Aliceville Cotton Mill, Inc.

National Labor Relations Board - Board Decisions

Oct 22, 1971

193 N.L.R.B. 885 (N.L.R.B. 1971)

ALICEVILLE COTTON MILL, INC. 885
Aliceville Cotton Mill, Inc. and United Textile Work-
ers of America , AFL-CIO
Aliceville Cotton Mill , Inc. and James Thomas Harris.
Cases 10-CA-8476, 10-CA-8533, and
10-CA-8553
October 22, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On May 10, 1971, Trial Examiner Melvin J. Welles
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also
found that Respondent did not engage in certain
unfair labor practices alleged in the complaint and
recommended dismissal as to them. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this proceeding, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.2
erroneous finding as to how Cooley acquired the knowledge does not affect
the inferences he draws from Cooley's denial of such knowledge
2 The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products Inc, 91 NLRB 544,
enfd. 188 F 2d 362 (C A 3) We have carefully examined the record and
find insufficient basis for reversing his findings
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Trial Examiner: This case was heard
at Carrollton, Alabama, on December 1, 2, 3, 4, and 15,
1970, based on charges filed July 24 and August 18 and 24,
1970, and a complaint issued October 7, 1970. The
complaint alleges that Respondent violated Section 8(a)(1)
and (3) of the Act. Respondent filed an answer denying that
it violated the Act. Counsel for the General Counsel and for
the Respondent filed briefs.
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Alabama corporation, is engaged in the
manufacture and sale of yarn at its place of business in
Aliceville, Alabama. During the past calendar year it sold
and shipped products valued in excess of $50,000 to
customers located outside the State of Alabama. I find, as
Respondent admits, that it is engaged in commerce within
the meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
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 Trial Examiner and hereby orders that
Respondent, Aliceville Cotton Mill, Inc., Aliceville,
Alabama, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
i The Trial Examiner finds in fn 5 of his Decision that Plant Manager
Cooley, while denying knowledge of the union activities of certain
employees , must have known of the union activities of at least some of
them because he saw them at a union meeting on June 7 It is clear from
the record that Cooley did not observe this meeting Nevertheless, it is
clear that he had the knowledge ascribed to him by the Trial Examiner as
the assistant plant manager , Martin, testified that he reported both his
observation of some of these employees at the meeting and his subsequent
conversations with these employees about the meeting to Cooley on June 8
As Cooley did have knowledge ascribed to him by the Trial Examiner his
The complaint alleges approximately 50 violations of
Section 8(a)(1) by Respondent, ranging from interrogation
(17 instances), threats to close the plant (9 instances),
threats that Respondent would not bargain in good faith (6
instances), miscellaneous threats (6 instances), and promise
of benefits (5 instances), to surveillance , creating the
impression of surveillance , soliciting employees to with-
draw from the Union, to inform Respondent of employees'
union activities, and to persuade others to defect from the
Union.
The complaint also alleges that Respondent violated
Section 8(a)(3) and (I) by discharging employee Zaiontz
(reinstated after 6 days), Bonner, Cochrane, Miller, and
Harris, by issuing warnings to employee Don Noland, and
by laying off Noland for I week.
With respect to the 8(a)(1) allegations, the case turns
largely on the credibility of the witnesses, for the General
Counsel proffered evidence in support of virtually all the
violations , and in most instances the Respondent official
193 NLRB No. 136
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who allegedly did interrogate, threaten, promise benefits to,
etc., the employees concerned, specifically denied having
done so. There are, however, a few instances where the facts
themselves are not in dispute, but the question is whether
those facts establish the violations alleged. Based upon my
credibility findings, which shall be explicated hereinafter,
and my conclusions with respect to those allegations which
do not present factual disputes, I find below that
Respondent has violated Section 8(a)(1) in various
enumerated respects. The absence of a specific credibility
finding does not in all instances indicate that the facts
found are based on uncontradicted testimony. As to some,
a previous resolution of the credibility of the individuals
involved in the incident will, in effect, carry over; as to
others, where a finding of a violation is made, the contrary
testimony, e.g., a denial, has been considered and rejected
based on my evaluation of the credibility of the witnesses,
including the inherent probabilities of the event having
taken place as I find. As to the alleged violations of Section
8(a)(3), although I shall in most instances indicate
credibility resolutions as to material facts, there again will
be some findings where no specific credibility resolutions
appears, but credibility resolutions have nonetheless been
made.
B. Background
The Union began organizing Respondent's employees in
late March 1970.1 Between March 31 and May 16,
approximately 15 separate violations of 8(a)(1) allegedly
occurred. Respondent argues that these allegations must be
dismissed because of a lack of knowledge by the company
officials and supervisors involved of any union activity
occurring prior to May 16. Essentially, of course, the pre-
May 16 allegations are no different from the post-May 16
allegations insofar as they turn on the credibility of the
various witnesses. If, for example, I credit some or all of
General Counsel's witnesses that, before May 16, Superin-
tendent Cooley, or Supervisor John Henry Johnson, or
Supervisor William Moore, interrogated them about their
union activity, or threatened them because of it, or solicited
them to find out about the union sympathies of other
employees, then obviously I would be discrediting the
denials of Cooley, Johnson, and Moore as to the particular
conduct in question, and discrediting also their testimony
(really that of Cooley and Johnson; Moore was not asked
when he first learned of union activity at Aliceville) that
they did not know of such activity prior to May 16. I see no
point, therefore, in treating the pre-May 16 allegations of
8(a)(1) any differently from the remaining 8(a)(1)
allegations.2
C. The Alleged Violations of Section 8(a)(1)
In its very thorough brief to me, Respondent discusses
the 8(a)(1) allegations by the alleged perpetrator rather than
chronologically or by type of violations, and I too will
discuss them that way for convenience sake.
1. President Everett Moore allegedly unlawfully inter-
rogated two employees, Betty Miller and Rosa McCaa, and
requested McCaa to tell other employees that the Company
preferred not to have a union at Aliceville. Miller testified
that on August 7, shortly after President Moore made a
speech about the Union to employees on the third shift, he
had a conversation with her at her machine. Miller told
Moore that she had enjoyed his speech, and he said that it
was all true. After some talk about how Miller's job was
running, Moore said "Have you heard any talk lately?" 3
As noted above, Moore did not testify, and there is no
reason to discredit Miller's testimony. Respondent argues
that the question, in its context, referred to Miller's
complaint about working conditions, rather than the
Union. I believe that Moore was referring to the Union, for
he had just finished talking to the employees about the
Union, the phrasing of the question suggests union, rather
than other employee complaints, as its subject, and, as
related below, he questioned another employee about the
Union the same day.
McCaa testified that on the same day, after the speech to
the third shift, President Moore came by her work station,
talked with her about her production, saying she was the
best winder the Company had, asked her if she understood
about the Union, and that the Company did not want the
Union, and, when she said she did, asked her to go around
and tell everyone "we don't want the Union at Aliceville
Cotton Mill." Moore also asked McCaa whether she was
for or against the Union, to which she said that it did not
matter to her. Respondent argues that the interrogation was
isolated, and that it was during a friendly conversation,
with McCaa being praised, not reprimanded. As to the
request to persuade other employees, Respondent argues
that it is no different from the Company itself lawfully
persuading the other employees to vote against a union. In
view of my finding that Moore interrogated Miller, and in
the light of other unlawful conduct by Respondent found
hereinafter, the questioning of McCaa was hardly
"isolated." The request that she persuaded others is not the
same as direct lawful persuasion by the Company, for
whether by complying or failing to comply with such a
request, the employee is required to "stand up and be
counted," he is either for, or against the Company. I find,
accordingly, that Respondent violated Section 8(a)(1) of the
Act by President Moore's interrogation of employees Miller
and McCaa, and by asking McCaa to influence other
employees against the Union.
2. Plant Manager Cooley allegedly unlawfully interro-
gated a number of employees, threatened that the plant
would close if the Union got in, solicited an employee to
persuade others to defect from the Union, threatened that
the Company would not bargain in good faith, and
threatened to withhold wage increases and a paid holiday
because of the Union's advent. The testimony concerning
these allegations comes from Wilma Peters, James
"Preacher" Cochrane, Earnest Edward Miller, Don No-
land, and Agnes Goodman Zaiontz.
Peters testified that sometime in April Cooley had a
conversation with her at her work station. Cooley said "I
I All dates herein are in 1970 unless otherwise indicated where relevant , will be discussed at the appropriate place
2 With respect to the 8 (a)(3) allegations , knowledge of the union activity 9 On cross -examination, Miller testified that Moore asked "What have
of the particular individual involved stands on a different footing and, you heard lately'?"
ALICEVILLE COTTON MILL, INC. 887
suppose you have heard that the Union is trying to come
in." When Peters replied that she had, Cooley said "You
know what this can mean?" and she responded "Yes, I
suppose they will say they are going to close it down like
they always do." Cooley then told Peters "Why don't you
talk to these people and tell them what this could mean to
them?" Cooley denied this and all other statements and
conversations alleged as violative of Section 8(a)(1). Based
on his demeanor while testifying, on what appeared to me
an attempt to put his testimony in the most favorable light
to Respondent,4 and on what I deemed to be equivocation
in various respects,5 I do not credit his denials as against
Peters, who impressed me favorably as a witness .6 Although
it was Peters' initial inference that Cooley was referring to
plant closing when he said "You know what this can
mean?", Cooley not only failed to disabuse her, but in
effect confirmed her interpretation by asking her to tell
others what the Union's coming in "could mean to them." I
find, accordingly, that Respondent violated Section 8(a)(1)
by Plant Manager Cooley's threat to Peters and solicitation
of Peters to persuade others to reject the Union.
Employee Earnest Edward Miller, whose discharge (or
layoff) June 26 is alleged as violative of Section 8(a)(3),
testified that Cooley, about April 3, and again on April 7,
threatened to close the mill rather than have a union. After
the June 26 "layoff," Miller went back to the mill several
times to see about getting his Job back. On the second such
occasion, early in August, Cooley said that the employees
were supposed to get another paid holiday this year, and
another raise in September, but that "the way it looked now
he wasn't going to get anything " I credit Miller's testimony
in these respects .? However, I do not find the August
statements violative of the Act; they were ambiguous
enough so as not clearly to amount to threats based on the
Union's organizational campaign. I do find that the April
threats by Cooley to shut down the mill violated Section
8(a)(1).
Agnes Goodman Zaiontz testified that in August, shortly
after President Moore spoke to all the winding room
employees on the third shift, Cooley approached her and
asked what Don Noland thought about Moore's speech.
When she grinned, Cooley laughed and said "Now, don't
tell me you don't know because you and Don came out of
the winding room together." Zaiontz then said that Don did
not have very much to say about it. Cooley said that the
Union would not work in a mill such as theirs, and that "if
we got our little union in we could go ahead and draw up a
contract and if we got a contract drawed up and Mr. Moore
saw it, that he would not sign it, that he was a very stubborn
man and our whole point was senseless ." I was favorably
impressed by Zaiontz as a witness, and credit her testimony
4 For example, although at an earlier representation case hearing,
Cooley testified that there was no one on layoff status, he testified at the
hearing in this case that Miller, Cochrane, and Harris were in fact "laid
off " While it is true that the word layoff has a different connotation in a
representation case, so that there would be, and was, nothing amiss in
counsel for Respondent taking a legal position in the representation
proceeding that there was no "layoff," Cooley's own definition of and
usage of the words "layoff" and "discharge" make it apparent that he was
not using either term as a "word of art" but was rather attempting to
further the Company's interest on each occasion
5 Thus, Cooley testified that at the time of the June 26 "layoff" he had
no knowledge that Cochrane, Miller, or Harris had anything to do with the
both in this and other respects. In view of Noland's
preeminent role in the Union's organizational campaign,
and Respondent's knowledge of that role, I believe Cooley
was not seriously seeking information, but was rather being
rhetorical, and I also think that Zaiontz so regarded the
ostensible question. I make no finding of 8(a)(1), therefore,
based on this. I do find that Respondent violated Section
8(a)(1) by Cooley's threat that President Moore would not
sign any contract, even if one were negotiated.
James "Preacher" Cochrane testified that early in April
Supervisor Moore asked him to get a union card for Cooley.
Cochrane got a card, and gave it to Cooley, who asked him
where he had obtained the card. Cochrane also testified
that on June 22, Cooley came up to him and said, "I just got
a call from the man and he said that if it goes union we
close it down. If we close it down, we will take-knock the
end of the wall out and move all of the equipment to
Fayette, Alabama." Respondent argues that Cochrane's
testimony in this latter respect should not be credited
because he placed the colloquy as having occurred at 11:45
a.m., but Cooley went to lunch every day at 11:30 a.m., and
also because the Company had installed new equipment a
few months earlier, and "it is ridiculous to assume that
Cooley would threaten to close the plant when, in fact, they
had Just finished additions."
I do not regard either reason as a basis for discrediting
Cochrane. Cochrane could have been off by 15 minutes in
his time estimate, or perhaps Cooley went to lunch 15
minutes late that day. And threats are not always made
with the intent to carry them out. Furthermore, other
company officials, as noted elsewhere, threatened that the
plant would close, so Cooley's threat in this respect fits the
pattern of activity of Respondent. I find, accordingly, that
Respondent violated Section 8(a)(1) by Cooley's unlawful
interrogation of, and threats to, Cochrane.
Don Noland testified that Cooley approached him in the
spinning room on April 14, and asked him how many cards
had been signed. When Noland replied that he did not
know, Cooley said "Well, you ought to know." Cooley then
asked Noland how many they had at their get-togethers.
About May 8, Cooley approached Noland on the steps of
the mill and asked him who had given him the union cards.
Based on this testimony, which I credit, I find that
Respondent violated Section 8(a)(1) by interrogating Don
Noland.
3. Assistant Manager Wayne Martin is alleged to have
committed numerous violations of Section 8(a)(1) on June
8, July 10, and July 16. Harris testified that on June 8, the
day after a union meeting at a courthouse in Carrollton,
Alabama, about 10 miles from Aliceville, Martin came up
to him in the plant, in the presence of employee Crowell,
Union, despite the obvious fact that he had seen at least some of them on
June 7 at what he, a day later, knew had been a union meeting, and despite
the fact that other company supervisors testified to having discussed with
each other all suspected union activity Cooley was also , in my view,
dissembling in his explanation of what was meant by "fast" with respect to
a report from Supervisor Johnson about employee Zaiontz
6 Peters left the Company in July 1970, having worked only since March
of the same year
7 Although on cross-examination Miller became somewhat confused as
to dates, and as to exactly what was said in a conversation (as to which I
make no finding) alleged as interrogation, I believe he was attempting to
recall events as best he could.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and asked whether he went to the union meeting, and how
many were there. Harris gave an untruthful answer to this
question, replied "No" to Martin's query whether he knew
who was heading up the Union, and that he did not know to
Martin's asking when the next meeting would be. Harris
also told Martin that the Union was a "bunch of bunk,"
that it could not produce what it promised and that he was
not going to have anything to do with it. All of this was
"false information" given to Martin.
Cochrane testified that on the same day, June 8, Martin
approached him on the job and asked him how many
people were at the union meeting. Cochrane said 169 cards
were signed. Martin said that the mill owner (naming
someone) would not sit down at a table with them, and
would close the plant down. Cochrane then said "If he
don't close it down we will until we get what we want."8
Martin had been in Carrollton the day before, and had
seen a number of company employees on the steps of the
courthouse or nearby. According to his own testimony, he
mentioned first to Harris, and subsequently to Cochrane,
having seen each in Carrollton the preceding day. Martin
went on to testify that Harris volunteered the fact that he
had been at a union meeting in Carrollton, that he, Martin,
did not know a union meeting was being held, and that he
did not ask Harris about the Union, or who attended the
meeting, or when the next meeting was to take place. In
Martin's subsequent conversation with Cochrane, accord-
ing to Martin, he again merely mentioned having seen
Cochrane in Carrollton the preceding day, and Cochrane
volunteered that 169 cards had been signed, but Martin
asked on questions. Martin's own version suggests that his
visits were not just passing the time of day with some
employees by mentioning having seen them the day before.
Although Martin said he knew nothing about a union
meeting, strongly implying, as I read his testimony, that his
first knowledge of that was the information volunteered by
Harris, he continued on to Cochrane shortly thereafter, and
opened with the very same ploy, "I saw you in Carrollton
yesterday." Since by then he had to know that it was a
union meeting he had observed, it could hardly be said that
his purpose was still innocently to pass the time of day. I
infer from these facts that Martin did indeed know he was
observing a union meeting, and of course went to both
Harris and Cochrane with that knowledge. I therefore
credit the versions of Harris and Cochrane, and find that,
by Martin's interrogations and threats to Harris and
Cochrane, Respondent violated Section 8(a)(1) of the Act.
Zaiontz testified that Martin approached her on the job
and said "We do not have a Union and we don't want a
Union and we don't need a Union." Martin went on to say
that the Union would cost her money, that they were in
business to make money, which they did from dues, fines,
and assessments, and that he knew who the union
committee was, and they would be discharged. Martin
added that the Company had plans for giving raises,
improving the insurance, and adding more paid holidays.
Martin testified that he did tell Zaiontz that the Company
did not want a Union, etc., and that the Union was only
interested in money, but he denied that he said he knew the
composition of the union committee, or threatened
discharge of anyone, or promised benefits to the employees.
I have already indicated my reason for discrediting Martin
in connection with his conversation with Harris and
Cochrane. Further reason for so concluding is Martin's
testimony that he was not aware of any union activity on
the part of any of the fixers at the time of the June 26 layoff.
Since the fixers included Cochrane, who was seen at the
June 7 meeting by Martin, and who on June 8 had the
above-mentioned conversations with Martin, and in the
light of his testimony on cross-examination to the effect
that there was an exchange among the supervisors in May
and June concerning union activity generally, I cannot
credit Martin's testimony.9 I find, accordingly, that
Respondent violated Section 8(a)(1) of the Act by Martin's
intimating knowledge of the composition of the Union's
committee, promise of increased wages and benefits, and
threats of discharge.
Patsy Lavender testified that Martin told her the
Company was planning to give a raise in September, but
would not do so because of the Union. Although Lavender
was vague and confused as to the date of this incident, I am
convinced that this employee, still working for the
Company, was telling the truth, and find that Respondent,
by Martin's threat in this respect, violated Section 8(a)(1) of
the Act.
4. Supervisor William Moore is alleged to have
interrogated employees, solicited them to inform on the
union activities of other employees, and threatened that the
plant would close down. Wilma Peters and Ruth Clark both
testified to Moore's threat of plant closure. Moore denied
any such conversation with Peters, but did testify to a
conversation with Clark, claiming, however, that Clark
asked whether the mill would be closed and the machinery
sent elsewhere, with Moore saying only "I heard they was
building a mill in Oklahoma." Since Moore's version
conveys an agreement or affirmance that the mill might
shut down, I would find a violation even in that posture.
However, threats to close the plant represented the chief
intimidatory tactic of Respondent, and I therefore credit
Clark (still an employee of the Company) that the threat
was specifically made to her, and credit Peters to the same
effect. I find accordingly that Respondent violated Section
8(a)(1) by Supervisor Moore's threats that the plant would
close.
Clark also testified that Moore questioned her on two
occasions, in May asking if she had heard about a union
organizing the mill, and in June whether she had received a
union card. Cochrane testified that about March 31 Moore
asked him to find out who was pushing the Union, that
about April 6, Moore asked him to get a union card for
Plant Manager Cooley, and 2 days later, Moore asked him
when the next union meeting was going to be held. I credit
Cochrane and Clark in these respects, and find Respondent
violated Section 8(a)(1) by Moore's interrogation.
8 Shortly thereafter Cochrane seems to be saying that Martin did not testimony.
say anything about the plant closing . The context of this latter testimony , 9 On cross-examination, Martin seemed to be explaining his previous
however, as well as the test of Cochrane' s remark , satisfy me that he was answers by claiming not to have "known" of union activities of other than
confused by the question , not that he was in any real sense changing his Don Noland , or even "suspected" them , just having heard "rumors."
ALICEVILLE COTTON MILL, INC. 889
5. Supervisor Minor allegedly threatened that the plant
would close if the Union prevailed, and promised a wage
increase and a foreman's position to Don Noland if he
would stop his union activity. The versions of Minor and
Noland are not too far apart, just enough so that a violation
would be found were Noland's to be credited, and no
violation could be found were Minor's story accepted.
Without detailing either version, it suffices to say that since
Noland began each conversation, since on one occasion he
corrected an earlier statement that Minor had brought up
the subject of Noland getting fired, and said he (Noland)
had done so, since Noland and Minor have been friends all
their lives, and since Minor is not alleged to have otherwise
engaged in conduct violative of Section 8(a)(1), Minor's
version more accurately reflects what was said. I find no
violations, therefore, in this respect.
6. Supervisor John Henry Johnson allegedly interrogat-
ed employees, threatened them in various ways, promised
them benefits, solicited employees to talk to others to
persuade them to renounce the Union, and engaged in
surveillance of a union meeting.
Patsy Lavender, still employed by the Company, testified
that Johnson, about August 7, told her that if the employees
signed a union card they would be out of a job, and asked
her to talk to the employees and tell them to get their cards
back. Johnson also said that the Company was "planning a
raising, but he wasn't going to raise us on account of the
Union." Lavender, as well as other witnesses, also testified
to Johnson's driving by a church several times while a
union meeting was being held there on April 12. This was a
colored church, called New Canaan, located on a dirt road
running between two highways.
Johnson denied the August 7 conversation He admitted
driving by the New Canaan Church on April 12, but denied
having done so in order to spy on a union meeting. He
testified that it is not unusual for him to be on that road.
Three of the witnesses whose testimony directly conflicts
with that of Johnson's are Lavender, David Martin, and
James Morrow, all (at the time of the hearing, at least) still
in the employ of Respondent. Furthermore, Johnson was
not impressive as a witness, his testimony in various
respects (discussed below in connection with the 8(a)(3)
allegations as to Bonner, Zaiontz, and Noland) lacked
plausibility. Accordingly, I do not, in general, give credence
to Johnson's testimony. I find that Respondent violated
Section 8(a)(l) by threatening Lavender and by asking her
to talk to others to get them to turn in their union cards.io
Agnes Goodman Zaiontz testified that, about June 11,
Johnson came up to her and said that Company Official
Hopkins had been there the day before and wanted all the
employees to know that if the Union came in they would
not have a job. I have previously indicated that Zaiontz was
a credible witness, and her testimony as to this incident had
a ring of plausibility." I find accordingly that Respondent
violated Section 8(a)(l) by Johnson's threat to Zaiontz.
Jim Henry Bonner testified as to Johnson's driving past
the New Canaan Church three times on April 12 observing
the employees present at the union meeting. Bonner also
10 1 discussed the alleged surveillance above
11 This obviously does not mean that Hopkins had made such a
statement to Johnson
testified that on several occasions Johnson took Bonner
with him during a shift to the colored section of Aliceville
to look for employees when the Company was short-
handed, and on one of these occasions Johnson said "You
mess around here with the Union we won't have no job, we
are all doing well." Bonner testified that the longest time he
and Johnson were gone from the plant looking for help was
"one night we couldn't hardly get nobody and I couldn't set
the time, but it seems to me like we was away about half
that night." Respondent argues in its brief that Bonner's
testimony was "fantastic," that no company would have
one of only two supervisors on the night shift leave the
plant for half the shift looking for employees. I think it is
much more "fantastic" to believe that a completely illiterate
black man in the small town of Aliceville, Alabama, would
make up such a story out of whole cloth. Had Bonner
wanted to invent a threat, he could as easily have placed it
in the plant, or just outside, where he had some other
conversations with Johnson. Bonner's "it seems ... about
half the night" as the longest time taken on one of the
employee-seeking forays does not mean even that one took
a full half-shift, and even if it did, getting employees may
well have been deemed more important than having the
second supervisor there at all times, particularly in the light
of other testimony concerning a high degree of absenteeism
among the spinners. I find that Respondent violated
Section 8(a)(1) by this threat.
Don Noland testified that while he was at a place called
Turner's Cafe on April 7, Johnson asked him if he was
going to quit working for the Union, how many cards they
were getting signed, and said that if the plant went union
they would shut it down. Johnson went on to ask who
started the Union, and when Noland said he did not know,
Johnson said "Was it Preacher and his wife?" 12
Ed Smith, who was with Johnson, remarked "Ed Miller
spoke up about the Union before you did." Johnson then
said "Did he start it?" Johnson finished by saying that
Cooley wanted to talk to Noland about it, and added that
Noland had a good chance of making supervisor. Noland
also testified to Johnson's driving past the New Canaan
Church three times on April 12.
I credit Noland's testimony and find that Respondent
violated Section 8(a)(I) by Johnson's interrogations of,
threats to, and promises of benefit to, Don Noland. I find
also that Johnson did engage in surveillance of the union
meeting at New Canaan Church on April 12. It may well be
true that Johnson did not set out on the road past the
church for spying purposes, but his driving past three times,
with no proffered explanation other than that he often uses
that road, to me makes the suspicion a virtual certainty. By
this conduct, Respondent also violated Section 8(a)(1).
D. The Alleged Violations of Section 8(a)(3)
1. Cochrane and Miller
"Preacher" Cochrane and E. E. Miller were "laid off" on
June 25.13 The General Counsel alleges that the layoff was
discriminatorily motivated; Respondent asserts it was
12 This apparently did not refer to "Preacher" Cochrane
13 At the hearing, the General Counsel kept asserting that Cochrane and
Miller were "discharged," Respondent that they were "laid off " Since the
(Continued)
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessitated by decreased production, and the resultant
need to decrease costs.14
The question of motivation could be resolved very easily
by virtue of events that took place shortly after the layoff.
On June 26, Cochrane, Harris, and David Martin were in
Creek Turner's Cafe, about 12 miles from Aliceville.
Supervisors Johnson and Minor were sitting at a table there
with employees Al Minor, Ed Martin, and Ed Smith, when
Harris and Cochrane entered; David Martin was at the
next table at that time. Cochrane testified that Supervisor
Minor talked with him for a few minutes about "security,"
and the plant closing down. Subsequently Johnson offered
Cochrane a drink, and said "Preacher, why are you trying
to close the plant down?" Cochrane asked Johnson what he
was talking about, and Johnson replied "The Union. You
know the Union is going to close it down." Cochrane told
Johnson he was not trying to close the plant down, and
Johnson said "That's the reason why you got fired, on
account of the Union." Johnson then turned and started
talking to someone else (Cochrane "thinks" it was David
Martin).
Harris also testified that he and Cochrane sat at a table
next to Johnson's when they came to Creek Turner's Cafe.
He testified that in the course of some conversation about
the Union, Johnson made a remark that "we" (obviously
Cochrane and Harris) had been laid off because of their
union activity. Harris also overheard Johnson tell David
Martin that if he would get his union card back and not
have anything to do with union activities, he could get some
courses and get a foreman's job such as Minor had. On
cross-examination, Harris indicated that he did not hear the
precise words "laid off because of the Union" said by
Johnson, that Johnson had said "he knew we were going to
get it," and that the Union was "what he was referring to,"
and "the only thing he could have been talking about."
David Martin was at the cafe when Cochrane and Harris
arrived. He testified that Johnson told him he should not be
fooling around with the Union, that he could get a better
job if he forgot about the Union, and that the Company
would help him to take correspondence courses and train
him to be a supervisor if he would forget about the Union.
Johnson denied making any of the remarks attributed to
him. Supervisor Minor testified that he did not hear, or
does not recall, any of the remarks Johnson allegedly made.
Respondent's counsel contends that Cochrane and Harris
should be discredited because of certain differences
between their stories, because David Martin failed to
corroborate them, and, particularly, because the General
Counsel's witnesses placed the incident as having occurred
June 27, although both Johnson and Minor testified that it
occurred June 26, and supported that testimony with
convincing corroborating circumstances. I find none of
these reasons persuasive. The differences between Co-
chrane and Harris were minimal, and involved merely
question before me is Respondent 's motivation in not keeping them on the
payroll after June 25, there is no real need to resolve the semantics of the
matter Cooley, Respondent's plant manager, did testify that his own use of
the words discharge and layoff depended on whether the person let go was
guilty of some misconduct or work deficiency in the former case, or merely
a victim of economic conditions in the latter As noted above, even
Cooley's own usage seemed to be tailored to the Company's interest, viz,
his refusal to use the word layoff in the representation case.
matters such as the exact location of each individual on the
scene at all times, and the precise language used. David
Martin by his own testimony did not pay much attention to
the conversations taking place in what was, as the evidence
shows, a noisy place, and his testimony and that of Harris
as to certain statements were in substantial agreement. The
difference in the date, that is, whether the event occurred
June 26 or 27, does not amount to a material conflict, for
the people involved were together on one date or the other
and there is no significance to placing the occurence at
either. Indeed, the General Counsel's witnesses were not at
all certain about the date until they were pressed for a
certain date. I am satisfied that what confusion there was
stemmed from the fact that the so-called third shift was
from midnight to 8 a.m., and there is a very natural
tendency to be confused as to which day of the week such a
shift is on. Some of this same confusion was evident in the
testimony of Respondent's witnesses.15
For reasons already indicated, I do not credit Johnson's
denials, and credit Cochrane and Harris that Johnson said
the layoffs were for union activity, or words to that effect.
Johnson's having indicated, in so many words or by
implication, that the layoffs were occasioned by the union
activities of the employees, is itself a sufficient basis for
concluding that what he said was in fact so. I am reluctant
to stop there-for it is possible that Supervisor Johnson was
merely using the layoff to continue his campaign against
the Union, and that Cooley and Martin, whose decision it
was, were benignly motivated. Examination of the full
circumstances, and awareness of the fact that both Cooley
and Martin engaged in extensive conduct found to have
violated Section 8(a)(1), convince me that what Johnson
told Cochrane and Harris was in fact Respondent's motive
for laying off fixers Cochrane and Miller.
In the first place, the asserted economic need for the
layoff of the fixers does not withstand scrutiny. In broad
outline, Respondent claims that it added new machinery in
Aliceville designed to increase its spinning production
capacity from 124,000 to 192,000 pounds per week, which
would necessitate an increase in winding capacity; that in
October 1969, it started installing the new equipment; and
that Miller, Cochrane, and Pearson "remained" in the
winding department as fixer trainees to anticipate increased
production. When, in April 1970, production increased to
190,228 pounds per week, all three were promoted to full
fixers. Shortly thereafter, production declined, and on May
2 it was down to 155,000 pounds per week. A layoff of the
fixers then became necessary because with spinning
production down, there was not enough fixer work to keep
two fixers on each shift fully occupied.
The facts belie this defense. Thus, Wayne Martin testified
that there were two fixers on each shift in August 1969,
when he came to the Company.16 Martin also testified that
14 The alleged discriminatory layoff of Tommie Harris at the same time
will be considered separately, as it does not relate to any alleged decrease
in production
15 A colloquy between counsel and the testimony of Wayne Martin on
pages 604 through 606 of the transcript illustrate this confusion.
16 As noted above, Martin first testified that there was only one winder
fixer per shift prior to October 1969. He later changed his testimony, after
probing by the General Counsel , to say that there was more than one (and
ALICEVILLE COTTON MILL, INC.
Miller was a fixer (perhaps at that time a trainee) in 1966,
and was a "full fixer" in August 1969,17 and that Cochrane
was a fixer in the winding room before February 1970, and
had been a fixer "for some period of time before February
1970." This testimony completely refutes that of Plant
Manager Cooley, who testified that the Company decided
to add three fixers in the winding department, one per shift,
as a result of the high production figures from March 14
through April 4. Accepting Respondent's figures that there
was a decline in production in May and June, to an average
of about 160,000 pounds, the fact remains that the
production before any new machinery was installed had a
maximum of 124,000 pounds per week, and that there were
two fixers per shift before the 190,000 pound figure was
reached. It seems almost incredible that the Company
would have put extra fixers on in anticipation of a rise in
production, and then lay them off on the basis of a short
time decrease from the maximum rise expected, but still far
more than the old maximum. Bolstering my conclusion that
economic factors were not involved is the fact that by the
time of the layoffs, Cooley had been informed by Hopkins
that more spinning frames had been ordered, and their
delivery was expected in October 1970. With this anticipat-
ed increase in spinning capacity expected to occur in only
about 3 months, it is more than a bit odd that the Company
would lay off half the fixers on each shift when it did. It is
not even as if fixers had to stand by idly when production
decreased, for the record shows that fixers were often used
for other work when the machines were running well, so
that their fixing duties slackened.18 The Company having
operated in this fashion for some time before production
increased , and with the anticipation of still more new
spinning machinery in 3 months, the 2-month slackening
from the production high is so improbable a reason for
suddenly laying off one of the two fixers on each shift that I
reject it entirely.
Both Cochrane and Miller indicated to Cooley that they
needed work and would take a cut in pay, or some other job
such as yarn boy. Despite the fact that the Company
needed employees in other jobs (indeed, the decline in
production was attributed to attrition and absenteeism by
spinning department employees), the Company refused to
accede to these requests, claiming a company policy not to
put people back to work at a lower pay rate because
experience had shown they would not be satisfied. Of
course, keeping them at the same pay rate and having them
perform other duties, even if to a slightly larger extent,
would have been in keeping with past practice, and would,
it seems obvious, have served the dual objective of having
the trained fixers available for the anticipated increase in
spinning frames 3 months hence, and for any interim
increase that might have occurred. Obviously, were I
merely substituting my business judgment for that of the
Company, I would not base a violation thereon. But when
the claimed business judgment appears so improbable,
when the Company has engaged in so many acts violative
of the National Labor Relations Act, and when, as I have
found, Supervisor Johnson said immediately after the
this had to be two) fixers per shift in the winding department when he
began with the Company in August 1969
17 Cooley subsequently testified that Miller was a full fixer in April
891
layoff that union activity was its cause, I have no difficulty
in concluding that indeed it was. I find, accordingly, that
the Company violated Section 8(a)(3) and (1) of the Act by
discharging (or "laying off") Cochrane and Miller.
2. Harris
As I indicated earlier, Harris' case is in a different
posture-for his duties were not directly related to
production. Harris was hired February 16, 1970, by Cooley.
According to his own testimony, Harris was told by Cooley
at the time that the Company was doing some major
remodeling, and that he (Cooley) could take Harris on to do
some electrical repair work. Again according to Harris' own
testimony, certain major electrical repair work that had
been contracted out was completed about a month or so
after he began working. He was transferred to the second
shift shortly thereafter (apparently early in May), when
Moorehead, the only maintenance man on that shift,
became ill, and he worked there until his discharge on June
26. For the last 3 weeks of his employment, he worked with
Moorehead, who had returned, but was unable to do all the
work, or, indeed, work a full 48-hour week, until the very
last week of Harris' employment. When Harris was
terminated, Cooley told him that the Company was caught
up with their work, that Harris was an extra man, and was
not needed any more.
In all the circumstances, I am not convinced that the
General Counsel has satisfied his burden of proof as to
Harris. It is clear that his hiring was occasioned in large
part by some extraordinary nonrecurring special projects,
and that, although Harris did general maintenance work,
and notiust these extra tasks, the existence of these projects
stretched thin Respondent's maintenance force. It is also
clear that even though the extra projects were completed
some time before June 26, Harris was transferred to the
second shift because of the illness of that shift's regular
maintenance man, Moorehead. Even when Moorehead
recovered and returned to work, he worked only part time,
for several weeks, and only after he worked full time for 1
week was Harris terminated. Since there is no suggestion
that more than one full time maintenance man was needed
on the shift, and since no one was hired, even temporarily,
to do maintenance work that Harris might have been doing
if he had not had to replace Moorehead, it would appear
that Harris' services were no longer required upon the
complete recovery of Moorehead. It may well be that the
Company was glad no longer to need the services of one of
the Union's chief proponents, and the statement of Johnson
to Cochrane at Creek Turner's Cafe seemed to include
everyone who was let go on June 26, but in the case of
Harris, I am satisfied that the need for his services had
largely disappeared, and that he probably would have been
laid off, union activity or not. I shall therefore dismiss the
8(a)(3) and (1) allegations of the complaint as to Harris'
discharge.
1969
18 Martin testified that from January 1970 to the June 26 layoff, fixers
did work other than fixing at least a couple of times per week
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Bonner
Jim Henry Bonner was employed on March 11, 1969.
Except for the first 6 weeks of his employment, he has been
a sweeper on the third shift, under the supervision of John
Henry Johnson. Early in July, about 2 weeks before his
discharge, Bonner was stopped by Minor, who said "you
are messing up things around here." Bonner said, "Messing
up what?" Minor replied, "Mr. Cooley tells me he done give
you a job now to save your place and now you are trying to
get a union in on him. You are going to shut your mouth
and not talk at all or leave here."19 As I have found,
Johnson threatened Bonner on one occasion, "You mess
around here with the Union we won't have no job, we are
all doing well." This occurred shortly after Minor's talk
with Bonner.20
Bonner signed a union card early in the campaign. He
attended the union meeting at the New Canaan Church on
April 12, where he was observed by Johnson. He also asked
"a lot of" other employees to sign union cards.
The particular incident that led to Bonner's discharge
occurred July 17. According to Bonner, he was approached
by Johnson, who had fixer Ed Smith, deceased at the time
of the hearing, with him. Johnson said "you ain't picking up
these bobbins," and Bonner replied "Well, I picked up all I
see." Johnson said "you are not picking up these bobbins,
and I've got a card here for you to sign." Bonner asked
Johnson "Where's any bobbins?" Johnson replied "There's
some up to the other end I know." Bonner then went to the
other end, Johnson and Smith following, and Bonner asked
"Before I go, where's them bobbins what you said was up
here on the floor?" Johnson could not show him any
bobbins, and when Bonner repeated "where is them
bobbins?" Johnson said "Damn the bobbins, come on out
of here." Johnson and Smith then escorted Bonner to the
gate. The next morning Bonner came to the plant, and saw
Cooley, who told him he had been fired.
Bonner also testified that he had been told at one point
not to pick up bobbins, and that doffers would perform this
task, but that about 2 weeks before his discharge, Johnson
told him to go back to picking up the bobbins.
Johnson testified that Bonner was supposed to pick up
bobbins in the aisles, and had never been told not to do so
at any time.21 Johnson said that Bonner was discharged for
not picking up bobbins.22
Johnson also testified that the sweeper is supposed to go.
back and pick up bobbins even after he has swept on down
the aisle, and that Bonner was so instructed. He said that
anyone who saw a bobbin on the floor was supposed to pick
it up, including himself, Plant Manager Cooley, etc. He
added that it was not unusual for bobbins to fall on the
floor.
Johnson testified that the warning given Bonner on July
19 Minor denied the substance of this conversation . I credit Bonner,
who, for reasons previously indicated , I do not believe capable of
fabricating such a story.
20 Bonner had difficulty remembering the exact dates of the incidents to
which he testified . The conversation with Minor may well have occurred in
early June, as Minor testified to a conversation with Bonner at that time,
although, as indicated, he denied the substance of it testified to by Bonner.
This might also make the date of Johnson's threat earlier . In any event, the
facts are the significant things, and not the time they occurred.
21 This conflict is immaterial , as on the day in question , Bonner was
17 was the fourth warning he had received. The other three,
which, like the fourth, were introduced as exhibits, were
given for "not running his job satisfactorily" (May 17, 1969)
"failing to perform his job in a satisfactory manner"
(August 8, 1969), and "being off the job" (July 10, 1970).
Johnson prepares all his warning slips in advance, and does
not go back and make out a slip after speaking to the
person who is to receive it. Company policy, according to
Johnson, was to discharge employees on receipt of a fourth
warning, although some discretion was involved in that,
such as how badly the Company needed the employee, the
type of warnings given, and the length of time between
warnings. Johnson said that he was aware when he wrote
out Bonner's fourth warning that he had given Bonner three
others, and thus had reached a decision to discharge him,
which he did not discuss with anyone. Johnson explained
the words on the fourth warning "If this is not improved,
further action will be taken" as being "just the way I wrote
them all out so I just wrote it out." Finally, Johnson
repeatedly stated that he had been having difficulty with
Bonner ever since he came to work at the mill-he had
observed Bonner fail to pick up bobbins for the entire 18
months, and spoken to him as often as once a week about it,
and he had trouble "keeping him on his job . . . most ever
since he has been at the mill."
Cooley testified that Johnson was continually telling him
that he could not get Bonner to run his job or pick up
bobbins. Contrary to Johnson, Cooley testified with respect
to picking up bobbins that "we don't expect him to just turn
around, go back and get them but just get them as they go
back." Cooley added that bobbins can fall onto the floor
after the sweeper has gone by, and affirmed that company
practice is not to have the sweeper go back to pick up such
bobbins.
James Morrow, who replaced Bonner as the sweeper on
the third shift, testified that although he picks bobbins up as
he sweeps, he does not go back and pick up any that have
fallen on the floor. A number of employees testified that
they never saw Bonner fail to pick up a bobbin as he swept,
or kick one under a frame.
It is obvious from all the testimony, including that of
Respondent's witnesses Cooley and Johnson, that whatever
deficiencies Bonner had as a sweeper had existed
unchanged for the entire period of his employment with
Respondent. It is also obvious from the testimony of
Cooley, Morrow, and Bonner, and contrary to Johnson's
assertions, that a sweeper was not supposed to go back to
pick up a bobbin, even if he saw it, once he had swept
further down an aisle . Thus, even if, as Johnson testified,
there were some bobbins in the aisle at the "other end" of
the room when Johnson saw Bonner , on July 17, that would
not necessarily involve any dereliction on Bonner's part.
Nor would it suggest that he had failed to pick up bobbins
supposed to pick up bobbins. Where and to what extent is another matter
to be discussed.
22 Johnson 's testimony was confused with respect to whether Bonner
swept regularly in the winding room . At one point, he testified that Bonner
was not responsible for sweeping in the winding room , only in the spinning
room ; that the yarn men swept in the winding room . Yet the incident of
July 17 apparently did occur in the winding room . Subsequently, Johnson
seemed to indicate that Bonner did sweep in the winding room , but "later"
than the spinning room , and he also testified that Bonner was asked to
sweep the winding room three times a shift.
ALICEVILLE COTTON MILL, INC. 893
as he swept, for the evidence is clear to the effect that
bobbins can fall to the floor at any time, including
immediately after the sweeper has gone by, and for a
variety of reasons.
These facts, viewed in the light of Johnson's testimony
that he knew Bonner had already received three warnings
before July 17, so that he (Johnson) had made a decision to
discharge Bonner when he made the decision to give him
the fourth warning, make Respondent's reliance on the
policy of discharging a man who had received four
warnings no defense at all in this case.23
In short, I believe that Bonner did nothing wrong on July
17, and am convinced that any slight deficiencies in his
general performance on that day if any, were no different
from, or less than, what Respondent had tolerated for the
full 18 months of Bonner's employment. This is not to say
that an employer is required to tolerate inefficiency or
misconduct, or that having lived with it, he must continue
to do so. But when, as here, the only added factor is the
union organizational activity of Bonner, when, as here, the
particular offense is not even violative of company policy as
set forth by the plant manager, when, as here, the reason
given for the discharge does not even include the past
alleged deficiencies in Bonner's performance,24 and when,
as here , Bonner was personally the recipient of coercive
interrogations, and intimations of reprisals for his union
activity, the fact of past tolerance of the deficiencies
bolsters the General Counsel's affirmative case. I conclude,
for these reasons, that Respondent violated Section 8(a)(3)
and (1) by discharging Jim Henry Bonner.
4. Noland
Don Noland, a fixer in the spinning department, received
three written warnings in May, on the 4th, the 14th, and the
16th, and a 1-week layoff on the 16th. These actions are
alleged to have been discriminatorily motivated. Noland
was without any question the most active employee
advocate for the Union. He signed his union card in March,
attended all the union meetings , and solicited the signatures
of over 100 employees on union cards. Noland was at New
Canaan Church at the union meeting observed by
Supervisor Johnson on April 12. Just prior to that, on April
7, he was interrogated by Johnson at some length, and told
that if the plant went union , it would shut down. He was
questioned by Cooley on April 14 about how many cards
the Union had.
The first warning to Noland was given on May 4, for "not
getting my flags down."25 Noland testified that it was not
unusual to find flags when he reported for a shift, and that
on May 4, he had "a bunch of flags up when I went in,"
three or four hundred. Noland also testified that on other
occasions he was not able to get all the flags down (fix
them), but had not been warned.
Noland received his second warning on May 14 for being
outside smoking with another fixer named Cromer, who
also received a warning. Noland testified that he had
previously been outside smoking with other fixers but was
never warned, even though Supervisor Johnson, who issued
the May 14 warning, had been out with him on several
occasions. Johnson had never told him that the two
spinning room fixers were not allowed to go out and smoke
at the same time. I credit Noland that Johnson had been
with and seen the two fixers smoking outside.
Noland received his third warning May 16. Supervisor
Johnson walked up to him and said that he (Johnson) was
giving Noland his third warning ticket for "pestering people
on the job" and laying him off for 1 week. Noland asked
who had said he "was pestering them," and Johnson said he
did not know, that Noland would have to see Cooley.
Noland had denied to Johnson that he "pestered" anyone.
The following Monday, Noland spoke to Cooley, reciting
what had occurred the previous Friday. Cooley asked
Noland if he had not been pestering Frank Wilson on his
job, and Noland replied "No." Cooley said "Well, Mr.
Johnson and Jimmy (Minor) and Wilson said [you were],"
and Noland remonstrated that he would call them all a liar
because he was not pestering them. Noland also spoke to
Cooley about the previous warning given him for smoking
outside, mentioning that he had been out smoking before,
with both fixers on the shift. Cooley did not comment
further on this.
Noland gave his version of what occurred with Frank
Wilson. Noland had to go to another department to get
some new roping. Wilson and another employee, J. D.
Little, were standing there talking and pointing at Noland.
Little said "He's yellow" (referring to Wilson, apparently),
and Noland said "I know it." Wilson then said "Well, I
don't have to sign a card if I don't want to," and Noland
replied "That's right, but you ought to." No one else
testified as to this incident as neither Wilson nor Little was
called as a witness , and apparently no one else saw what
happened. Martin and Johnson knew nothing about the
incident other than what was relayed to them by Minor,
who reported the complaint by Wilson. Cooley testified
that it was reported to him that Noland was hindering
Wilson on thejob, by trying to get him to sign a union card.
Cooley spoke to Wilson, who said he wished something
could be done "about that fellow worrying him, Don
Noland worrying him on the job." Cooley then told
Johnson to give Noland a written warning "about being out
of his department, in another department." Cooley stated
that the layoff of Noland was not for union activities, but
"was for being out of his department and in the other
department, hindering a man on the job."
Cooley reiterated on cross-examination that Noland was
given the warning for hindering a man in another
department, not for trying to "get him a union card."
Cooley further stated that it was not against the rules for
23 1 am inclined to believe that Bonner had "received" three previous
warnings, despite his contrary testimony However , it was obvious to me
that Bonner was not attempting to hide anything , rather, as noted above,
he could neither read nor write, and was clearly in no position to know
whether, when Johnson or anyone else spoke with him about something he
may have been doing wrong , a formal warning was involved I attribute
other minor discrepancies in Bonner's testimony , again, to his inability to
articulate clearly, or phrase matters precisely , and not to any attempt to
deceive or dissemble
24 Except insofar as mechanical application of the "four warning means
discharge" policy applied, and Johnson testified that the decision to
discharge really occasioned the warning rather than the other way around.
25 The testimony was not too clear as to what the "flags" were Noland
testified that a flag "is an end that wouldn't run, where a spinner done
broke the rope back and flagged," and that "the flag takes the bobbin up
and sticks it up on the frame and you can see it when you walk by."
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persons to go from one part of the mill to another to talk to
them. He added "But, it is wrong for one to go from one
part of the mill to the other end, we will say, agitate him or
worry him or hinder him on his job. It is agin the rule for
you to go even within your own department if you are
worrying anybody on the job. It is agin the rule." Cooley
continued that Wilson said Noland had been "worrying
him," or "bothering him," or "pestering him," or
"hindering him." Cooley sought in his testimony to
distinguish this incident from situations where employees
could have conversations with other employees in other
departments by saying "it was different because he
(Noland) was pestering him (Wilson) on the job," and "I
don't know what other people talk about . . . we had a
complaint on this." Cooley admitted that he did not speak
to Noland before giving him the warning, or make any
attempt to find out Noland's side of the story.
Turning first to the third warning, which triggered
Noland's 1-week suspension, I am convinced that it was
discriminatorily motivated, and therefore that this warning
and the resultant suspension were violative of Section
8(a)(3) and (1) of the Act. Noland's own version of what
occurred stands uncontradicted in the record, for, as noted,
Frank Wilson was not called as a witness . Even assuming
that Cooley acted in good faith on the basis of what Wilson
reported to Minor and later told Cooley, the General
Counsel having established that no misconduct occurred
(Cooley testified that there was no company rule or policy
prohibiting employees from talking to other employees,
even in other departments), the General Counsel correctly
contends that a violation has been made out under
N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21, for Noland
was engaging in protected activity. I find, in any event, that
Respondent was not in good faith in giving the warning, but
was motivated by Noland's known prominence in the
Union's organizational campaign. Cooley's own testimony
was to the effect that he never sought Noland's version of
the incident, that he gave the warning because of "the way
he (Wilson) reacted,"26 and that he told Johnson to give
Noland "a written warning about being out of his
department, in another department." When coupled with
Respondent's knowledge that Noland was the most active
union proponent, and the violations of Section 8(a)(1)
directed at Noland, this testimony makes it apparent that
the only real distinguishing feature between Noland's case
and that of talking to employees out of one's own
department-admittedly not a violation of any rule,
although Cooley gave Johnson that reason for warning
Noland-was the fact that Wilson's complaint about
Noland had to do with Noland's union activity.
The first and second warnings present somewhat
different considerations. As to the first, for having too
many flags up, the only testimony proffered was that of
Noland himself, who testified credibly that "I had a bunch
of flags up . . . when I went in ," that it was not unusual to
see many flags up when he reported, or during his work
stint, that on prior occasions he had been unable to get all
the flags down , but had not been warned , and that Johnson
had praised him in February, before any union activity
began , for "doing a good job keeping the flags fixed up
there ...." I accept this uncontroverted testimony, and
find in all the circumstances that Noland was issued this
warning for his union activity, and not for any dereliction
on his part. I find , therefore, that by this first warning to
Noland, Respondent violated Section 8(a)(3) and ( 1) of the
Act.
The second warning to Noland, as noted, was issued
because he was sitting outside smoking with the other fixer
in the spinning department on his shift . Noland testified
that this had happened before , with Supervisor Johnson
smoking with the two fixers , that Johnson had never
warned them before , or told them not to be out together,
and that there was no company rule to that effect . Johnson
denied that he himself had never been out smoking with
both fixers at the same time . Asked "Have you ever
observed both of your fixers standing outside the mill
smoking and not said anything about it?" Johnson replied
"Yes, sir." When company counsel then asked "I say have
you ever caught both of them smoking and didn't write
them up?" Johnson then replied , "Well, no , sir, not at the
same time ." I believe that Johnson 's first answer represents
the truth , and credit Noland's testimony . For substantially
the same reasons that impel my conclusion that the other
warnings were discnminatonly motivated , I find that this
second warning , too, was motivated by Noland's zealous
support for the Union , and that Respondent thereby
violated Section 8(a)(3) and (1) of the Act.
5. Zaiontz
Agnes Goodman Zaiontz was hired about May 15 as a
spinner on the second shift, but after about a week was
transferred to the third shift because she had a babysitting
problem. She was at first given two "sides" to spin; this was
increased to four, then six, and finally seven, the number of
sides she was running as of July 18. On that day, Supervisor
Johnson told her at the end of the shift that the Company
could not employ her any more because she could only run
seven sides.27 According to Zaiontz, she said "Now, Mr.
Johnson, that's not why you are doing this, it's because I am
campaigning for the Union," and he replied "That's beside
the point. Your check will be ready Monday morning."28
Johnson testified that he told Zaiontz she was not making
any progress on the Job.
When she got home, Zaiontz called Cooley. She asked
why she had been fired, and Cooley assured her that he
knew nothing about it. He added that Johnson had not
mentioned it to him, that he would talk with Johnson about
it, and would call her again on Monday. During the
conversation, Zaiontz told Cooley she felt the firing was
because she was campaigning for the Union. Cooley said he
knew nothing about any union activity going on, that he
was aware of somebody running around with union cards,
but did not think that amounted to anything. In a
26 On redirect examination , Cooley responded "No" to counsel 's employees in other departments
question "Do you pay any attention to an individual 's reaction9" Although 21 Johnson testified that he told Zaiontz she was not making any
his first answer was probably closer to the truth , his second would make progress on the Job
the case for a violation even stronger , for the situation then would be 28 Johnson denied that the word union was mentioned
completely indistinguishable from the admittedly permissible talking to
ALICEVILLE COTTON MILL, INC. 895
subsequent conversation with Cooley, apparently on the
following Tuesday, July 21, Zaiontz asked Cooley if her
check was ready (Johnson having told her it would be), and
Cooley replied that he did not want her picking up her
check or signing a separate slip because as far as he was
concerned she was still an employee of the Company.
Cooley did demur at that point to taking her back without
talking it over with Johnson. Ultimately, on Friday, Cooley
called Zaiontz' house and left a message that she could
report back to work. She did so, on the midnight shift that
night.
Johnson testified that he sent Zaiontz home for "not
running her job, not making any progress on the job." He
had discussed with Cooley a few nights before he "laid her
off" the problems he was having with Zaiontz, telling
Cooley that "she wasn't making no progress," and Cooley
said that "if I couldn't keep her on thejob we would have to
let her go." Johnson testified that he told Zaiontz "There
wouldn't be any use in her coming back because she wasn't
making any progress on the job."
Despite Johnson's testimony that he had authority from
Cooley to let Zaiontz go, and his statement to Zaiontz that
he told her there was no use in her coming back, Cooley,
according to his own testimony, told Zaiontz that Johnson
did not fire her, "he sent her home." Cooley essentially
confirmed Zaiontz' testimony concerning the other com-
munications during the week she was out, except that he
testified that the Union was never mentioned in any of his
telephone conversations with her.29 Cooley further testified,
on cross-examination, that other trainees were running
seven sides at that same time, and answered "There could
have been" to the question "Weren't there several trainee
spinners at that time that were running seven sides or less?"
In another conversation (explaining why fixers had to be
laid off), Cooley testified that the Company was having a
real problem keeping enough spinners on the job, because
of quits and absenteeism, and that "when an old spinner
quits, and you have to train spinners for that job, it might
take four or five spinners to run one spinner'sjob, and train
him."
As indicated above, on July 16, just 2 days before
Johnson "sent her home," Zaiontz had been approached on
the job by Assistant Plant Manager Wayne Martin, who
told her that the Company did not have a union, did not
want one, and did not feel that it needed one, and that he
knew who the union committee was, and they would be
"discharged one at a time." About a month earlier, on June
11, Johnson had told Zaiontz that if the Union came in the
employees would not have a job, and that the new spinning
frames that had been ordered would be sent to Fayette if
the Union came in. When Johnson said that he assumed
Zaiontz was for the Union, she replied "one hundred
percent."
The above facts establish, in my opinion, that Respon-
dent's I week "layoff" of Zaiontz was discriminatorily
motivated. She was clearly identified by Respondent as a
strong adherent of the Union, even though a relatively new
employee, and had been singled out by Respondent for
specific threats and other conduct violative of Section
8(a)(1). Plant Manager Cooley's own testimony demon-
strates that other new employees were running as few, or
perhaps less, sides as Zaiontz. Yet she was sent home
despite the Company's admitted shortage of even trainee
spinners during that period. Further evidence of Respon-
dent's unlawful motivation lies in the discrepancy between
Johnson's and Cooley's stories. Johnson purported to fire
Zaiontz, telling her, according to him, that there "wouldn't
be any use in her coming back," and that he had authority
from Cooley to let Zaiontz go. Cooley, according to his own
testimony, told Zaiontz that Johnson did not have authority
to fire her. The fact that Cooley took her back a week later
does not alter my conclusion. Perhaps Zaiontz mentioning
to him that she thought the action taken was because of her
union activity impelled Cooley to take her back, Perhaps
the unlawful motivation was Johnson's alone.
In either case, and without any need to determine, or
infer, precisely why Respondent decided to recall Zaiontz,
the motive for her being let go in the first place, as I have
found, was discriminatory, and Respondent thereby
violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Company, by interrogating employees about
their union membership, activities, and sympathies, by
threatening to close its plant, withhold wage increases, or
discharge employees, by promising benefits to employees to
dissuade them from union activities, by soliciting its
employees to inform on the union activities of other
employees and to persuade other employees to defect from
the Union, by threatening not to bargain in good faith in
the Union were successful in organizing its employees, and
by engaging in, and creating the impression of engaging in
surveillance of the union activities of its employees, has
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
2. The Company, by discharging or laying off James W.
Cochrane, Earnest Edward Miller, Jim Henry Bonner, and
Agnes Goodman Zaiontz, and by issuing written warnings
and a I-week layoff to Don Noland, as described above,
has discriminated in regard to hire and tenure of
employment, and terms and conditions thereof, in order to
discourage membership in the Union and employee
participation in concerted activities, and thereby has
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) and 2(6) and
(7) of the Act.
3. The Company did not violate the Act by discharging
James Thomas Harris.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate
the policies of the Act.
Having found that Respondent discriminatorily dis-
29 Particularly since Zaiontz' testimony was that she brought up the
Union, and Cooley said it had nothing to do with what happened,
according to her own testimony , I credit Zaiontz' version.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged James W. Cochrane, Earnest Edward Miller, Jim
Henry Bonner, and Agnes Goodman Zaiontz, and
discriminatorily issued warning notices to, and suspended,
Don Noland, I shall recommend that the Respondent offer
each of these employees (except Agnes Goodman Zaiontz,
who was reinstated, and Don Noland, who was suspended
for I week) immediate and full reinstatement to their
former jobs, or if these jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges, and make each of them
(including Zaiontz and Noland) whole for any loss they
may have suffered by reason of the discrimination against
them. Any backpay found to be due shall be computed in
accordance with the formulas set forth in F W Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the foregoing findings and conclusions and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended: 30
ORDER
Respondent, Aliceville Cotton Mill, Inc., Aliceville,
Alabama, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in United Textile Workers
of America, AFL-CIO, or any other labor organization, by
discriminatorily discharging, laying off, suspending, or
issuing warning notices to its employees, or otherwise
discriminating against them in any manner with regard to
their hire and tenure of employment or any term or
condition of employment.
(b) Coercively interrogating employees concerning union
activities, sympathies, and membership.
(c) Threatening employees with plant closure, discharge,
or other economic reprisal should they select a labor
organization as their bargaining representative.
(d) Promising benefits to employees to dissuade them
from union activities.
(e) Engaging in, or creating the impression of having
engaged in, surveillance of employees' union meetings or
activities.
(f) Requesting and soliciting employees to inform
Respondent as to the union activities of other employees or
to persuade other employees to defect from the Union.
(g) Threatening employees that it would not bargain in
good faith if the Union successfully organized its employ-
ees.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act-
(a) Offer James W. Cochrane, Earnest Edward Miller,
and Jim Henry Bonner immediate and full reinstatement to
their former positions or, if these positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges.
(b) Notify the above-named employees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from
the Armed Forces.
(c) Make James W. Cochrane, Earnest Edward Miller,
Jim Henry Banner, Don Noland, and Agnes Goodman
Zaiontz whole for any loss of earnings suffered by reason of
the discrimination against them, in the manner set forth in
the section above-entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this Order.
(e) Rescind and delete from the personnel file of Don
Noland the warning notices given him on May 4, 14, and
16, 1970, and give them no effect.
(f) Post at its place of business at Aliceville, Alabama,
copies of the attached notice marked "Appendix." 31 Copies
of said notice, on forms provided by the Regional Director
for Region 10 of the National Labor Relations Board, after
being duly signed by Respondent's authorized representa-
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.32
30 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes
31 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD
31 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 10, in writing , within 20 days
from the date of this Order, what steps have been taken to comply
herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial, in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we, Aliceville Cotton Mills, Inc., violated the
law and has ordered us to post this notice.
ALICEVILLE COTTON MILL, INC.
WE WILL NOT discharge, suspend, or issue warning
notices to any employee for supporting or joining
United Textile Workers of America, AFL-CIO, or any
other union.
WE WILL NOT question you about your union
membership or how you feel about unions.
WE WILL NOT threaten to close our business, or
discharge employees, if you join, support, or choose a
union.
WE WILL NOT spy upon union meetings of our
employees, or tell employees that we have done so.
WE WILL NOT ask you to speak to other employees
against the Union, or to tell us about other employees'
union activities.
WE WILL NOT promise employees raises, or other
benefits, to keep you from joining or supporting a
union.
WE WILL NOT threaten to refuse to sign a contract if
you choose the Union to represent you.
WE WILL NOT in any other way punish you for
supporting orjoining the Union, or any other union.
WE WILL offer James Cochrane, Earnest Edward
Miller, and Jim Henry Bonner their jobs back, and pay
897
them and Don Noland and Agnes Goodman Zaiontz
for losses they suffered as a result of their discharge or
layoff.
WE WILL remove the warnings from Don Noland's
personnel file.
Dated By
ALICEVILLE COTTON MILLS,
INC.
(Employer)
( Representative ) (Title )
This is an official notice and must not be defaced by
anyone.
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this Notice or compliance with
its provisions, may be directed to the Board's Office, 1417
City Federal Building, 2026 Second Avenue North,
Birmingham, Alabama 35203, Telephone 205-325-3877.