Adams Millis Texturing Plant

National Labor Relations Board - Board Decisions

Mar 28, 1974

209 N.L.R.B. 899 (N.L.R.B. 1974)

ADAMS MILLIS TEXTURING PLANT
Adams Millis Texturing Plant , formerly known as
Tex-Elastic Corporation, Texturizing Plant and
Textile Workers Union of America , AFL-CIO,
CLC and Jo Ann Bryant and Betty L. Hyatt.
Cases 11-CA-4847, 11-CA-4898, 11-CA-5321,
11-CA-5393, and 11-CA-5342
March 28, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 28, 1973, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, the counsel for the General
Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority m this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,I and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety and that the settlement
agreement in Cases 11-CA-4847 and 11-CA-4898
be reinstated.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STAThMLNT OF THE CASE
GEORGE J. Borr, Administrative Law Judge: Upon
charges of unfair labor practices filed by the above-named
Union and individuals,' the General Counsel of the
National Labor Relations Board issued a consolidated
complaint and rotice of hearing on July 31, 1973, in which
he alleged that Respondent had engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the
i The charges in Cases I I -CA-4847 and 1 l-CA-4898 were filed by the
Union on March 9 and April 17, 1972, respectively The charge in Case
I I-CA-5321 was filed by Jo Ann Bryant on May 14 , 1972. Betty L. Hyatt
filed a charge on June 1, 1973, in Case I 1 CA-5342, and Jo Ann Bryant
209 NLRB No. 146
899
National Labor Relations Act, as amended ,' herein called
the Act. The complaint also alleged that Respondent had
violated the terms of a settlement agreement in Cases
I 1-CA-4847 and 1 I-CA-4898 and declared the agreement
vacated and set aside . Respondent filed an answer and a
hearing was held before me at High Point , North Carolina,
on October 2 and 3, 1973.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:2
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Adams Millis Texturing Plant, formerly known as Tex-
Elastic Corporation, Texturizing Plant, herein Respondent
or Employer, is a North Carolina corporation with a plant
at High Point, North Carolina, where it is engaged in the
processing of textured yams. During the 12-month period
prior to the issuance of the consolidated complaint,
Respondent sold and distributed products valued at in
excess of $50,000 to points directly outside the State of
North Carolina.
Respondent is an employer engaged in commerce within
the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Textile Workers Union of America, AFL-CIO, CLC,
herein called the Union, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Settlement Agreement in Cases 11-CA-4847
and 11-CA-4898
The events in these cases have their roots in the Union's
attempt to organize Respondent's employees in early 1972.
On or about October 11, 1972, Respondent and the Union
entered into a settlement agreement in Cases 11-CA-4847
and 11-CA-4898, approved by the Regional Director of
the Board on October 16, 1972, providing that Respondent
would refrain from violating the Act, and also providing
that Mae Beavers, Jo Ann Bryant, and two other
employees not involved in the instant proceeding be made
whole for any loss of pay they may have suffered as a result
of the termination of their employment. The agreement
noted that the employees "do not desire reinstatement." In
the settlement agreement, Respondent also undertook not
to interfere, restrain, or coerce employees, in any like or
related manner, in the exercise of their rights guaranteed in
Section 7 of the Act.
Beavers and Bryant, along with Betty Hyatt, who was
not involved in the earlier case, applied for employment
with Respondent subsequent to the execution of the
settlement agreement and were refused. It is General
Counsel's theory that the settlement agreement has been
violated because the three applicants were denied employ-
filed an additional charge on July 11, 1973.
2 The questions beginning on p 282,1 19, and ending on p 283, 110 of
the transcript, were asked by the General Counsel, not the Adnumstrative
Law Judge
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment because of their prior union activities, and he also
contends that Hyatt was denied employment because she
filed a charge with the Board.
Continuing violations of the Act justify a Regional
Director in vacating a settlement agreement and proceed-
ing with a complaint which covers Respondent's unlawful
conduct before as well as after the settlement. In
determining whether the settlement agreement has been
violated, presettlement conduct may be considered as
background evidence on the question of Respondent's
motive in its postsettlement activities.3
The threshold question, therefore, is whether there is
"evidence of substantial unlawful conduct following the
settlement agreement,"4 but Respondent's total treatment
of Beavers and Bryant both before and after the settlement
agreement, as well as its activities in regard to employees
generally, may be considered for whatever light they may
throw on Respondent's motives in their cases and in
Hyatt's.5
B. The Discharges and Refusals To Rehire
1. Jo Ann Bryant
a. Basic findings
Bryant, a spinning machine operator on the second shift
who had been employed for approximately 2 1/2 years at
the time, was discharged on March 25, 1972, by Overseer
Denva Hall, after she had permitted her machine to run
with yarn of two different weights for from 4 to 6 hours,
resulting in a substantial amount of unusable production.
Bryant was active in the Union's effort to organize
Respondent's employees; she attended all union meetings,
secured employee signatures to authorization cards, passed
out union literature, spoke to at least one supervisor about
the Union, and attended the Board hearing on the Union's
petition for an election.
Respondent knew that Bryant was a union activist, for
her activities just described would alone have brought that
fact to Respondent's attention, but I also credit her
testimony that Supervisor Gurley Pack, who died in
August 1972, knew that she was and tried to discourage her
activities.6 Bryant testified that the night after she signed a
union card, Pack told her he knew what was going on in
regard to union activity and advised her to get out of the
"mess quickly," warning her that the Company was "after"
her.
Pack made antiunion remarks on other occasions and
attempted to turn her away from the Union, Bryant said.
On February 11, 1972, Pack "damned" the Union, and, in
return, Bryant "damned" the Company, which angered
3 Northern California District Council of Hod Carriers and Common
Laborers of America, AFL-CIO, 154 NLRB 1384, affd sub nom N L R B v
Northern California District Council of Hod Carriers and Common Laborers,
289 F 2d 721 (C A 9, 1968), Baltimore Luggage Company, 126 NLRB 1204,
1208
4 W Ralston & Co, Inc, 131 NLRB 912, 917
5 Northern California District Council, supra
6 Pack was hospitalized because of cancer a number of times during his
last year of employment and was given fewer responsibilities when he was at
work However, Pack continued to act as a supervisor, and management did
not indicate in any way to employees that he was not a supervisor or advise
them that his condition was terminal
Pack who stated that employee workloads would be
heavier if the Union organized Respondent. Later that
same night, while Bryant, Beavers , and Hyatt were sitting
in Hyatt's car, Pack entered the car and discussed the
Union and Respondent's reaction to it with the employees.
Bryant said that Pack stated that Supervisor Elkins had
told him that he was going to issue warning slips to
employees if they overstayed their break periods by a
minute. Pack was critical of Elkins' proposal, he said, and
told the employees that he had urged Elkins to speak with
employees about the Union instead. Bryant also testified
that Pack advised them that they could talk with Lackey,
Respondent's president, if they had any problems in
connection with the current union activity, but Bryant said
she replied that she intended to remain loyal to the Union.
Near the end of February 1972, Pack warned Bryant
about leaving union literature in the restroom. When she
denied it, Pack told her that her name "had come up three
times in the office today" in connection with the problem.
Bryant said she was unable to secure additional informa-
tion from Pack.7
Bryant also said she heard Pack state near the end of
February that the "union is driving everybody crazy" and
that, pointing toward employee Brown, the person who
Bryant said brought the union cards into the plant, he
would "run that son-of-a-bitch off."
When the hearing on the Union's petition for an election
concluded, Bryant telephoned the local newspaper and
gave an account of the hearing. Since she had the rest of
the day off, she passed out union literature to the
employees on the first and second shifts. On March 23, the
day of her discharge, she entered the plant with a copy of
the newspaper containing a story on the Board hearing and
showed it to Hall, her supervisor, who merely laughed.
Later that day, Bryant placed the newspaper near her
machine, but Hall took it from her, advising her that
newspapers were not permitted in the plant.
At 10:30 p.m., Elkins appeared at Bryant's machine and
informed her that she had mixed yam running on her
machine. Elkins left and returned with Hall who took
Bryant to his office and terminated her.
Bryant admitted that all employees were aware that yarn
should not be mixed. She conceded that different deniers
have different color markings and code numbers to enable
one to detect mixed yarn, and she agreed that it was her
responsibility to check the machine and the yarn to prevent
it from happening. She suggested, however, that Elkins
departed from his usual routine that night by coming
directly to her machine as he entered the plant, and she
also implied that someone else could have been responsible
for putting different weights of yarn on her machine. I find
r Lonston Apple, who has been discharged but who was a supervisor for
4 or 5 months in 1972, testified that Bryant's and Beavers' names were
mentioned at supervisor meetings in connection with the distribution of
union literature in the plant . His memory was not good and his testimony is
somewhat unclear , but I find in it evidence that Respondent was aware that
Bryant and Beavers were union activists . Since his testimony also contains
reference to Respondent 's interest in keeping employees working and
preventing gatherings of employees and the distribution of union literature
in work areas , I do not find in it any indication that Respondent was
singling out Bryant or Beavers with the intention of discriminating against
them
ADAMS MILLIS TEXTURING PLANT
no evidence in the record, however, to support the
suggestion that anyone other than Bryant was responsible
for running mixed yam for a number of hours, and I also
credit Elkins' testimony that he routinely checked all
machines that evening, beginning at approximately 10
p.m., and that he had not discussed Bryant with anyone
before he discovered her error.
I also find that running mixed yarn for any length of
time is a serious error and that Bryant's machine operated
with and produced mixed yarn for at least 4 hours. It is
also apparent that it is relatively easy to detect mixed yarn
because of color and code markings, and it appears,
therefore, that Bryant was extremely negligent. These
findings flow in part from her own testimony, but they are
also based on the credited testimony of Respondent's
officials.
Elkins was not Bryant's supervisor in March 1972. He
supervised the third shift, but he came to the plant an hour
before his shift started to check the plant. He testified that
mixed yam is a recurrent problem and that he was looking
for it because some had been discovered in packing
recently. He testified that Bryant's machine had been
running with mixed yarn for from 4 to 6 hours and that an
experienced operator should have detected it immediately s
Tuttle, who was plant superintendent when Bryant was
discharged, testified credibly that Bryant's offense was of a
greater degree than other cases. He explained that mixed
yarn may be put on a machine erroneously and quickly
caught, or it may be found in places where its source
cannot be traced. In these cases, no one is or can be
discharged, but in Bryant's case, where the machine ran for
hours without being observed by the operator, her conduct
was considered "inexcusable." He also said he knew of no
other instance where a machine had been permitted to run
so long with mixed yarn.
Hall, Bryant's supervisor, testified that her machine ran
improperly for from 4 to 6 hours. He said that he had never
experienced such a situation before, and that Bryant
offered no explanation for her neglect or claimed that the
machine had not been running long. He described her
negligence as "gross." He also said he checked and found
that the identification marks on the bobbins were visible.9
Although Yow,, now training manager, testified that
Bryant was the only person he recalled who had been
discharged for mixing yarn, he also said that she was the
only person who had ever permitted mixed yarn to run for
such a length of time.
William Johnston, Respondent's vice president and
general manager, testified credibly that never before had
an employee permitted mixed yarn to run for 4 hours.
Contrary to the testimony of General Counsel's witness-
es, I find, on the basis of the credited testimony of
Respondent's witnesses, that Bryant's serious error was a
dischargeable offense. This is apparent from the testimony
8 I also credit Elkins' testimony that he did not tell Pack that he intended
to change his practice in regard to reprimands because of the union activity,
and that he has, in fact, not changed it.
9 1 also credit Hall's explanation for taking Bryant's newspaper from her
that afternoon on the basis of his uncontradicted testimony that newspapers
are not allowed in Respondent's working areas
10 Bryant's testimony that several other employees had run mixed yarn
and had not been fired was based only on what other employees had told
901
of Respondent's agents set out above, and it also appears
from the testimony of Personnel Manager Smith, who,
having examined Respondent's records, testified that since
February 1972 four employees had been discharged
because of their errors in connection with mixed yarn.10
After Bryant and Beavers were discharged, the Union
filed charges of unfair labor practices on their behalf,
which, as indicated earlier, were settled on October II,
1972, by an agreement by which the alleged discriminatees
waived reinstatement but were paid backpay.
It was stipulated that since November 1972 Respondent
has been advertising for help in the classifications occupied
by Bryant, Beavers, and Hyatt."
Aware of Respondent's advertisements, Bryant filed an
application for employment with Respondent's personnel
office on November 15, 1972, and, not hearing anything in
regard to it, visited Respondent's personnel office on
December 4, where she was interviewed by Personnel
Manager Smith. Smith told Bryant that in reviewing her
application he would consider the circumstances surround-
ing her earlier discharge, and he added that it was
Respondent's policy not to rehire anyone who had been
discharged for cause. According to Bryant, she knew of
three other persons who had been discharged and rehired
by Respondent.
Bryant again visited the plant on June 1, 1973, with
Beavers and Hyatt, and again spoke with Smith, who
repeated that her application would be considered on the
basis of her past record with Respondent. She has not
heard from Respondent since.
Personnel Manager Smith testified credibly that Respon-
dent does not rehire former employees who were dis-
charged for misconduct connected with their work. Based
on this policy, he said that he decided not to recommend
Bryant for rehire after reviewing her record. He also
testified credibly from company records that the three
employees Bryant referred to had not actually been
discharged for misconduct.12
2. Mae Beavers
a. Basic findings
Mrs. Beavers was fired on March 18, 1972, allegedly
for fighting with another employee, which she denied.
There is no question that Beavers laid her hands on an
employee the day before she was fired, but the extent of
her aggression and her motive for it is in dispute . Beavers
testified that the other employee is a female homosexual
who had previously made sexual advances to her and had
also touched her body again just before their altercation.
Beavers said that this latest advance caused her to shake
the employee and warn her to keep her hands to herself,
but she also testified that she also warned the employee
her that they had found on their machines when they started work.
ii Hyatt was an inspector , but the credible evidence shows that
Respondent now has a policy of promoting from within to the inspector
classification Hyatt, however, was also a qualified creeler
i2 Vice President Johnston also testified that Respondent 's policy is not
to rehire those discharged for cause , but an employee's prior record of poor
attendance is viewed more leniently
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about making reports to management about Beavers'
union activities. I find as follows:
Beavers was also active on behalf of the Union and
Respondent knew It.13 The alleged homosexual asked
Beavers to visit a gay bar with her in October 1971, and
according to Beavers' uncontradicted testimony, touched,
or attempted to touch, her person on at least two other
occasions. Beavers' reaction to these invitations seem to
have been polite turndowns.14
According to the credited testimony of employee Page,
on March 17, 1972, Beavers, Bryant, Underwood, Row-
lands, and others were in the restroom and Beavers was
telling the others about a telephone call that the homosexu-
al employee had allegedly made to Superintendent Tuttle
informing him that Beavers and others were members of
the Union. Page heard some of the employees urge Beavers
to "beat" that person, to go out and "stomp" her-"kick
her ass." Beavers pondered the advice, and then left the
restroom heading for the claimed informant's machine,
with Page following. When Beavers reached the employee's
machine, she said a few words to her, and then she pushed
her up against the machine, took her by the shoulders and
shook her a number of times.15
Page asked the employee whom Beavers had pushed and
shaken what had happened, and she was informed that
Beavers "had jumped her," but she did not fight back for
fear of discharge. The employee did not want to report the
incident, but Page took her to Supervisor Hall's office.
Beavers also reported her run-in with the other employee
to Hall immediately. I do not credit her testimony that the
employee she pushed and shook rubbed her breasts against
hers when she told her she wanted to speak with her, and
that this, in part at least, caused her to shake her; nor do I
credit her testimony that she reported such to Hall. I credit
Hall's version that Beavers entered his office, "kind of
shook up," and told him she had been "shaking and
pushing" the other employee because she had been "telling
lies on her" to Tuttle, and that this was the only
explanation he got from her about the incident. He told the
employee to calm down and return to her work while he
investigated the matter. Hall spoke with Page and the other
employee and learned that Beavers had pulled the
employee from her machine, pushed her up against the
machine, and shook her. Since fighting is against company
rules and the agressor, if discoverable, is always dis-
charged, he decided to and did discharge Beavers on
March 18. He maintained, and I credit his testimony, that
at no time up to and through her discharge did Beavers
claim that the other employee had been making passes at
her nor did he hear her make such reports to any other
supervisor. He also stated that Rowlands and Underwood
had not reported to him any information about the sexual
bent of the employee Beavers had problems with, and he
19 She testified that she had told the plant superintendent that she was
for the Union, and she also said that Hyatt told Supervisor Pack that she,
Beavers, and Hyatt had signed union cards.
14 Employees Rowlands and Underwood testified that the employee with
whom Beavers had an altercation that preceded her discharge asked them
for a date, stating that she was a homosexual Each of them also courteously
declined.
15 Employee Hatfield, a fixer , saw the incident He said Beavers
"shoved" the other employee against the machine and shook her more than
added that they could not have seen the incident from their
work stations.is
I find that Beavers angrily pulled, shoved, and shook the
other employee because she had been encouraged to do so
by other union adherents after she informed them-or they
informed her-that the other employee was informing on
them , and I also find that the homosexual issue has been
injected into the case to confuse or cover Beavers' real
actions and motivations.17
I credit the testimony of Respondent 's witnesses that
"fighting" or "scuffling," or even "horse play," in the plant
is dangerous and grounds for discharge, and that persons
have been discharged for those offenses in the past.18
After her case was settled by the payment of backpay,
without reinstatement, Beavers applied for work on
November 15, 1972, and June 1, 1973. She was not
reemployed on either occasion, and on June 1, 1973,
Personnel Manager Smith told her that her prior discharge
would be considered in deciding whether to rehire her.
Since persons who have been discharged for misconduct
are not subject to being hired again, Smith said that he did
not recommend Beavers for reemployment.
3. Betty Hyatt
a. Basic findings
Hyatt went on sick leave in February 1972 and, on July
10, while on leave, she notified the Respondent that she
was quitting her job. While employed, Hyatt joined the
Union and talked to other employees on behalf of the
Union. In September and October 1972, after she quit, she
distributed union literature at the plant gate.
Hyatt testified that on February 11, 1972, Supervisor
Pack asked her whether Jo Ann Bryant brought the union
cards into the plant. When Hyatt denied that she had, Pack
questioned her further about other employees, and he
asked her to assist him discover the source of the union
activity, promising her a first-shift job if she cooperated.
Hyatt said she refused Pack's request, and that on the next
night he asked her if she had seen any more union cards
and told her that he knew that employee Underwood had
given Bryant and Hyatt their union cards.
On March 12, 1972, Hyatt participated in the conversa-
tion with Pack in Hyatt's car which Bryant had testified
about. She recalled him saying that Respondent's president
had asked him to work the second shift that night to see
what he could find out about the union activity and to try
to talk the employees out of it.
Hyatt testified that while she was on sick leave, Pack
telephoned her and warned her to "keep her nose clean" if
she returned to work, reminding her of what had happened
to Bryant and Beavers , and warning her that the same
thing would happen to her if she did not forget the Union.
once . He said there was a "fight" going on, but he did not know who started
it
16 Underwood and Rowlands testified that they saw the other employee
move "breast to breast" to Beavers before Beavers "shook," but did not
"shove" her. I do not credit them
17 Beavers' credibility was badly damaged in her cross-examination in
regard to what she told Hall immediately after the incident and what she
said in her affidavits given the Board in the investigation of her case
18 Credited testimony of Hall, Smith, and Johnston
ADAMS MILLIS TEXTURING PLANT
Hyatt said that Pack reiterated that she would be fired if
she did not forget the Union, and he commented that he
had heard her name mentioned in the office in connection
with the names of Bryant and Beavers and the Union.19
On June 1, 1973, almost a year after she quit her job,
Hyatt went to Respondent's personnel office with Bryant
and Beavers and filed an application for employment,
having heard, she said, that Respondent was looking for
experienced employees. She spoke with Smith who told her
that if she were hired she might not be hired as an
inspector-her last position-because Respondent was
promoting employees from within to that classification. It
also appears from the credited testimony of Smith that he
would check her record before deciding whether to hire
her, but he told her not to telephone him because the
Company had her number and would call her if she were to
be hired. Smith explained credibly that this is standard
operating procedure. Respondent did not telephone Hyatt
or hire her.
On the same day that she applied for work, Hyatt filed
unfair labor practice charges against Respondent based on
Respondent's failure to employ her.
Personnel Manager Smith testified that he did not know
that Hyatt was involved with the Union until he received a
copy of the charge she had filed with the Board. He said
that he checked her record anyway and found that her
attendance record was poor. In her 2 years and 3 months
of employment, she had had 200 days of sick leave and
excused absences. He also reviewed the rating given her by
her foreman when she quit and concluded that it indicated
that the applicant was "undesirable." He decided, he said,
not to recommend her for employment.20
I find that Smith did check Hyatt's employment record
and that the amount of absenteeism discovered would have
justified a decision not to rehire Hyatt. Whether that was
the real reason she was not reemployed or was merely a
pretext, which is the same question involved in Bryant's
and Beavers' cases, will be treated next.
C. Analysis, Additional Findings, and Conclusions
Although Bryant and Beavers were known union
activists and were discharged at the height of the Union's
campaign after a number of years of satisfactory service,
their cases are extremely weak without the testimony given
by them and their friends about what a dead person told
them. This is so because there is very little evidence in the
case of union animus or unusual interest by Respondent in
their union activities other than the remarks attributed to
Pack, and because it has been found that, just prior to their
19 Employee Underwood testified that on March 28. 1972, she told Pack
that Bryant had been fired According to her, Pack acknowledged the fact,
and she then commented that Respondent had fired Bryant and Beavers
because of their union activities. Underwood said that Pack "shook his
head," and replied, "Yeah, I know," and walked away. Pack is dead and, of
course, anything is conceivable, but because he is dead, I have scrutinized
the testimony very carefully , as I must, and I find it unbelievable.
20 The rating, which is in evidence, shows that Hyatt was rated "poor"
on attendance and attitude.
21 Vice President Johnston'% speech to employees, by and large, was
protected by Sec. 8(c) of the Act, and the employees were not sure about
what he said about solicitation for the Union and passing out literature. It is
clear that he also talked about interfering with the work of others or
903
terminations, they had engaged in conduct warranting
discharge.21 Hyatt's case, without Pack's admissions and
warnings, is even weaker because she was not as active as
the others, she was on sick leave during most of the period
in which the union activity occurred, and she quit her
employment almost a year before she reapplied for a job.
Timing does not exist in her case , and, as in the cases of the
others, her work record (absenteeism) was a legitimate
ground on which to refuse to hire her.
I have concluded that even if Pack told Bryant and
Beavers that the Respondent was aware of their union
activities and was "after" them because of it, and also told
Hyatt to forget the Union if she were rehired or she would
be fired, as Bryant and Beavers were, General Counsel has
not established by a preponderance of the evidence that
their discharges were discriminatorily motivated. Although
Respondent may be held to have violated the Act by
Pack's interrogation, threats, and other conduct, his agency
does not necessarily establish that he was accurately
reflecting Respondent's motive in discharging Bryant and
Beavers. I have noted before that Pack is the only
management representative who it can be said, on this
record, revealed an intention on Respondent's part to
discriminate against employees. Supervisor Hall did not
consult with Pack about discharging Bryant or Beavers,
and he testified credibly that he took the actions he did on
his own. Since their conduct warranted discharge, as I have
found, their union activities did not shield them from it.
Because the record does not establish that they were not
discharged for cause, Respondent could refuse to rehire
them under its policy of not rehiring persons who had been
terminated for misconduct, and I credit Smith's testimony
that he did not recommend them for rehire for that reason.
I also find, for essentially the same reasons, that Pack's
remark to Hyatt that she would be treated like Bryant and
Beavers if she continued to support the Union does not tip
the case toward a finding that the refusal to rehire her was
discriminatorily motivated. In addition to her poor
attendance record, which was a legitimate ground on
which to reject her application, she did not wait a
reasonable time for Respondent to consider it, but, within
a few hours, she filed a charge with the Board alleging that
she had been discriminated against. I credit Smith's
testimony that he did not refuse to hire her because she
had filed a charge, but that he reviewed her file anyway
and decided not to recommend her for employment
because of her poor attendance record.
Pack, the only company agent whose statements would
make the evidence preponderate in favor of a finding of
discrimination against Bryant, Beavers, and Hyatt, is dead.
neglecting one's on work when he stated that employees would be
discharged for violation of the company rule, which he was announcing for
the first time, and it also appears that employees were not prevented from
leaving union literature in nonworking areas of the plant. If Johnston did
step outside of the line which the Board has established in the case of no-
solicitation, no-distribution rules, which I do not decide , it was a minor
deviation. Similarly, what Supervisor Brown is supposed to have told
employee Woodell about the effects of unionization on her work appears,
from her entire testimony , to have been a prediction of what union rules
would result in. not what the Company would do, but in any case, she made
no secret of where she stood with the Union, and she asked Woodell for his
opinion Woodell also told her she had a right to choose the Union if she
wished
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He and the three were very friendly with each other. I do
not reject all of their testimony about what Pack told them,
and I find that he did talk with them about the Union in an
attempt to discourage them in their activities and to gain
their help in discovering the principal union activist , but, as
I consider and reconsider their testimony and the entire
record, I cannot erase a serious doubt that Pack 's remarks
were not conveniently exaggerated. I have already noted
that I found Underwood 's testimony to he incredible on its
face , and I have the same reaction to Hyatt's. Rarely do we
find in these pretext cases such damaging admissions of
motive , and when the declarant is dead a reasonable
amount of skeptical review is understandable . Although
Pack was close to Bryant and Beavers-they visited him
during his terminal illness-and although he talked freely
with them about their union activities , he never revealed to
them , as he is supposed to have disclosed to Hyatt and
Underwood , that they had been fired for union activity,
not for cause.
Beavers and Bryant overstated their cases in certain
areas. Beaver's weaving and bobbing when she was trying
to recall just what she had told Hall about it, right after her
altercation with her fellow employee, and what she told a
Board agent about her report to Hall has already been
noted , and, in addition , I was not impressed with her
testimony that she heard Pack state-in a plant where the
noise level makes it impossible to hear what another person
is saying unless you are within inches of him-that he was
going to "run off" the most active union adherent because
the "s-o-b" had brought the union cards into the plant.
Bryant's fortunate presence when this statement was
supposedly made I find hard to accept . Bryant misstated
Elkins' role in discovering mixed yam on her machine,
attempting to give the impression , so it seemed, that a trap
had been set for her and that Elkins was about to spring it.
She also exaggerated in regard to the Company's attitude
about mixed yarn and what happens to employees who are
responsible for it, as well as about rehiring after discharge
for cause.
These doubts, questions , and reservations that I cannot
escape in regard to what Pack actually said to the witnesses
for the General Counsel is another consideration influenc-
ing my conclusion that Bryant, Beavers , and Hyatt were
not discriminated against in violation of Section 8(a)(3)
and (1) of the Act.
Having found that Respondent did not engage in any
independent unfair labor practices after the execution of
the settlement agreement , I shall recommend that the
consolidated complaint be dismissed in its entirety and
that the settlement agreement be reinstated.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. Respondent did not violate the settlement agree-
ment.
RECOMMENDED ORDER
It is hereby recommended that the consolidated com-
plaint be dismissed in its entirety and that the Board
reinstate the settlement agreement in Cases I I-CA-4847
and I1-CA-4898.