Archer Mills, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1957

118 N.L.R.B. 930 (N.L.R.B. 1957)

930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association and its members to recognize and bargain with the
International Longshoremen's Association, Independent, and its
affiliated locals for a unit composed of employees of members of
the New York Shipping Association in all Atlantic and gulf coast
ports unless the International Longshoremen's Association, In-
.dependent, has been certified as collective-bargaining representa-
-tive of such a unit of employees pursuant to Section 9 of the Na-
;tional Labor Relations Act.
LOCAL 1422, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, INDEPENDENT,
Labor Organization.
'Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
,and must not be altered, defaced, or covered by any other material.
Archer Mills, Inc. and American Federation of Hosiery Workers,
AFL-CIO. Case No. 10-CA-2466. August 1, 1957
DECISION AND ORDER
On January 30,1957, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
,spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed ex-
cceptions to the Intermediate Report together with a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
.delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at: the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, Respondent's exceptions and brief,' and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c) of
,the National Labor Relations Act, as amended, the National Labor
,:'These adequately present Respondent 's position . Its request for oral argument Is there-
ore denied.
1-18 NLR$ No. 116.
ARCHER MILLS, INC. 931
Relations Board hereby orders that Respondent Archer Mills, Inc.,
Columbus, Georgia, its officers, agents, successors and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in American Federation of Hosiery
Workers AFL-CIO, or any other labor organization of its employees,
by discriminating in regard to hire or tenure of employment or any
term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist the aforesaid labor organization, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in any other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all of such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to John E. Horton immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice
to the seniority or other rights and privileges previously enjoyed by
him.
(b) Make whole John E. Horton in the manner set forth in the
section of the Intermediate Report entitled "The Remedy" for any
loss of' pay he may have suffered by reason of Respondent's dis-
crimination against him.
(c) 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 determine the amount of back pay
due under the terms of this Order.
(d) Post in conspicuous places at its place of business in Columbus,
Georgia, in all locations where notices to employees are customarily
posted, copies of the notice attached to the Intermediate Report and
marked "Appendix A."' Copies of said notice, to be furnished by
the Regional Director for the Tenth Region, shall, after being duly
signed by Respondent's official representative, be posted immediately
upon receipt thereof, and be maintained by Respondent for a period
of sixty (60) consecutive days thereafter. Reasonable steps shall be
taken by Respondent to insure that said notice is not altered, defaced,
or covered by any other material.
2 The notice is amended by substituting the words "A Decision and Order" for "The
Recommendations of a Trial Examiner." In the event that this Order is enforced by a
decree of a United States Court of Appeals, there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United
States Court of Appeals, Enforcing an Order."
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order of the steps
taken to comply herewith.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by the Union above named against the Company above named,
herein the Respondent , the General Counsel issued a complaint alleging that the
Respondent engaged in unfair labor practices within the meaning of Sections 8 (a)
(1) and ( 3) and 2 ( 6) and (7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act, by discharging John E. Horton on or about September 22, 1955,
because of his union membership and activity . The Respondent filed an answer
denying the unfair labor practice allegations . A hearing was held between October 2
and 4 , 1956 , at Columbus , Georgia, before Arthur Leff, the duly designated Trial
Examiner. All parties were represented at the hearing by counsel , and were afforded
full opportunity to examine and cross -examine witnesses , to introduce evidence
bearing on the issues , to argue orally upon the record , and to file briefs and proposed
findings and conclusions . At the conclusion of the hearing , ruling was reserved on
a motion of the Respondent to dismiss the complaint for want of proof. That
motion is now disposed of in accordance with the findings of fact and conclusions of
law made below . On November 13, 1956, the Respondent filed a brief.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Archer Mills, Inc., a Georgia corporation, is engaged in the manufacture of full
fashioned and other hosiery at Columbus, Georgia. During the year ended Decem-
ber 31, 1955, a representative period, the Respondent sold and shipped products to
points outside the State of Georgia of a value in excess of $5,000.
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Hosiery Workers, AFL-CIO, herein called the Union,
is a labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
The only issue in this case is whether the Respondent discriminatorily discharged
John E. Horton on September 28, 1955. Before his discharge, Horton, a knitter,
had worked continuously for the Respondent for over 23 years, except for a 4-year
break during World War II when he was in the military service. He was admittedly
regarded by supervision as a highly competent and careful employee. Horton was
discharged during the course of a union organizational campaign which began
about 2 weeks before. When discharged, he was serving as the general chairman
of the Union's organizing committee, a position to which he had been elected at the
first organizational employee meeting held on September 18, 1955. The General
Counsel contends that the discharge was motivated by Horton's union activity to
which the Respondent was opposed. The Respondent, on the other hand, insists.
that Horton was discharged for violating a company -rule prohibiting knitters from
leaving their machines unattended while the machines were in operation. The
particular precipitating offense of which Horton is said to have been guilty is that he
left his machine for a period of less than 10 seconds to take a drink of water from
a nearby water cooler located 6 feet, 3 inches from his working cabinet-but of this,
more, later.
Horton's discharge occurred at the crest of an organizational campaign that began
about the second week of September 1955 and ended in March 1956 when the Union
won a Board-conducted election.1 There is no allegation in the complaint that,
except for Horton's discharge, the Respondent during the campaign engaged in unfair
labor practices. But the record, nevertheless, shows clearly enough, and indeed the
Respondent does not dispute, that company management was opposed to the advent
I The Respondent has since entered into a collective-bargaining contract with the Union.
ARCHER MILLS, INC . 933
of a union in the plant .2 During the campaign management held frequent super-
visors' meetings to discuss the subject of union organization . W. M. Shaw, the
Respondent 's personnel manager, substantially conceded that the meetings were
concerned generally with a discussion of how the Union might be excluded, though,
according to him, by legal means only. The record is far from clear as to exactly
what occurred at those meetings . When cross -examined on that subject , the Re-
spondent 's managerial and supervisory officials seemed evasive, professed inability
to recollect details, and left me generally with the impression that they were willing
to disclose only part of what they actually knew. Shaw, at least , admitted this much-
that top management clearly brought out at the meetings that it did not want a union
in the plant . As appears from the testimony of the Respondent 's witnesses, the
supervisors were instructed that under the law they must refrain from coercive
statements , and that they must not discriminate against employees because of their
union activities . But they were also instructed that there would have to be a general
tightening up of plant discipline, and that employees would have to be watched
more closely . The explanation for the latter instructions given by one supervisory
official at least suggests that the instruction was aimed more at union supporters
than at others . Thus, Knitting Department General Foreman James Gordy, who
issued the instruction to his subordinate supervisors , testified:
Everyone seemed to be upset . Quite a few had the attitude that if they got the
Union in there they could do as they pleased , so to speak , and a lot of them
didn 't perform their jobs as they should.
Further evidence of the Respondent 's opposition to the Union may be found in
a memorandum the Respondent issued to its supervisors during the campaign. The
memorandum set out a list of questions and answers that the supervisors were told
should be used by them as a guide in their discussions with employees concerning
union organizational activity . The supervisors were told that they could show
the memorandum to employees . The questions and answers contained in the memo-
randum, though not coercive in character , were obviously slanted and designed to
dissuade employee allegiance to the Union and to induce employee opposition thereto.
Supervisory personnel in their individual contacts with employees reflected man-
agement's opposition to the Union . On the Monday following the first union meet-
ing, Foreman Horace Jackson-who later discharged Horton-told employee John
B. Jackson , a knitter, "I understand that the union man is back in town . Remember
what I told you in the past. It will get you fired and run off the job ." Horace
Jackson 's reference was to an earlier conversation he had had with John Jackson
about 18 months or 2 years before, during another organizational campaign. He
had then told John Jackson that unions were no good and succeeded only in getting
employees fired and blackballed about town . On the day following the second
union meeting on September 25, Foreman Lyda of the preboarding department told
a group of girls who informed him they had joined the Union that he hoped they
knew what they were doing; that it would be harder to work under union conditions;
that some would find that under union conditions they could not "make production,"
and that he hoped the girls would not blame him for anything that happened. On
October 12 Foreman Lumpkin approached employee Opal McCraney , an inspector,
and told her that, although he did not intend to quiz her about the Union , he wanted
her to know that he was "100 percent against the Union because he did not think
it would do her or anyone else any good ." Lumpkin also told another inspector
under his supervision, Lucille Gamble, that the Company , if unionized , would be
unable to compete in the selling market. He suggested to Gamble that she not
attempt to bump her head against a brick wall, for she would find the wall harder
than her head . Lumpkin also approached other employees whom he supervised,
without solicitation from them , to voice his opposition to the Union .3
Horton was elected general chairman of the organizing committee at the first
union organizational meeting held on September 18, 1955 , attended by some 38
2 Evidence of an employer ' s opposition to union organization, or the absence of such
evidence , is, of course , always relevant to the issue of an employer 's motivation in a dis-
criminatory discharge case . Conduct relied upon to show opposition need not necessarily
be of such a character as independently to constitute a violation of the Act . See, e. g.,
Southern Desk Company , 116 NLRB 1168.
2 The statements set forth in this paragraph are not alleged to be violative of Section 8
(a) (1), nor are they found to be. The factual findings as to the statements made by
the supervisory employees are supported by uncontradicted testimony.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees.4 Three other employees-Minor Moore, William Marks, and Frank
Kelly-were appointed committeemen for each of the three shifts. Two days after
the first meeting, the Respondent discharged Moore as well as another union member.
On the following day, September 21, 1955, the Respondent discharged Marks, the
second shift committeeman. On September 27, the Respondent discharged John.
Jackson who, at the second organizational meeting, held on September 25, had been
elected to replace Marks as second shift committeeman. Horton testified that as
a result of those discharges he "took extra precaution to try to perform [his] work
in the best manner [he] knew how . . . because being a member of the Union
and the Chairman of the Organizing Committee [he] was trying to keep from being
discharged if that was the reason for being discharged." Moore and Marks informed
Horton that when they had asked their supervisors if their discharge was due to their
union activities, the supervisors had disclaimed any knowledge of the existence of
such activities. Horton suspected that the discharge of the other committeemen was
union-connected, and feared he might be next in line. He consulted Adolph Benet,
the Union's representative. Benet advised him that he should as a matter of
self-protection put his supervisor on formal notice of his relationship to the Union.
Accordingly, on September 21, 1955, Horton visited General Foreman James H.
Gordy at his office. Despite Gordy's declared unwillingness to listen, Horton man-
aged to get across that he was a member of the Union and on its organizing
committee. Horace Jackson, Horton's immediate supervisor, was present at the
time.
The complaint contains no allegation, and the General Counsel, unlike the Union,
makes no claim that any of the employees referred to above-other than Horton-
were discharged for discriminatory reasons.5 It should be emphasized the discharges
are not here relied upon, in whole or in part, as evidencing, or even suggesting, that
the Respondent unlawfully discriminated against such other employees. This evi-
dence was adduced by the General Counsel solely for the purpose of explaining why
Horton chose to notify his supervisors of his union activity, and for the further
purpose of reinforcing the plausibility of Horton's testimony that he took extra care
during the period immediately prior to his discharge not to do anything that might
be considered improper. The evidence is considered relevant here for such purposes
only.
As noted above, Horton was discharged on September 28, 1955. The events
immediately leading to his discharge are not in dispute. They are as follows:
Horton that night was working on machine #15.6 Machine #16, the other
knitting machine in that particular alley, was not in operation at the time and Horton
was alone in the alley. At the time of the particular events here involved, Horton's
machine was runing through the main leg of the stocking. That is the stage of the
knitting operation-lasting about 12 to 15 minutes-when the machine requires
least attention. It is the period when the knitter has the greatest time to attend
to other duties away from the machine, if he has any, such as tying up work at his
knitting cabinet, or tying up yarn at the back of his machine, or, if he is otherwise
caught up in his work, to simply stand by. Horton, who was caught up with his
other work, was eating a sandwich at the time.? While doing so, Horton stepped
over to a water fountain located 6 feet, 3 inches to the right and slightly to the rear
of his working cabinet,8 took 2 or 3 swallows of water, and returned at once to his
cabinet. He had often done the same thing before without criticism while super-
visors were around. The machine was out of Horton's direct sight for less than
10 seconds. During all that time he could hear the machine operate, and he was
4 The plant has about 350 employees in all, of whom about 150 are employed as knitters.
5 The Union's charge which instituted this proceeding alleges that the Respondent within
the 18-day period beginning on September 20, 1955, discriminatorily discharged some 30
employees, including all those named above and several others shown by the record to
have been elected committeemen in departments other than the knitting department. The
Regional Director, however, refused to proceed with the charge as to any but Horton,
and, on appeal to the General Counsel, the Regional Director's action was sustained.
9 Reference is made to Appendix A, hereto attached, showing, though not to exactly
accurate scale, the location of that machine and other machines and fixtures in its im-
mediate vicinity.
7 Knitters do not have any lunch periods. They are expected to work right through
their shift. It is customary for them to eat their lunch while at work.
8 The distance between the cabinet and the water cooler was so close that a man of
Horton' s size (5' 11") could touch both simultaneously with his arms outstretched.
ARCHER MILLS, INC. 935
experienced enough to know from the rhythm of its operation that it was running
smoothly. When Horton first went to the water fountain, Horace Jackson, his
foreman, was about 50 or 60 feet up the main aisle, but this did not deter Horton
who did not believe he was doing anything he should not. Jackson, observing
Horton away from his machine, walked down the aisle at a rapid pace, passing,
as he did so, without particular notice or comment, another employee-Remus
McCraney-who had then briefly left his own machine unattended to walk across
the aisle to get some trays. Almost simultaneously with Horton's return to his
knitting cabinet, Jackson walked around Horton to the switch box on Horton's
machine and shut off the machine. As he did so, he declared, "That's it, you're
through." When Horton, expressing amazement at Jackson's action, asked why
he was being so suddenly discharged after his many years of faithful service, Jackson
replied, "You know you shouldn't leave your machine unattended."
As has already been noted, it is the Respondent's position, disputed by the General
Counsel and the Union, that Horton, by going to the water cooler under the circum-
stances set out above, violated a company rule prohibiting knitters from leaving
their machines unattended while their machines were in operation. Before con-
sidering the rule and its application, if any, to the conduct engaged in by Horton,
it is advisable in the interest of clarity to describe in more detail the knitting machines
and their operation.
The full fashioned hosiery knitting machines used by the Respondent are about
50 to 60 feet in length, about 3 feet in depth, and about 51/2 feet high. They are
set up in rows with the fronts of two machines facing each other in a common alley
several feet wide. Between the machines that are backed up to each other there is a
space just about wide enough for a man to walk. At the end of each machine, on
the main aisle side, and somewhat set apart from the machine, there is the knitter's
cabinet which is about 4 feet high and as wide as the machine. The cabinet is used
as a workbench by the knitter, and also as a store place for yarn, trays, etc. It has
receptacles on the far side as well as the near side of machine. On the front side
of the machine, about 20 or 24 inches from the aisle end, there is a switchbox from
which the machine may be turned on or off. There is also a switch bar along the
front of the machine .that may be used for the same purpose. The bar extends along
the full length of the machine, except for about 30 inches at each end. The machines
cannot be turned off from any other point. Horton at the time of his discharge was
working at machine # 15 which is in the same alley as machine # 16, and back to back
with machine #14. Immediately behind the knitter's cabinet of machine #14, and
practically touching it, there is a steel column, and behind the column and against
it the water cooler to which Horton went for his drink of water. All this may per-
haps more clearly be seen by reference to the diagram, attached hereto as Appendix
A, showing the location of the machines, the water cooler, and other fixtures in the
immediate vicinity of machine # 15. The distance from the switch box on machine
#15 to the left back (facing the machine) of the cabinet is 6 feet, 4 inches; the
cabinet is 3 feet wide; and the distance from the right back of the cabinet to the
water cooler is 6 feet, 3 inches-making a total distance from the switch box to the
water cooler of 15 feet, 4 inches.
While performing his work operations, the knitter not only walks up and down
the alley along the front part of his machine, but also is obliged to go to other areas.
Thus, if he has waste to dispose of, he deposits it in a wastebasket which, for ma-
chine #15 is located at the right side of the cabinet, near the cabinet of machine
#14. The knitter is frequently called upon, while the machine is in operation, to
perform certain work tasks such as tying in yarn, along the back length of the
machine. This he does, even when he has no alley partner at the time. When
working at the back of the machine, he may at times be 30 feet or more from the
nearest point at which he can shut off the machine in case of an emergency. The
knitter also must on occasions perform work at the cabinet-at times at the side near-
est the machine, at times at the other. When working on the side nearest the ma-
chine, the knitter will have his back to the machine. In addition, the knitter is often
called upon to help out his alley partner, if he has one, and when he does so he also
has his back to his own machine. During periods of the machine's operation when
there is nothing in particular to be done, it is customary for a knitter to stand
propped up against the back of his cabinet watching the machine.
Knitting machines are expensive, running to about $40,000 each. A breakdown
may involve costly repairs. For that reason, the Respondent has always expected
its knitters not to leave their working area without first shutting them down, unless
'936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there is another knitter-either an alley partner or someone else-who can attend
to the machine of the one who must leave. But that does not mean that a knitter is
required to keep his eyes fastened to his machine at every moment . If it were other-
wise, a knitter would be disabled from performing some of his work tasks, as noted
above.
The Respondent does not have a published or posted rule about leaving machines
unattended , and never has had . But, though not formalized , the knitters have always
understood such to be a rule of their job, and foremen at times have so instructed
the employees under them . The rule is one of many unwritten but generally under-
stood conditions of employee behavior that add up when taken together to the propo-
sition that employees are expected to perform their jobs with efficiency and care.
No penalty for violation of the rule has ever been announced to employees . Nor has
the Respondent ever defined the rule with precision for the guidance of its knitters, so
.as to fix, for example , specific outer limits of the knitting machine area beyond which
a knitter may not wander . Knitters have always understood the rule to be, not an
inflexible one, but one of reason and common sense, depending upon what under
all the circumstances must be viewed as the exercise of prudent judgment . The dis-
tance the knitter was from his switch rod was undoubtedly most important in de-
Yermining what constituted prudent judgment in given circumstances , but other
factors also had to be taken into account , such as the length of time he was away,
his purpose for being away, the state of manufacture in which the stocking was
then in, and whether the knitter while away remained within sight or hearing of the
machine so as to know whether it was running smoothly or was likely to cause
-trouble. There is evidence indicating that supervision also did not understand the
rule to be an inflexible one. Thus, James Gordy, the knitting superintendent, and
Guy Childs , the second shift foreman , both admitted on cross-examination that the
rule had no exact definition , but involved also considerations of reason and sound
judgment , depending in part on the stage of manufacture and what the knitter was
,doing when he was not actually watching the machine . The Respondent 's witnesses
asserted , however , that in any event a knitter was required at all times to remain
within his "working area ." The working area, according to Jackson , included any
reasonable distance behind the knitter 's cabinet or around it. Both Jackson and
'Childs upon cross-examination admitted that if a knitter , such as Horton , were to take
2 steps to the right of his cabinet he would still be within his working area , but more
than 2 , they said , would carry him over . A distance of about 5 feet to the right, they
-testified , was all right , but 6 feet, 3 inches was too much . But they made no claim
that such precise boundaries were ever mentioned to Horton or other knitters. Nor
did they claim that employees were otherwise advised with any specificity as to what
-was or was not out of bounds under the rule.
Before Horton 's discharge , the Respondent had invoked the discharge penalty
against only one employee for violation of this rule. That employee, J. A. Pounds,
was fired in May 1952 after having been reprimanded some 6 weeks before for pre-
cisely the same offense . Pounds, whose work record was otherwise poor, had on
both occasions left his machine running unattended for several minutes while visit-
ing another knitter in an adjacent alley to pass the time of day. Pound 's conduct
could by no stretch of reasoning be regarded as falling within an allowable area
of prudent judgment. Clearly, as stated by his supervisor , it was "highly irresponsi-
ble." Apart from Pounds , a number of other employees on different occasions
had been reprimanded by their supervisors for leaving their machines running un-
attended while they left their alley. But the record does not disclose where they
went , or for what purpose , or how long they were gone. There is no basis for as-
suming that the conduct in which they engaged was not more serious than that for
which the Respondent chose to discharge Horton . The Respondent introduced evi-
dence to show that in 1944 a knitting machine was seriously smashed while its
operator was taking a drink of water at a fountain located 30 feet away from his
machine. It appears , however, that that employee was not discharged , though the
Respondent did use the smashup as an occasion to reemphasize to knitters the im-
portance of complying with the rule against leaving their machines unattended.
The Respondent concedes that the rule in question does not necessarily prohibit
an employee from taking a drink of water at a fountain close to his machine, though
his machine is in operation and unattended by another knitter. It contends, how-
ever, that Horton exceeded the bounds of prudent judgment in going as far as he
did and to a point from which he could not observe the front of his machine, even
ARCHER MILLS, INC. 937
momentarily . But, as has been found , above, a knitter is not required to keep his
machine within his direct vision at all times . Moreover , and more important, this
record is replete with credible evidence showing that supervision in the past had al-
lowed knitters whose machines were as close to water coolers as that of Horton's to
do exactly what Horton did, without indicating that such conduct was violative of
the rule.
Thus, Horton testified that what he did on occasion of his discharge represented
no departure from his customary practice while working on machine # 15, and
that no supervisor had criticized him before for going to the water cooler, though
they were in a position to see him do so. Howard White, a knitter on machine # 13,,
which is somewhat further removed from the same water cooler, testified that during
the 3 years he worked that machine , he constantly used the water cooler whenever
he had need to quench his thirst , and that he did so without first closing down his
machine even when no alley partner was present . Other knitters with machines in
the immediate vicinity of the water cooler, White further testified , followed the same
practice . Audrey Lipsey, who worked the third shift on machine # 16-in the
same alley as machine #15 but further removed from the water cooler-testified
that during the 6 or 9 months that he had worked alone in that alley he had always
felt free to go to the cooler for a drink without shutting off his machine; that he
never tried to hide it; and that he had never been reprimanded for it. Pat Kyle who
had operated machine #15 for 2 or 3 years , including 5 or 6 weeks without any
alley partner , testified that when he worked that machine he would leave it, without
first shutting it off as often as 2 to 3 times a set to get a drink at the same water
cooler; that his foreman , Jackson, was in a position to see him do so; and that Jackson
never indicated to him that such conduct was considered improper . Two other
employees, Eric Allen and Hugh Norton , stationed at machines # 19 and #20 to
which the nearest water cooler is across the main aisle , about 3 steps in back of their
cabinets and about 5 steps from the switch boxes of their machines, testified that
even when alone in their alley they would go, whenever they wanted a drink of water,
to the water cooler across the aisle without shutting off their machines , and that
Jackson never criticized them for this even though he observed them doing so.
Further, both Allen and Norton testified , without denial by Jackson , to specific
occasions when Jackson had stopped to chat with them at the fountain without so
much as calling their attention to the fact that their machines were running without
anyone in the alley-and this though they were facing away from their machines.9
W. M. Shaw , the Respondent 's personnel manager , testified that it was normal
plant procedure for a supervisor to consult him before discharging an employee, so
that he might first determine whether in the light of all relevant considerations, in-
cluding the employee's past record and his overall value to the Company, the em-
ployee should be kept or let go. As found above, however, Horton was summarily
discharged by his supervisor without review and without any consideration given to
his 23 years ' record with the Company as an admittedly competent and careful
knitter. Shaw explained that the usual review procedure did not apply to a situation
where an on-the-spot discharge was warranted by the nature of the offense . Leaving
a machine unattended in violation of the company rule was an offense falling within
that category , according to Shaw. But even so, as Shaw conceded-he did not regard
conduct such as Horton engaged in immediately before his discharge to be so extreme
as to warrant the penalty of discharge in the absence of a prior warning or reprimand.
The Respondent does not claim that Horton had ever been reprimanded or warned
before about the specific conduct for which he was discharged . But it does claim
that it had an established policy making discharge action automatic and mandatory
where an employee engaged in a second violation of the rule against leaving machines
unattended , regardless of the seriousness of the second offense. And to this it adds the
further claim that on one earlier occasion-on September 8, 1955, to be exact-Horton
had been reprimanded by Jackson for violating the rule, although in a different
manner.
The testimony the Respondent offered to support its claim of an established policy
calling for automatic discharge on a second offense impressed me as contrived.
That policy , the Respondent's witnesses would have it, was established in 1952, when,
9 Jackson , while testifying , did not advert to the testimony of Allen and Norton. Though
he testified generally that he never saw any knitter taking a drink of water while his ma-
chine was running, his testimony was unconvincing and is not credited.
'938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following Pound's discharge, management adopted it in order to strengthen compli-
ance with the rule, and notified its supervisors accordingly. But the same witnesses
-admitted that in the 3 years that elapsed between the alleged adoption of the
second offense policy and Horton's discharge management never advised its employees
of its new enforcement policy. According to the Respondent, Horton's was the first
case where that policy had to be applied. It is nonetheless significant that Jackson
said nothing to Horton about such a policy, either at the time he says he earlier repri-
manded Horton or,at the time of the discharge. It seems to me highly improbable
that the Respondent would have concealed such a policy, if in fact it had one, from
the employees it hoped to influence by it. And it seems to me even less likely, had
such a policy existed and Horton's offense been a second one, that Jackson would
have refrained from directing it to Horton's attention, if not on the occasion of the
first offense, at least on the occasion of the discharge; yet, Jackson conceded that
he did not.
As to whether Horton's discharge was preceded by an earlier reprimand, there is
a sharp conflict in the testimony. Foreman Jackson testified that he had occasion
to caution Horton about violating the rule against leaving machines unattended on
September 8, 1955-20 days before Horton's discharge, and about 4 days before
Horton by his own account joined the Union. On that occasion, according to
Jackson, Horton was away from the immediate vicinity of his machine for at least
a minute and a half, perhaps more. Jackson testified that he did not know where
Horton went because he could not see him. Jackson surmised, however, that
Horton must have gone to a tank used to store a solution knitters used in their work,
because, after he waited at Horton's unattended machine for about a minute and a
half, Horton returned with a jug of the solution. Jackson could not say how far
.from Horton's machine the tank was located, for he could not recall on what
machine Horton was working at the time; but he conceded that if it was the machine
at which Horton testified he was then working, the tank may have been as much
as 40 feet away from the knitter's cabinet. Horton denied any recollection of this
incident or of any reprimand with regard to the rule prior to the date of his discharge.
Horton, by his other testimony-in the main unchallenged-impressed me as a
candid and careful witness, and his denial of recollection of any such incident
seemed to me to carry conviction and to be sincere. Jackson's testimony on the
other hand left much to be desired. It was vague, uncertain, and as to some details
contradictory. He could not recall precisely what he said to Horton; on what machine
Horton was working at the time; whether Horton then had an alley partner; whether
the other machine in the alley was then working; or whether anyone else was present.
But Jackson's testimony is backed by an entry on Horton's page in a looseleaf repri-
mand book maintained by the Respondent. 10 It is true that there are certain
circumstances about this entry that make it somewhat suspect. Thus, as the exhibit
clearly shows, and as the Respondent's own witnesses admitted, the date 9-8-55,
as well as the initials which follow it, appears to be written with a sharper and
softer pencil than the body of the entry. Moreover, the content of that entry, read
together with what follows in the next entry, reads as if it may be an account of but
.a single incident. All this may suggest that the date, 9-8-55, was later inserted
so as to make it appear that there was an earlier reprimand though in fact there was
not, notwithstanding Jackson's insistence to the contrary. But on the evidence before
10 The page which is supposed to list all reprimands given Horton contains four entries.
The first is dated December 8, 1949, and concerns a criticism directed against Horton con-
cerning a work practice wholly unrelated to the issues of this case. The last, dated Sep-
tember 29, 1955, and initialed by General Foreman Gordy, refers to a denial of a reinstate-
ment request made by Horton on the day after he was discharged. The middle two entries,
both in Jackson's handwriting and carrying his initials, read as follows :
Spoke to John about leaving machine unattended. 9-8-55 H. J.
I told John that he and everybody else knew that walking off and leaving his ma-
chine was against the rules and that we was not going to tolerate it, and for him to
check out. He said my joining the union didn't have anything to do with it did it, I
told him that his walking off and leaving his machine running was the only cause of
his discharge and nothing else had any bearing on it. 9-28-55 H. J.
ARCHER MILLS, INC. 939
me I am, nevertheless , not prepared to say that the entry was falsified , or to reject
Jackson 's testimony which the entry documents . At the same time, however, I do
not think that Horton 's testimony as to the absence of any recollection of such an
incident is necessarily to be discredited . For the reasons indicated in the marginal
note, it is entirely possible that , though it did occur, he may have forgotten about it."
Contrary to the Respondent 's contention , however, the fact that Horton was
reprimanded on September 8 does not establish that he was fired for cause on
September 28. The Respondent 's assertion that it had a fixed policy making discharge
automatic for a second violation of the rule has already been discredited. And,
even if it had not been , it would not follow that Horton's discharge represented an
application of that policy , unless it were also believed that the Respondent normally
would have viewed Horton's conduct on September 28 as constituting an independent
violation of the rule, so as to make it in fact a second offense . But, as has been
found above, the Respondent had never before interpreted its rule as applying to the
specific conduct for which Horton was allegedly discharged . Indeed, Horton had
every reason to believe that the Respondent interpreted its rule as permitting such
conduct . For, as the record convincingly shows, knitters stationed at machines as
close to water coolers as that of Horton had habitually used the water coolers
precisely as Horton did , and they had been allowed to do so without criticism or
reprimand from supervision . The reprimand of September 8 proves only that
Horton was on notice generally of the Respondent 's rule against leaving machines
unattended . But that adds little to the Respondent 's case, for Horton did not dis-
claim knowledge of that rule . It does not prove, however, that Horton was thereby
put on notice that his momentary visit to the water cooler , scarcely more than 2
steps removed from his knitting cabinet, would thereafter also be viewed as a
transgression of the rule , contrary to past custom . Clearly, the conduct for which
Jackson says he reprimanded Horton on September 8 was far different from his
conduct on September 28. Knitters had always understood that it was imprudent
and a violation of the rule for them to go as far as 40 feet from their machines,
or to leave the machine unattended for as long as a minute and a half. They
had no reason to believe that the Company would consider it a violation, every
reason to believe it would not , for them to pause 10 seconds for a drink of water
from a fountain located immediately adjacent to their working area, as Horton
did in this case.
On all the evidence , I find it impossible to believe that the Respondent normally,
and absent some other reason , would have summarily discharged a knitter for doing
what Horton did without at least first notifying him that, although such conduct had
been tolerated in the past , it would no longer-and particularly so where the knitter
had Horton 's record of proved competence extending over a period of 23 years.
Nor do I think that the Respondent 's sudden decision to enforce the rule against
Horton in a manner more strict than it had ever been enforced before is lawfully
explainable on the ground indicated by the Respondent , that management found it
necessary at that time to tighten up on plant discipline , and for that reason watched
its employees more closely to insure strict adherence to plant rules . If the Re-
spondent's purpose was to achieve greater discipline by revising standards of behavior
theretofore tacitly approved , it seems to me that it would have first notified its
employees of what it would expect of them in the future . The fact that the subject
of tightening plant discipline was brought up at the supervisors ' meetings called
to discuss means of resisting union organization , along with Gordy's explanation
reflecting management 's belief that union supporters were most in need of greater
n Jackson admitted that he did not inform Horton on September 8 that he was giving him
an official reprimand . According to Jackson , a reprimand might take the form of a gentle
reminder of what was expected of an employee , or of a vigorous criticism accompanied by a
clear indication that any recurrence would not be tolerated . If a reprimand took the latter
form, Jackson admitted , it would be reflected by the entry made by him in the reprimand
book . The form of the September 8 entry suggests that Jackson did no more than remind
Horton of the rule , without building up the incident as a matter of serious consequence.
Though Jackson 's testimony is contradictory in this respect , certain portions of it appears
to confirm the correctness of such a conclusion.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discipline , provides , I think , the clue to the Respondent 's real motivation. When
the clear inadequacy of the . Respondent 's explanation is coupled with other con-
siderations in this case-notably, the Respondent 's opposition to union organization,
the outstanding role played by Horton in such organization , and the timing of the
discharge in relation thereto-I think the inference is unavoidable that the Re-
spondent 's decision to discharge Horton was rooted in its resentment of his union
activity and in a desire forcefully to bring home to other employees a lesson, such
as that expressed by Foreman Horace Jackson to employee John Jackson, that a
union could no nothing for them but "get [them ] fired and run off the job."
Upon the record as a whole, I reject as but a pretext the reason assigned by the
Respondent for Horton 's discharge ; conclude that the Respondent 's underlying moti-
vation for the discharge was Horton 's union activity and leadership ; further conclude
that but for such activities he would not have been discharged ; and find that by
discharging Horton on September 28, 1955, and thereafter refusing to reinstate him,
the Respondent discriminated with regard to his hire and tenure of employment,
thereby discouraging membership in the Union , and interfering with, restraining,
and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that the Respondent be ordered to cease and desist therefrom,
and take certain affirmative action in order to effectuate the policies of the Act.
Having found that the Respondent discriminated with regard to the hire and
tenure of employment of John E. Horton, I shall recommend that the Respondent
offer him immediate and full reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights and privileges, and make
him whole for any loss of pay suffered as a result of the discrimination against him,
by payment to him of a sum of money equal to the amount he would have earned
from the date of his discriminatory discharge to the date of the offer of reinstate-
ment less net earnings to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in
any one particular quarter shall have no effect upon the back-pay liability for any
other such period. It will also be recommended that the Respondent preserve and
make available to the Board upon request, payroll and other records to facilitate the
checking of back pay due.
As the unfair labor practices committed by the Respondent were of a character
striking at the roots of employee rights safeguarded by the Act, it will also be
recommended that the Respondent cease and desist from infringing in any manner
upon the employee rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. American Federation of Hosiery Workers, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of John E.
Horton, thereby discouraging membership in the Union, the Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
L
La I
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in American Federation of Hosiery
Workers, AFL-CIO, or any other labor organization, by discriminating in regard
to the hire or tenure of employment or any term or condition of employment of
any of our employees.
WE WILL NOT in any other manner, interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor or-
ganizations, to join the aforesaid labor organization, or any other labor organi-
zation, 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,
except to the extent that such right may be affected by an agreement requiring,
membership in a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer John E. Horton immediate and full reinstatement to his
former or a substantially similar position without prejudice to his seniority and
other rights and privileges and make him whole for any loss of pay suffered as
a result of the discrimination against him.
All our employees are free to become, remain, or refrain from becoming or re-
maining members of any labor organization, except as that right may be affected by
an agreement requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8 (a) (3) of the Act. We will not discriminate
in regard to the hire or tenure of employment or any term or condition of employ-
ment against any employee because of membership in or activity on behalf of any
labor organization.
ARCHER MILLS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Firestone Tire and Rubber Company (Muskegon Firestone Auto
Supply and Service Stores , Incorporated , a Subsidiary) I and
Teamsters Local 527, affiliated with the International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers,
of America, AFL-CIO, Petitioner . Case No. 7-RC-3394. Au-
gust 1, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under.Section 9 (c) of the National Labor
Relations Act, a hearing was held before Iris H. Meyer, hearing officer.
The hearing officer's rulings made at the hearing are free from prej -
udicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
1 The name of the Employer appears as amended at the hearing.
118 NLRB No. 118.