid-
South Manufacturing Company, Inc., 120 NLRB 230, 247. Courts seem to differ on this
matter. Compare N L.R B. v. I.B.S. Mfg. Co. et at, 210 F. 2d 634, 637 (C.A. 5), and
N L.R B. v E & B Brewing Company, Inc, at al., 276 F. 2d 594, 598-599 (C.A 6), cert.
denied 366 U.S. 908, with N L R.B. v. Puerto Rico Rayon Mills, Inc., 293 F. 2d 941,
947 (C.A. 1).
WELLINGTON MILL DIVISION WEST POINT MFG. CO. 833
announcement. It is not referred to in the brief of any party. In sum , the matter
was not "fully litigated" at the hearing and therefore need not be decided.
Allen testified on direct examination that, in mid-August, he was asked to work
overtime on the first shift and that when he was about to commence work Carl
Wood, second hand in the weaveroom on the first shift, told him: "Nick, I don't
want you to be talking to nobody; you know what rumor is going on around here."
On cross-examination, Allen testified that what Wood had said was "You know what
is going on down here" rather than "You know what rumor is going on around here."
There is no mention of this incident in the complaint. Nevertheless, I find the event
is related to matters contained in the complaint and was fully litigated at the hearing.
I am therefore required to rule upon it. Allen's versions of this statement were
neither denied nor explained by the Respondent; Wood did not take the witness
stand. I find that the incident occurred substantially as related by Allen on cross-
examination. As described previously, later that same day Snipes asked Allen why
he (Allen) was dissatisfied. Thus what Wood did was to prevent an employee
known to be dissatisfied from discussing his "gripes" with his fellow employees.
Such an attempt to muzzle dissatisfaction and to inhibit free discussion of grievances
among the employees was an unwarranted and illegal restraint upon activities pro-
tected by the Act, especially where, as here, no necessity or special circumstances
were present to justify such an unlimited "gag rule."
During the hearing the Union's attorney cross-examined Jordan about Jordan's
making a list of the people who attended the hearing. But when Jordan offered to
explain why he had done so, the Union's attorney declined the offer. The matter is
referred to in the Union's brief. I conclude, however, that this conduct, which was
not alleged in the complaint, was not related to the matters alleged in the complaint.
Indeed it may be said to constitute a new and separate cause of action. Nor was
the subject fully litigated at the hearing. I therefore will not decide whether such
conduct violated the Act40
The Union's brief, referring to the no-organizing rule posted by the Respondent on
September 20, maintains that this rule violated the Act " since it only prohibits pro-
union activities by employees." At the hearing, however, the General Counsel spe-
cifically disavowed any contention that the rule was illegal. In view of the General
Counsel's stated position on the matter, I conclude that the legality of the no-
organizing rule was not fully litigated and consequently is not properly before me
for determination 41
9. Conclusions
It is found that the Respondent, since mid-August, has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act, thereby violating Section 8(a)(1) of the Act. This conclusion is based upon
the following conduct:
a. Snipes' interrogation of McKinney on September 14 regarding the Union's
strength.
b. Jordan's questioning of from 15 to 25 employees late in September with ref-
erence to their willingness to attend a meeting at which the Union would be discussed.
c. McCurley's interrogation of Burden in October regarding what she thought
about the Union.
d. Cromer's statement to Bryant on September 24 threatening reprisal if Bryant
did not turn in his union button.
e. Calhoun's order to Bryant on September 26 that he inform other employees
that he had turned in his union button.
f. Massey's statement to Evans on September 26 indicating that he might be con-
sidered for promotion if he would turn in his union button.
g. Jordan's suggestion to Ivester in September that Ivester help organize an anti-
union movement and his furnishing Ivester with a list of employees expected to
support such a movement.
h. The Respondent's disparate application and enforcement of its no-organizing
rule posted September 20.
i. Calhoun's oral warning to assembled employees on September 28 that the
Union could do them some harm.
j. The posting on September 20 of a notice threatening " serious harm" to em-
ployees if the Union came in.
k. Wood's order to Allen in mid-August not to discuss his grievances with other
employees.
90 N.L.R.B v. H E Fletcher Company, 289 F 2d 594 (C.A 1) ; and Porter-DeWitte Con-
struction Co, Inc, 134 NLRB 963.
"Lowell Sun Publishing Company , 136 NLRB 206 , footnote 2.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the above , it is also found that since at least September 14 the Respond-
ent has been vigorously opposed to the Union's organizing efforts in its plant. This
conclusion is bolstered by Calhoun's testimony that he informed the Respondent's
supervisors that "the Union could hurt us, and we weren 't going to go along with
them."
C. The discharge of Milford Allen
1. Facts
Milford Allen was first employed by the Respondent 's predecessor in 1938.
He quit in 1942 to enter the Army, but returned in 1946 at the end of his military
service. He was a weaver on the second shift , assigned to a set of 29 looms. Allen
performed a substantial amount of overtime work. Snipes, Allen's overseer, con-
sidered him "a good weaver."
Allen was the first employee of the Respondent to contact the Union . This was
at the end of July. Thereafter he visited employees at their homes and obtained
their signatures on union applications . As has already been described , in August,
Wood illegally "gagged" Allen by forbidding him to talk to other employees about
grievances.
On August 22 Williamson (Allen's second hand ) made the following written
report to Snipes:
Subject : Poor quality work.
Milford Allen has been talked to about poor quality work and being
off job. I told him he would have to inspect properly and I did not
expect it to happen again.
About the same time Williamson reprimanded Allen for not inspecting his cloth,
but did not tell Allen he had written a memorandum to Snipes on the subject 4s
This appears to have been the first reprimand Allen had received in his approximately
19 years of employment by the Respondent.
About 3.10 p.m. on September 25, Allen, Walker, and McKinney went to
Snipes' office Walker and McKinney were wearing union buttons. Allen stated
that they had heard rumors that all the union leaders were going to be fired within
a week. Snipes replied that this was untrue, and added that the Union sometimes
started rumors . Allen said: "Mr. Snipes, you know we are active in the Union
don't you?" to which Snipes responded . "Yes." McKinney asked if their work
was satisfactory , and Snipes answered : "Yes, so far ." Snipes then added: "I have
said too much already ." Allen warned Snipes that, if they were fired, they would
"take it to the National Labor Relations Board." 43
At 10:15 that night, Williamson came to Allen and told him that he (Allen) had
been off his job four or five times, and some of his looms had stopped . He directed
Allen to go home and see Snipes the next day . Allen stated : "Robert , you know
why you are firing me, it is because of union activity ." Williamson replied: "Nick,
I can 't help it, I have got orders to let you go. I am only carrying out orders." 44
Allen then left . At Williamson 's direction , Porterfield shut off Allen 's looms and
William Thomas ( Pete ) Wells, a loom fixer on the second shift , read the pick clocks
on Allen 's set of looms 45 That night or early the next morning Williamson made
a written report to Snipes which read:
I had to send Milford Allen home about 10:15 p.m. for staying off his job
too much . He was off his job about 5 times from 6:15 to 10:15.
When I sent him home he had 10 looms stopped . I pointed this fact out
to him and told him we couldn 't put up with having the help off the job with
looms not running . So I told [him] to go home and come see you tomorrow.
49 This finding of fact is based upon Williamson ' s testimony . Allen denied that
Williamson reprimanded him. Although Allen Impressed me, generally speaking , as a more
reliable witness than Williamson , in regard to this particular conflict I credit Williamson,
because it seems to me highly unlikely that Williamson would have made such a written
report to Snipes without saying something to Allen about the matter.
43 The findings of fact regarding this incident are based upon a synthesis of the testi-
mony of Snipes , Allen, Walker, and McKinney
44 These findings of fact are based upon a synthesis of the testimony of Allen and
Williamson Where there has been conflict I have credited Allen
45 Every loom is equipped with a pick clock which measures that loom 's production.
Each weaver turns on the pick clocks of his looms at the start of each shift, so that there
is a separate record for each loom and for each shift . Pick clocks at the Respondent's
mill are normally read at the end of each week by someone other than Wells
WELLINGTON MILL DIVISION WEST POINT MFG. CO. 835
On the morning of September 26 Allen returned to the plant and saw Snipes.
Snipes told Allen that Williamson had reported that Allen had been off his job four
times, and he (Snipes ) was going to have to let Allen go. Allen replied that he had
been following the same routine for 15 years, but had not been reprimanded "until
the Union got to organizing ," and he knew he had been discharged because of his
union activities . Snipes responded that Allen was not being discharged because of
the Union . Snipes added : "I am sorry you got tangled up in this mess." 46
Snipes made out a separation slip showing that Allen was "discharged for being off
job 5 times between 6 : 15 p.m. and 10 : 15 p.m . Ten looms were stopped on his job
the last time ." On this document Snipes rated Allen's skill "Very Good"; his attend-
ance and safety record "Good"; and his attitude "Poor."
Allen has not returned to the plant since, nor has he been offered reemployment.
He applied to the South Carolina Employment Commission for unemployment
compensation . It was held he was disqualified from receiving benefits for 5 weeks
because he "was discharged for spending too much time away from his job." Allen
originally appealed this 5-week disqualification but later withdrew the appeal because
it caused the suspension of benefit payments.
2. The General Counsel's case
There is no doubt that Allen was quite an active union adherent, and after the visit
of Allen, McKinney, and Walker to Snipes' office on September 25 there can be no
question about Snipes' knowledge of this fact. It has previously been found that
the Respondent was vigorously opposed to the Union's advent. The timing of
Allen's discharge within a few hours after Snipes became aware of Allen's prounion
sympathies is therefore suspect. Other significant factors underscore the discrimina-
tory nature of the discharge. These include Allen's lengthy and satisfactory service;
Wood's illegal attempt to "gag" Allen in August; the abrupt nature of the discharge
in the middle of a shift; the extreme and severe nature of the punishment meted out;
the admission of Williamson at the time of the discharge that he had orders to let
Allen go; and the statement of Snipes to Allen the next day, "I am sorry you got
tangled up in this mess." 47 Nor can Allen's discharge be considered in a vacuum;
it must be viewed in the light of other contemporaneous conduct. Thus of the four
other known union supporters two (Evans and McKinney) were discriminatorily
discharged within a few days, as will appear hereafter; the third (Bryant) was coerced
by threats into turning in his union button; and the fourth (Walker) stopped wearing
his union badge on September 28, after hearing Calhoun's warning, described above.
For the foregoing reasons I am convinced, and find, that the General Counsel has
established a prima facie case that the discharge of, and failure to recall, Allen
violated Section 8(a)(1) and (3) of the Act.
3. The Respondent 's defense
The Respondent admits that Allen was discharged and not recalled , but maintains
that this was done because he was away from his looms too much. In this connection,
the Respondent points out that Allen had been reprimanded by Williamson in August.
But only a few hours before his discharge Allen had been unequivocally assured by
Snipes that his work had been satisfactory "so far." From this remark it is clear
that the August reprimand was unimportant to Snipes and that he regarded it as
of no real significance. Indeed, Allen could justifiably assume, in the light of this
assurance, that the quality and quantity of his work was not a matter about which
any supervisor entertained serious concern. It follows, and I find, that if the Respond-
ent found any substantial fault with Allen's work performance it must have stemmed
entirely from his last day of work. Let us therefore examine what happened that
evening.
There were no set "break" or lunch periods in the Respondent's weaveroom.
Employees were permitted to leave their places of work without permission at reason-
able intervals to go to the washroom, eat supper, get a drink of water, or take a smoke.
It is apparently the Respondent's contention that Allen abused this privilege on the
night of September 25. Allen testified that on that night he followed his usual
routine ("I just performed my job like I have always done it, for the past 15 years").
O The findings of fact regarding this conversation are based upon a synthesis of the
testimony of Allen and Snipes. Where there has been conflict I have credited Allen.
In the context in which they were uttered, I am convinced and find that the words
"this mess" referred to the Union.
708-006-64-vol 141-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He further testified that between 3 p.m. when he came to work and 10:15 p in. when
he was sent home he went to the cafe twice: about 4:30 p.m. for supper, which took
about 15 minutes, and again about 8 p.m. for a coke or a cup of coffee, which took
about 10 minutes. Allen does not smoke and therefore took no smoke breaks.
Williamson testified that Allen went to supper around 4:30 p.m. and was away from
his looms five additional times between 6:15 and 10:15 p.m. He testified that the
last time Allen was absent he (Williamson) waited approximately 15 minutes at
Allen's looms before Allen showed up. Lucy Adams, a weaver on the second shift,
testified that she saw Allen go to the weaveroom office about 6:30 p.m. and remain
there alone looking at documents for about 10 minutes 43 She admitted, however,
that it was not an unusual event for Allen to be in the office, and that she did not
report the incident for several months afterward 49 I am of the opinion that both
Allen and Williamson exaggerated, and that the truth lies somewhere between Allen's
estimate that he was only absent twice and Williamson's that Allen was absent six
times. It is accordingly found that on September 25 Allen was away from his looms
approximately four times during the 71/4 hours between 3 and 10:15 p.m.
The looms shut off automatically in case of mechanical breakdown, and whenever
the warp or the filling breaks. These stoppages are not caused by any fault on the
weaver's part; however, it is the weaver's function to get the stopped looms back
in operation promptly if he can. When the stoppage is due to mechanical failure,
all that the weaver is able to do is to "flag" the loom fixer, who then takes over. But
if the cause is the breaking of the warp, the weaver can retie the warp and get
the loom functioning once more; and the same is true if the filling breaks. Normally,
a weaver with a set of 29 looms would have a total of somewhat less than 60 stoppages
per hour from all causes. The Respondent introduced evidence showing that, at the
time Allen was sent home at 10:15 p.m. on September 25, approximately 10 of his
looms were "down." 50 This would indicate that at that time he was at least 10
minutes behind on his work-although it is possible that 10 stoppages could have
occurred in a much shorter or longer period of time.
To what extent did Allen's 4 absences from his work and his having 10 looms
down actually affect production? On this subject, the Respondent produced Artruala
McGuffin, battery filler on the second shift. Among her duties was to fill the
batteries 51 on a substantial number (but not all) of Allen's looms. She testified that
on September 25 the batteries on some of Allen's looms had not emptied as rapidly
as they normally would, indicating that the looms had been "down" more than usual.
But she admitted that she had not reported this fact to the Respondent until called
into the office less than a month before the hearing. Any effect on production would
have been more accurately measured by the readings of the pick clocks of Allen's
looms, which Williamson had ordered taken immediately upon sending Allen home.
Yet these readings , presumably in the Respondent's possession , were never introduced
at the hearing-and the failure to produce them was not explained by the Respond-
ent. As the United States Supreme Court has said:
The production of weak evidence when strong is available can lead only to
the conclusion that the strong could have been adverse [cases cited]. Silence
then becomes evidence of the most convincing character.52
I therefore find that, while Allen's work performance on September 25 may not
have been entirely above reproach, his faults that night (if any) were relatively
minor and had no substantial adverse effect on his production. They were definitely
not of a nature which would have caused the Respondent abruptly to discharge a
satisfactory employee of 19 years' standing. This is especially true where, as
here, the record does not show that the Respondent had ever discharged any other
employee for being away from his place of work 53
48 The office had glass sides and Adams could see inside from her looms.
49 Melvin Vaughn, another weaver on the second shift , testified that about 6 p.m. Allen
spent about 10 minutes in the weavers' alley talking to two other employees , blocking
Vaughn's direct access to some looms . Vaughn did not impress me as a candid witness ;
I do not consider his uncorroborated testimony worthy of belief.
co One had stopped because of mechanical failure and no "flag" was up ; the others were
"down" because of breaks in the warp or filling.
e4 A battery is a round , wheel-like container holding 25 bobbins of filling. When the
loom is running at normal speed , a full bobbin empties in about 9 minutes.
52 Interstate Circuit, Inc ., et al v . U.S., 306 U.S . 208, 226.
as The Respondent 's brief states that Jaro Shannon, a loom fixer , was dismissed for
this reason , but the record shows that the reason was Shannon's insubordination.
WELLINGTON MILL DIVISION WEST POINT MFG. CO. 837
The Respondent makes one other point. Williamson denied any knowledge that
Allen was an active union adherent. But even if this denial is taken at face value,
it cannot aid the Respondent's defense. For Williamson did not independently
make the decision to discharge Allen Indeed, it is clear from his remarks to Allen
at the time of Allen's discharge that Williamson was only following orders. As
the determination was made, not by Williamson, but by his superiors, Williamson's
lack of knowledge of Allen's union activities is immaterial . Snipes, of course, had
known of Allen's prounion sympathies at least since 3:10 p.m., September 25.
I conclude that the Respondent's asserted reason for discharging Allen is uncon-
vincing, and a mere pretext to disguise the real reason.54 It follows, and I find, that
the Respondent has failed to overcome the General Counsel's prima facie case regard-
ing Allen's discharge.
D. The separation of Luther Jackson Evans
1. Facts
Luther Jackson Evans was first employed by the Respondent's predecessor from
June 1956 to June 1957. During this period he operated a folder, a stitcher, a
hemmer, and a shearing machine. He quit in June 1957 to enter the Air Force. In
January 1961 Evans was discharged from the Air Force and was offered a job in
the Respondent's cloth room, which he declined. He was rehired on August 29 55
and assigned to operating a folder in the cloth room on the second shift.
A few days after being reemployed by the Respondent, Evans signed an applica-
tion for membership in the Union. On or about September 21 he began to wear
a union button openly to work. This fact was reported to Calhoun. No other em-
ployee in the cloth room on the second shift wore a union button. As has been
described above, on September 26 Massey unsuccessfully attempted, by offer of
benefit, to persuade Evans to turn in his union badge.
On the next day, September 27, when Evans reported for work, he was summoned
to the office where McCurley, in Massey's presence, told him: "Jack, we have no
more work available for you." Evans asked to have his time written out, which was
done.56 He then left the plant and received his pay the next day. He has never
been recalled, nor has he returned to the plant to inquire about employment.
The Respondent's records indicate that Evans was carried on a "laid off" status until
at least the end of that week, that is, through September 30. His separation notice
shows, as the reason for separation, "Lack of work" and this is further explained
as follows: "Layed of [sic] no work available." McCurley, who signed the separation
notice, rated Evans as "Good" in attendance, attitude, and safety record; no rating
was given for skill. Evans' employment history shows "N.W.A." (no work available)
entered as of September 26.
On the day of Evans' separation, September 27, his place on the folder was taken
by Thomas Dutton, who was transferred from the spinning room to the cloth room
that day. Dutton had had no previous experience on the folder. Someone from
the first shift worked overtime training and assisting Dutton in the operation of the
folder for 2 weeks after Evans' separation.
It is the policy of the Respondent to recall employees on laid-off status when there
is work available, at least for 90 days after layoff. Between September 27 and Decem-
ber 15 ( thus within 90 days after Evans' separation ) there were two openings in the
weaveroom for cloth doffers. Although this was work which Evans was capable of
doing, these two jobs were given to newly hired workers.
2. The General Counsel's case
The picture presented is that of an antiunion employer who reacted promptly
and vigorously to the employees' wearing union buttons to work. On September 24
Cromer illegally threatened Bryant with reprisal unless he surrendered his union
badge; Bryant capitulated on September 26. Meanwhile, on September 25, the
Respondent discriminatorily discharged Allen because he supported the Union. And
on September 26 Massey dangled a possible promotion before Evans, seeking thereby
to dissuade him from his union adherence . But Evans remained steadfast. As he
64 In so concluding I have considered the fact that Allen was disqualified from 5 weeks'
unemployment benefits but I deem this of little probative weight
5'Evans testified that he was rehired on August 22, but the Respondent 's records
indicate that he was mistaken in this respect.
° The findings of fact regarding this conversation are based upon Evans ' credited
testimony , corroborated in large part by that of Massey and McCurley.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the only employee in the cloth room on his shift who wore a union badge, his
refusal to surrender his union button made him a marked man. He was separated
at the start of the very next shift, and never recalled.
What happened after his separation is also revealing : McKinney was discrimi-
natorily discharged on September 28. On the same day Calhoun warned assembled
employees that the Union could do them harm ; Walker , who was present, thereupon
stopped wearing his union button . Thus after September 28 union badges entirely
disappeared from the plant . Meanwhile Jordan suggested that Ivester start an anti-
union movement , and helped him to do so; various employees were illegally inter-
rogated about the Union ; and a notice was posted containing an implied threat
of reprisal if the Union came in. The pieces of the jigsaw puzzle seem to fit; the
General Counsel has, in my opinion, established a prima facie case that Evans was
discriminated against, in violation of Section 8(a) (1) and (3) of the Act, because he
refused to turn in his union badge , and as part of the Respondent 's sustained cam-
paign to stamp out union buttons and the Union itself.
3. The Respondent 's defense
The Respondent urges that, after Evans' reemployment on August 29, he became
a probationary employee for 90 days, in accordance with company policy. The
General Counsel, on the contrary, argues that the Respondent maintained no policy
regarding any period of probation. I deem it unnecessary to resolve this conflict.
There is no contention that Evans' work was unsatisfactory. Moreover, if he was
discriminated against , the fact that he was a probationer is no defense; rights under
the Act are not dependent upon the permanent vis-a-vis the probationary nature of
the employment. It follows, and I find, that whether Evans was a probationer
is immaterial to the issues herein.
The Respondent contends that Evans was temporarily laid off on September 27
because there was no work available for him, but that Evans then voluntarily quit
rather than accept the temporary layoff. The Respondent further explains that, under
its layoff policy, Evans as the most recently hired employee was the first to be laid off.
The facts, as presented by the Respondent's witnesses, are somewhat obscure.
Calhoun testified that there was "some" discussion of job reductions at overseers'
meetings. He further testified that he had nothing to do with the determination
that any layoff was necessary, and did not know who made this decision. McCurley
testified that at an overseers' meeting on or about September 25 it was announced
that there would be a curtailment of work, necessitating the layoff of two or three
employees, but no specific departments were mentioned. He further testified that the
next day Jordan informed him that Evans was the last man hired and was to be let go
because of no work available, and that Dutton would be transferred to the cloth
room as a replacement for Evans. Massey testified that a few minutes before
Evans' layoff McCurley stated: "We're going to have to lay [Evans] off because they're
going to transfer us another man." Snipes recalled an overseers' meeting at which
it was stated that the spinning room was going to have to lay off a man "due to
a job running out " Jordan did not attend the overseers' meeting of September 25.
He testified that C. W. Thrasher, overseer of spinning, told him that Dutton's work
in the spinning room had been completed and that he (Thrasher) "was to lay Tom
Dutton off"; and that he (Jordan) replied that Thrasher should wait and let him
(Jordan ) check the personnel files to see if anyone had been there less time than
Dutton. Jordan further testified that examination of the personnel files disclosed
that Evans had been employed less time and therefore Dutton "was eligible to
replace him"; and that he then notified Thrasher to transfer Dutton to the cloth
room and notified McCurley to let Evans go.
I am convinced, and find, that the Respondent was not overstaffed and did not
decide on a general reduction in force at this time. I base this upon the fact that
Evans was the only employee laid off, and the failure to show any overstaffing or
economic necessity for a general layoff.57 Indeed, it is clear, as hereafter will appear,
that at least one employee in the cloth room was then working overtime-thus indicat-
ing the need for a larger rather than a smaller cloth room complement. It is, how-
ever, quite possible, as the Respondent contends, that Dutton's work in the spinning
room had ended and that it was necessary to find him work elsewhere in the plant.
And it may well be that the decision to transfer him to the cloth room was made
in good faith , especially since, as noted above, the cloth room was temporarily short
64 Some departments were then on a 4-day week. Assuming, without deciding, that the
Respondent had reduced its workweek from 5 to 4 days to avoid a mass layoff, this does
not indicate that overstaffing existed after the reduction of the workweek.
WELLINGTON MILL DIVISION WEST POINT MFG. CO. 839
of help at that time. But it does not necessarily follow that Evans had to be laid
off to make way for Dutton. Jake Morgan, who normally operated the stitcher
in the cloth room on the second shift, was then in the hospital; the stitcher's job
on the second shift was "kept up" by employees from the first shift working overtime.
Evans had had experience running a stitcher and could have been used to replace
Morgan temporarily. Also, as more fully discussed below, Evans was not recalled
when work for him became available; instead, new employees were hired. Finally
the Respondent's answer admits that it "terminated" Evans on or about September 27.
The word "terminated" connotes finality, that is, the permanent severance of the
employer-employee relationship, it is inconsistent with the concept of a temporary
layoff. For the foregoing reasons I conclude, contrary to the Respondent's conten-
tion, that Evans was not temporarily laid off on September 27. Instead I am con-
vinced, and find, that the Respondent at the time of Evans' separation never intended
to rehire him, and that therefore the separation constituted a permanent discharge
However, even if Evans had been temporarily laid off, contrary to the above, there
is ample proof of the Respondent's discrimination against him in its failure to recall
him when work became available which he was qualified to perform. On this point
Jordan testified:
Q. (By the TRIAL EXAMINER.) Why didn't the company offer Luther Evans
those jobs in the weave room that you just described, the doffing of cloth?
A. Well, I knew that he was working at some other place.
Q. Is that the only reason?
A. Well, I didn't think he would accept the cloth doffing job and that he was
located on a better job than he had.
Jordan's demeanor while testifying to the above convinces me, and I find, that the
reasons so stated were fabricated excuses to disguise the fact that the Respondent never
had any intention of reinstating Evans under any circumstances so long as he
persisted in wearing a union button in the plant.
Finally, the Respondent contends that Evans voluntarily quit rather than accept the
temporary layoff.58 This is apparently based upon two facts. McCurley testified that
a temporarily laid-off employee customarily waits until the next payday for his pay,
while an employee who quits does not; and that from the fact that Evans asked to have
his time written out he understood that Evans was quitting. Jordan explained that,
although Evans was carried in a "laid off" status for the balance of that week, this
had been entered on the records by someone else before he found out that Evans
had been paid in full on September 28, and that after talking to McCurley he "con-
sidered him [Evans] through." I consider the testimony of both McCurley and
Jordan on this subject a transparent sham There was no reasonable basis upon
which they could have acquired the notion that Evans chose to terminate his con-
nection with the Respondent.59 The second fact relied upon by the Respondent is that
Evans promptly after his separation accepted employment elsewhere. This, however,
does not indicate a voluntary quit. Evans was given no inkling of how long the
"temporary layoff" might last and could not be expected to sit idly by waiting for
recall. To penalize him for his industry would be not only illogical but also unfair.6o
In any event, the Respondent's use of the word "terminated" in its answer bespeaks
a compulsory rather than a willing separation. In this posture of the case, the plead-
ings contain no indication that the Respondent intended to defend on the ground
that Evans voluntarily quit. Such a defense was obviously an afterthought
For the foregoing reasons, I conclude that the Respondent has failed to overcome
the General Counsel's prima facie case that Evans was discriminatorily discharged in
violation of the Act.
E The discharge of H. C. McKinney, Jr.61
1. Facts
H. C. McKinney, Jr., was first employed by the Respondent's predecessor in 1945.
Except for a period in 1946 and 1947 when he was in the Armed Forces, he remained
in the Respondent's employ until discharged on September 28, 1961. For about
14 years he had been a weaver, but in approximately August 1961, at his own re-
se Had Evans in fact quit rather than take a layoff which was discriminatory, this might
well have been constituted an illegal constructive discharge.
w Northern Virgimaa Steel Corp v. N L.R B , 300 F 2d 168 (CA 4)
w Indeed, had Evans turned down the offer of other work, he stood in danger of having
his backpay abated on the ground of willful refusal of employment
61 Referred to in the complaint as H. C McKinney
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quest, he became a smash hand 62 in the weaveroom on the second shift. His sec-
ond hand, Williamson, considered him a good worker.
Early in August, McKinney joined Allen in contacting a representative of the
Union. Thereafter McKinney visited employees at their homes and solicited their
signatures on applications for union membership. McKinney and Allen between
them obtained 53 such signatures in a week. McKinney wore a union button openly
in the plant and this was reported to Calhoun and Snipes.
As has been described above, on September 14 McKinney was illegally interrogated
by Snipes regarding the Union's strength. During this conversation Snipes told Mc-
Kinney that he would "hate to see him involved." 63 As also discussed previously,
on September 25 McKinney, Allen, and Walker told Snipes that they were active
in the Union and were assured by Snipes that their work had been satisfactory "so
far."
About 6 p.m. on September 28 McKinney borrowed a copy of "The Henderson
Story" from Joe Shaw, a weaver. During the next 2 hours McKinney showed the
magazine to about 10 employees and asked them to read a particular paragraph.64
About 6:30 p.m. Helen Waddell, an employee, reported to Williamson that he
"better look around . . . something's going on." Williamson then watched the area
for about 15 minutes and noticed McKinney showing the magazine to three separate
employees at their respective places of work. Between 7 and 8 p.m. Wells complained
to Williamson that McKinney had stopped him and had argued with him "about the
books." 65 At 8 p.m. Williamson approached McKinney and stated that it had been
reported to him that McKinney had "been talking union on the job," and that this
violated the rule posted on the bulletin board. McKinney explained that all he had
done "was to point out a paragraph in the Company's own book, what the Union did
for people on strike." Williamson replied that he was sorry, but he had orders to let
McKinney go, that it was not his (Williamson's) doing ("the orders came from higher
up"), and that McKinney should see Snipes in the morning.66 McKinney left. A few
minutes later Louise Thompson, a weaver on the second shift, told Williamson that
some people thought that she had had something to do with McKinney's discharge.
Williamson answered that he had not intended to create the impression that Thomp-
son was involved. He added that he had his orders, and it was McKinney's job
or his.67
Williamson then wrote the following report:
Date: 9-28-61
To: Mr. Snipes
Subject: H. C. McKinney
George Hill and Pet [sic] Wells came to me and said McKinney was hindering
them from running their jobs. Said he was going around with a book trying to
get people [to] read it on the jobs. I went to him and he showed me the book
and said I'm not doing anything except showing what this book says about the
62 The duties of a smash hand are to straighten out tangled warps and to pull out
breaks He usually works on a loom after the loom fixer has fixed it . A smash hand
receives his assignments through a "smash board" on which are posted the numbers
of the looms needing a smash hand ' s attention He is required to work on looms in the
order in which their numbers are posted
63 This finding is based on Snipes ' admission
64 The paragraph in question described a union rally at which money , food , clothing,
and other support was pledged to certain strikers
65 From a synthesis of the testimony of McKinney and Wells, I find that between 6 30
and 7 p in. McKinney handed Wells a copy of the magazine and asked him to read the
paragraph in question and left to resume work that Wells then followed and accosted
McKinney while McKinney was working ; and that a lengthy and heated argument ensued
over the merits of the Union , McKinney supporting the Union and Wells attacking it.
Wells testified that McKinney stated that the plant rules " didn 't mean a thing to him,
that he had years to work here , that they couldn 't fire him " McKinney denied snaking
any such statement . I credit McKinney ' s denial in this respect.
The findings of fact regarding this conversation are based upon McKinney 's csedited
testimony , corroborated in part by that of Williamson.
e7 This finding is based upon Thompson's credited testimony , corroborated in part by
that of Williamson.
Before the preparation by Williamson of the report quoted below , George Hill, an em-
ployee , reported to Williamson that McKinney had stopped him on his ( Hill's) way to
supper. By then McKinney had already been sent home Hill's report therefore could
have had no bearing upon the Respondent ' s motive in discharging McKinney. Standard
Trucking Company, 134 NLRB 371.
WELLINGTON -MILL DIVISION WEST POINT -MFG. CO. 841
union . I told him the notice on the board says you can 't do that on the job. I
told him to go home and see you tomorrow.
McKinney came back to the plant and saw Snipes the next morning . He said
that, although he had been discharged "for talking union on the job," Porterfield had
called him away from his work to question him about the Union, and the magazine
had been distributed by the Respondent . Snipes admitted that the Respondent had
furnished copies of "The Henderson Story" and voluntarily repeated that McKinney's
work had been satisfactory . 68 Snipes made out a separation slip showing that
McKinney was "Discharged for hindering other employees from running their job."
He rated McKinney "Good" on skill, attendance , and safety record.
McKinney has not since returned to the plant, nor has the Respondent offered to
reinstate him. He applied to the South Carolina Employment Commission for un-
employment compensation . The Commission ruled that he was disqualified from
receiving benefits for 5 weeks because he was "discharged for hindering other em-
ployees from running their job." The ruling has been appealed and the appeal is
now pending.
2. The General Counsel's case
McKinney was one of the Union's earliest and strongest supporters . His views on
the subject were announced to management and his fellow employees by the fact
that he openly wore a union badge . Like Evans, McKinney was the only employee
in his department on his shift who wore a union button in the plant , and was there-
fore a marked man. The Respondent strenuously opposed the Union and (through
Snipes ) notified McKinney that it would "hate to see him involved ." Moreover, he
was discharged only a few days after the discriminatory discharges of Allen and
Evans. The offense for which he was discharged so abruptly after about 15 years
of satisfactory service-talking union on the job-was an activity in favor of the
very organization which the Respondent, with much vigor, sought to destroy. In
addition, it is clear from Williamson 's remarks to McKinney and Thompson that
McKinney was discharged on orders of someone higher up . For these reasons I am
convinced , and find, that the General Counsel has made out a prima facie case that
the Respondent discharged McKinney because he supported the Union, in violation
of Section 8(a)(1) and (3) of the Act.
3. The Respondent 's defense
The Respondent maintains that it discharged McKinney because on September 28
he carried on union organizing activities in the plant during working hours, thereby
interfering with his own work or the work of other employees , in violation of the no-
organizing rule posted on September 20, quoted above. The General Counsel con-
tends that what McKinney did that night did not amount to "union organizing ac-
tivities ." I cannot agree. Certainly McKinney 's efforts were directed at seeking
support or sympathy for the Union. Moreover , his discussions-short as they may
well have been in most cases--did in some instances have the effect of temporarily
interfering with the work of other employees.
It does not follow, however, that McKinney 's discharge was caused by the valid
application of the posted rule. In the first place, as described with more detail
in section B above, the Respondent itself distributed antiunion literature on working
time and applied and enforced its no-organizing rule against McKinney in a
disparate and discriminatory manner . 89 In addition to facts already discussed,
the uneven method of enforcement is further illustrated by what happened the day
after McKinney 's discharge : McKinney related to Snipes how Porterfield had called
him away from work in order to discuss the Union , yet Snipes made no attempt to
investigate the incident or to discipline or reprimand Porterfield . Moreover as the
Respondent itself initiated the entire matter by distributing "The Henderson Story"
and urging employees to read it on working time, it had no legitimate right thereafter
to prohibit union adherents from seeking to counter the effects of the magazine's cir-
culation by likewise urging employees to read part of the same publication during
working time.70
It is concluded that what really jarred the Respondent into discharging McKinney
was neither his alleged neglect of his work nor his alleged hampering of the work of
other employees , but simply the fact that he was espousing prounion sentiments and
endeavoring to stir up support for the Union. This he had every right to do under
the circumstances . In short , the purported reason for the discharge was merely
88 This finding is based on McKinney 's undenied testimony.
89 Standard Trucking Company, supra
71 IV T. Grant Company, 136 NLRB 152.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an excuse used to cover up the real reason , which was McKinney 's union activities.
It is accordingly found that the Respondent has failed to overcome the General
Counsel 's prima facie case that McKinney was discriminatorily discharged in viola-
tion of the Act.'li
THE REMEDY
It will be recommended that the Respondent cease and desist from the unfair labor
practices which it has committed. As the violations of the Act found to have taken
place are persuasively related to other unfair labor practices proscribed by the Act,
the danger of their commission in the future is to be anticipated from the Respondent's
past conduct . It will therefore be recommended that the Respondent cease and desist
not only from the unfair labor practices found , but also from in any manner infring-
ing upon the rights of its employees guaranteed in Section 7 of the Act.
Affirmatively, it will be recommended that the Respondent offer to Milford Allen,
Luther Jackson Evans, and H. C. McKinney, Jr., immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to any seniority
or other rights and privileges previously enjoyed. In addition, it is recommended that
the Respondent make these employees whole for any loss of pay they may have
suffered by reason of the discrimination against them by paying to each of them a sum
of money equal to that which he normally would have earned from the date of his
discharge to the date of his reinstatement , less his net earnings during the said
period. The backpay provided for herein shall be computed on a quarterly basis
in the manner established by the Board . It is further recommended that the Re-
spondent make available to the Board , on request , records needed to facilitate the
calculation of the amount of backpay due hereunder, and post appropriate notices.
Upon the basis of the foregoing findings of fact , and upon the entire record in
these cases , I make the following:
CONCLUSIONS OF LAW
1. Wellington Mill Division West Point Manufacturing Company is , and at all
material times has been , an employer within the meaning of Section 2 (2) of the
Act.
2 Textile Workers Union of America , AFL-CIO, is, and at all material times has
been , a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Milford
Allen, Luther Jackson Evans, and H. C. McKinney , Jr., thereby discouraging mem-
bership in the labor organization named above , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 ( a)(3) of the
Act.
4. By the foregoing conduct, and by other conduct interfering with, restraining,
and coercing its employees in the exercise of rights guaranteed them in Section
7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
5. The unfair labor practices described above tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce , and constitute unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in these cases , I recommend that the Respondent , Wellington Mill
Division West Point Manufacturing Company, Anderson, South Carolina, its officers,
agent, successors , and assigns, shall:
1. Cease and desist from-
(a) Discouraging membership in Textile Workers Union of America , AFL-CIO,
or any other labor organization , by discriminating against its employees in regard to
their hire or tenure of employment or any term or condition of employment.
( b) Interrogating its employees with regard to their union membership , sympathy.
or activities , in a manner violative of Section 8 (a) (1) of the Act.
(c) Attempting to persuade its employees , by threats of reprisal or promises of
benefit, to cease wearing or to turn in union badges or emblems.
(d) Requesting any of its employees to tell other employees that he has stopped
wearing or has turned in his union badge.
711 have considered the fact that McKinney was disqualified from receiving 5 weeks'
unemployment benefits, but in my opinion this carries little weight, especially as an appeal
from the ruling Is pending.
WELLINGTON MILL DIVISION WEST POINT MFG. CO. 843
(e) Suggesting that its employees organize to combat any labor organization, or
assisting employees to start such a movement.
(f) Enforcing or applying any rule against organization in a disparate or discrimina-
tory manner.
(g) Threatening its employees with reprisal because of their membership in, sym-
pathy for, or activity on behalf of any labor organization.
(h) Prohibiting its employees from discussing grievances with other employees.
(i) In any other manner interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Offer to Milford Allen, Luther Jackson Evans, and H. C. McKinney, Jr.,
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and privileges enjoyed, and
make them whole for any loss of pay suffered by reason of the discrimination against
them.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to compute
the amount of backpay due hereunder.
(c) Post at its plant in Anderson, South Carolina, copies of the attached notice
marked "Appendix." 72 Copies of said notice, to be furnished by the Regional
Director for the Eleventh Region, shall, after being signed by a representative of
the Respondent, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that these notices are not altered,
defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Consolidated Intermediate Report, what steps the Respondent has taken to
comply herewith.73
It is further recommended that unless the Respondent shall, within 20 days
after the receipt of this Consolidated Intermediate Report, notify the said Regional
Director, in writing, that it will comply with the foregoing Recommended Order,
the Board issue an order requiring the Respondent to take such action.
It is further recommended that the complaint be dismissed, insofar as it alleges
any unfair labor practices not found herein.
"If this Recommended Order Is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner "
If the Board's Order is enforced by a decree of a United States Court of Appeals, the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
shall be substituted for the words "Pursuant to a Decision and Order."
43 If this Recommended Order is adopted by the Board, the words "within 10 days
from the date of this Order" shall be substituted for the words "within 20 days from the
receipt of this Consolidated Intermediate Report."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, you are notified that:
WE WILL NOT discourage membership in Textile Workers Union of America,
AFL-CIO, or any other union, by discriminating against our employees in hire
or tenure of employment or any term or condition of employment.
WE WILL NOT question our employees about their union membership, sym-
pathy, or activities , in a manner violative of Section 8 (a) (1) of the National
Labor Relations Act.
WE WILL NOT by threats of reprisal or promises of benefit , attempt to persuade
our employees to stop wearing or to turn in union badges.
WE WILL NOT ask any employee to tell other employees that he has stopped
wearing or turned in his union badge.
WE WILL NOT suggest that our employees organize to combat any union or
assist employees to start such a movement.
WE WILL NOT enforce or apply any rule against organization in an unequal
or discriminatory manner.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with reprisal because of their member-
ship in, sympathy for, or activity on behalf of any union.
WE WILL NOT prohibit our employees from discussing grievances with other
employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form unions, to join
or assist Textile Workers Union of America, AFL-CIO, or any other union, to
bargain collectively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
WE WILL offer to Milford Allen, Luther Jackson Evans, and H. C. McKinney,
Jr., immediate and full reinstatement to. their former or substantially equivalent
positions, without prejudice to any seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of pay suffered by them
as a result of the discrimination against them.
All our employees are free to become, remain, or refrain from becoming members
of the above-named or any other union.
WELLINGTON MILL DIVISION WEST POINT
MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone
No. Park 4-8356, if they have any question concerning this notice or compliance
with its provisions.
Bechtel Corporation and Thomas H. Tucker. Case No. 3-CA-
1888. March, 27, 1963
DECISION AND ORDER
On December 26, 1962, Trial Examiner William Seagle issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.'
'We find no merit In the Respondent's contention that the Trial Examiner lacked the
required degree of impartiality and objectivity. However, we do not adopt the various
remarks made by the Trial Examiner with respect to Respondent's counsel.
The Respondent excepted to the Trial Examiner's refusal to allow the Respondent to
produce evidence showing an alleged proclivity on the part of the dischargees to engage
in unprotected activity. We find no merit in this contention. In our opinion, the fact
that the dischargees may have engaged In unprotected activity on other occasions does not
excuse the Respondent's conduct, Involved herein, in discharging these employees for
141 NLRB No. 70.