Carolina American Textiles, Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1975

219 N.L.R.B. 457 (N.L.R.B. 1975)

CAROLINA AMERICAN TEXTILES, INC.
Carolina American Textiles , Inc. and Textile Workers
Union of America, AFL-CIO, CLC. Cases 11-
CA-5485, 11-CA-5666, and I 1-CA-5707
July 24, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On January 29, 1975, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, except
as modified below.
We find, in agreement with the Administrative
Law Judge, that Respondent violated Section 8(a)(1)
by Supervisor Fowler's asking employee Shelf why
she wore a union button and informing her of the
source from which she obtained the button. We do
not, however, agree with the Administrative Law
Judge that this is a case wherein the single violation
found is not sufficiently serious to warrant issuance
of a remedial order. See, e .g., Texberry Container
Corporation, 217 NLRB No. 18 (1975), and Mike Ve-
lys, et al. d/b/a R & M Electric Supply Co., 200
NLRB 603 (1972). We regard as a serious violation
of the Act the Respondent's conduct described above
and view it as an attempt to restrain its employees
from exercising rights guaranteed by Section 7 of the
Act. Accordingly, we find that it will effectuate the
purpose of the Act to issue , as provided below, our
usual remedial order for the violations found.
AMENDED CONCLUSIONS OF LAW 2
Substitute the following Conclusion of Law 3 for
that of the Administrative Law Judge:
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 ( 1950), enfd. 188 F.2d 362 (C.A. 3, 1951 ). We have carefully
examined the record and find no basis for reversing his findings.
457
"3. By asking an employee why she wore a union
button and informing her of the source from which
she obtained the button, the Respondent has en-
gaged in unfair labor practices as defined in Section
8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that Respondent , Caroli-
na American Textiles , Inc., Greensboro , North Caro-
lina, its officers , agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union and/or protected activities or giving em-
ployees the impression that such activities are under
surveillance.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is
found necessary to effectuate the purposes of the
Act:
(a) Post at its Greensboro , North Carolina, plant
copies of the attached notice marked "Appendix." 3
Copies of said notice , on forms provided by the Re-
gional Director for Region 11, after being duly
signed by Respondent 's representative , shall be post-
ed by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places , including all places where no-
tices to employees are customarily posted . Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered , defaced , or covered
by any other material.
(b) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that all allegations of the
complaint which charge Respondent with unfair la-
2 Chairman Murphy agrees with the conclusion of the Administrative
Law Judge that the single isolated violation of Sec. 8(a)(l) of the Act which
the General Counsel proved in this case does not warrant the issuance of a
remedial order under the facts in this case Cf. American Federation of Musi-
cians, Local 76, AFL-CIO (Jimmy Wakely Show), 202 NLRB 620
3In the event that this Order is enforced by a Judgment - of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bor practices other than those found herein be, and
the same hereby are, dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our em-
ployees concerning their union and/or protected
activities or give our employees the impression
that such activities are under surveillance.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organiza-
tion, to form labor organizations, to bargain col-
lectively through representatives of their own
choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection.
CAROLINA AMERICAN TEXTILES, INC.
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge:
These consolidated cases came to be heard before me at
Greensboro, North Carolina, on July 24, 1974, upon com-
plaints I issued by the General Counsel of the National
Labor Relations Board and answers filed by Carolina
American Textiles, Inc., hereinafter sometimes called the
Respondent. The issues raised by the pleadings in these
consolidated proceedings relate to whether or not the Re-
spondent violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act, as amended, by acts and con-
duct hereinafter specified. A brief has been received from
the General Counsel and a memorandum of points Lnd
authorities has been received from the Respondent.
Upon the entire record in these proceedings, and from
my observation of the testimony and demeanor of the wit-
nesses, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The consolidated complaints allege , the answer admits,
and I find that the Respondent, a North Carolina corpora-
1 The complaint in Case I I -CA-5485 was issued on March 7, 1974. upon
a charge filed on September 21, 1973, as amended on September 26, 1973,
and copses of the charge and amended charge were served on the Respon-
dent on the same dates . The charges in Cases I I-CA-5666 and I I-CA-5707
were filed on March 6 and April 11 , 1974, respectively, served on the Re-
spondent on the same dates , and on June 28, 1974, the Regional Director
issued and caused to be served on the parties an order consolidating cases,
amended complaint , and notice of hearing
tion, is engaged in the manufacture of textured yarn at its
Greensboro, North Carolina, plant and in the 12-month
period preceding June 28, 1974, the Respondent sold and
received goods and materials to and from places situated
outside the State of North Carolina, in amounts valued,
respectively, in excess of $50,000. As the parties concede, I
find that the Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The consolidated complaint also alleges , the answer ad-
mits , and I find that the Textile Workers Union of Ameri-
ca, AFL-CIO, CLC, hereinafter called the Union, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
111. THE UNFAIR LABOR PRACTICES ALLEGED
The consolidated complaints allege that the Respondent
violated Section 8(a)(1) of the Act by creating the impres-
sion of surveillance and by two separate instances of inter-
rogation. The General Counsel also alleges that the Re-
spondent violated Section 8(a)(3) of the Act by
reprimanding an employee because of her union and con-
certed activities. In addition, the General Counsel alleges
that the Respondent refused to bargain in good faith with
the Union by (1) unilaterally implementing work atten-
dance policies; (2) discharging employees pursuant to the
unilaterally established attendance policies; (3) withdraw-
ing recognition and refusing to meet and bargain with the
Union; and (4) unilaterally and without consultation with
the Union changing wages , hours, and other conditions of
employment of its employees in the bargaining unit. The
Respondent filed answers to both the initial and amended
complaints, and denies that it has engaged in any unfair
labor practices.
A. Background
On October 11, 1972, the Union was certified by the
Board as the sole and exclusive bargaining representative
of the Respondent's employees in the following described
unit:
All employees employed by the Respondent at its
Greensboro, North Carolina, plant, including all pro-
duction and maintenance employees of the American
Textured Yarn, Inc., Carolina American Dying and
Carolina American Knitting Divisions, excluding all
employees of the Employer's Patrician Fabrics Divi-
sion, office clerical employees, professional employ-
ees, guards, salaried employees and supervisors as de-
fined in the Act.
Sometime after the certification, as the General Counsel
concedes, the several divisions of the Respondent named in
the certification ceased to exist, so that the bargaining unit
came to consist of all employees of Carolina American
Textiles, Inc., with the exclusions named in the certifica-
tion. I find, accordingly, that the unit described above, lim-
CAROLINA AMERICAN TEXTILES, INC. 459
ited to Carolina American Textiles, Inc., was the unit ap-
propriate for the purposes of collective bargaining at all
times relevant to these cases.
The Union and the Respondent met for their first bar-
gaining session on December 1, 1972, and this was fol-
lowed by 16 subsequent sessions , the last of which was held
on January 14, 1974. No final written bargaining agree-
ment was arrived at as a result of the negotiations, but on
September 10, 1973, the Union and the Respondent did
agree to a wage proposal and certain other terms and con-
ditions of employment, and after approval of the proposals
by the employees, the Union consented to permit the Re-
spondent to put them into effect.
About March 1, 1974, the Respondent received a peti-
tion signed by approximately 67 percent of the 452 em-
ployees then in the bargaining unit , advising Carolina
American Textiles that the employees no longer wished to
be represented by the Union. On March 4, 1974, after veri-
fying the signatures on the petition , the Respondent 's presi-
dent, J. Pleas McMichael, informed the Union of the
Company's belief of the Union's loss of majority status,
and withdrew recognition. The Union replied on March 5,
insisting on its continued majority status , and in a second
letter on March 20, 1974, the Union protested the
Respondent 's implementation of improvements in wages
and other terms and conditions of employment . Neither
the employees , nor either party, filed a representation peti-
tion to determine the question of majority status, but on
March 6 and 11, 1974, the Union filed additional charges
alleging violations of Section 8(a)(3) and (5) of the Act.
B. The Alleged Unilateral Changes in the Respondent's
Work Attendance Policies
There is no allegation in these proceedings that the Re-
spondent or its agents , planned, fomented , encouraged, or
otherwise participated in the petition by which the employ-
ees announced their desire to withdraw from the Union.
The General Counsel contends , however , that the
Respondent's unilateral changes in its work attendance
policies , which were implemented in March and September
1973, coupled with the discharge of employees pursuant to
the new policies and three incidents of 8(a)(1) conduct
caused the Union's loss of majority . Accordingly , the Gen-
eral Counsel further contends that both the Respondent's
withdrawal of recognition , and its subsequent conduct in
changing wages and working conditions are also violative
of Section 8(a)(5) of the Act. For reasons related below, I
find that the General Counsel has not sustained the burden
of proof that the Respondent unilaterally promulgated and
implemented changes in its work attendance policy, and I
further find that neither the Respondent's withdrawal of
recognition , nor its subsequent changes in terms and con-
ditions of employment are tainted by unlawful conduct.
The General Counsel presented two principal witnesses
in support of the refusals to bargain alleged in the consoli-
dated complaints. Virginia Keyser , an international repre-
sentative of the Union, participated in 15 of 17 bargaining
sessions with the Respondent , and she also had the respon-
sibility for processing grievances filed by employees in the
bargaining unit . Julius Fry, also an international represen-
tative, participated in all but one of the bargaining sessions
with the Respondent. According to Fry's testimony, he
delegated to Keyser the responsibility for handling griev-
ances, but Keyser had no authority insofar as the negotia-
tions were concerned, and she lacked authority to bind the
Union on any proposal offered by the Respondent.
Keyser testified that on June 15, 1973, after the dis-
charge of Robin Britt , she wrote a letter to the
Respondent's vice president, Arthur Moffitt, protesting the
discharge as discriminatory, and requesting a description
of the Company's attendance policy pursuant to which
Britt was terminated. Moffitt replied to the letter on June
30, by informing Keyser that Britt had been discharged
because she was tardy reporting to work for a total of five
times in 8 weeks. Moffitt also informed Keyser that the
Company's policy was to discharge any employee who was
tardy four times in a period of 8 weeks.
Keyser also testified that on July 24, 1973, she attended
a grievance meeting concerning the discharge of Britt and
three other employees who had been terminated for tardi-
ness or absenteeism under the Respondent 's attendance
policy. According to Keyser, Moffitt explained the atten-
dance policy, and at Keyser's request provided a copy of
the policy dated March 28, 1973, effective April 1, 1973. As
Keyser testified, she had never previously seen a copy of
the attendance policy, and she had never agreed to the
policy . Keyser recalled that she saw some signatures on the
copy shown by Moffitt, and she also testified that on Au-
gust 2, 1973, the Respondent sent her a copy of the policy,
but this copy differed in some respects from the copy pro-
duced by Moffitt at the July 24 grievance meeting.
Keyser also attended a negotiations session with the Re-
spondent on September 10, 1973, but her testimony con-
tains no mention of any discussion of a proposal made by
the Respondent to further modify its attendance policy.
Keyser testified that after the conclusion of the meeting she
was called into the office and the Respondent's attorney,
Thomas Bradley, handed her a copy of a policy, which
Keyser recalled contained some additional provisions with
respect to critical illness and family deaths.
Keyser admitted in her direct testimony that she also
attended an earlier grievance meeting on March 29, 1973,
at which the Respondent's attendance policy was dis-
cussed. Keyser's testimony reflects that she was told by
Moffitt that the Company had an attendance policy which
had not been used, and that the Company intended to
modify the old policy by doing away with the necessity for
doctor's excuses , canceling all prior warnings except those
pertaining to quality , and providing for discharge in the
event of three unexcused absences in 12 months . Moffitt
did not show Keyser a copy of the policy, and did not
comply with her request for a copy.
The sum of Keyser's testimony on examination is that
neither she nor the Union had any knowledge of the
Respondent's policy requiring discharge in the event of ab-
sence or tardiness to the extent of four incidents within an
8-week period , until after the discharge of Robin Britt.
Keyser was unable to recall many of the pertinent details
of the meetings with the Respondent on March 29 , July 24,
and September 10, 1973 , but she was adamant in her insis-
tence that the Union was never given any notice or oppor-
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tunity to bargain with respect to the Respondent's revised
attendance policy, and that the Union became aware of the
revisions only after they had been implemented and en-
forced by the Company.
As corroboration for Keyser's testimony, the General
Counsel called employees Robin Britt, Jo Ann Ryals, and
Gwendolyn McDougal. Ryals, who was discharged under
the attendance policy on July 9, 1973, attended the griev-
ance meeting on July 24, 1973, and admitted in her testi-
mony that a copy of the Respondent's attendance policy
was passed around to the Union 's participants . Ryals also
testified that she had seen and signed the policy in late
May or early June 1973, but denied that the attendance
policy was posted in the plant.
Robin Britt was discharged on June 11, 1973, for the
same reason as Ryals. Britt attended the March 29 griev-
ance meeting, and she recalled that either Moffitt , or Com-
pany President McMichael, explained an attendance poli-
cy which allowed three unexcused absences in a 12-month
period. Britt admitted that she was aware of an attendance
policy requiring discharge for tardiness to the extent of
four incidents in an 8-week period, but she was not ques-
tioned as to when, where, or how she became aware of the
policy. Britt also attended the July 24 grievance meeting,
and recalled the the Company's attendance policy was ex-
plained, but was unable to recall whether Keyser received a
copy of the policy as she requested.
McDougal also testified to attending a meeting in March
1973, which in this testimony was characterized as a nego-
tiations meeting, but she was unable to recall any discus-
sion at that meeting concerning the Company's attendance
policy . McDougal admitted awareness of a company atten-
dance policy and testified that she was informed of the
policy in February 1973.
Julius Fry's testimony in these proceedings was limited
largely to the negotiations meeting held on September 10,
1973, and its aftermath. Fry admitted that the Company
made some proposals at this meeting concerning wages
and other terms of employment, but that there was no pro-
posal and no discussion concerning an attendance policy.
Fry also denied that he was aware that Keyser was given a
copy of a proposed attendance policy at the conclusion of
the meeting , and also denied that he was ever made aware
of a prior attendance policy which the Respondent imple-
mented on April 1, 1973. Fry did concede that the Compa-
ny made some written proposals on September 10, and that
after approval by the employees he authorized the Respon-
dent to put the proposals into effect. According to Fry,
however, the package agreed to never include any provi-
sion on work attendance , and the issue of an attendance
policy was never proposed by the Respondent, and was
never the subject of negotiations.
Fry also testified about Keyser's supposed lack of au-
thority to negotiate on behalf of the Union. Notwithstand-
ing her status as an international representative and her
participation in 15 of 17 bargaining sessions, Fry testified
that Keyser had no authority to negotiate with the Respon-
dent, no authority to accept any proposal from the Re-
spondent , and simply served as Fry's assistant in negotia-
tions. Fry agreed that he never specifically informed the
Respondent of Keyser's lack of authority, but insisted that
the Company was on notice because he informed Bradley
at the outset of negotiations , that he was in charge of nego-
tiating an agreement. Fry did admit that he vested Keyser
with authority to handle grievances with the Respondent.
Except where their testimony is corroborated by other
witnesses or documentary evidence, I reject the testimony
of Keyser and Fry as it pertains to the alleged refusal to
bargain by the Respondent. Fry's testimony was equivocal,
contradictory, and contrary to the testimony of one of the
members of his own bargaining committee. Keyser's testi-
mony was worse, and compared with evidence in the whole
of the record I can only conclude that Keyser either suf-
fered from an almost total inability to recall pertinent
events, or she was purposefully withholding the truth.
Keyser's testimony was replete with instances of supposed
inability to recall even the most important segments of her
meetings with the Respondent's representatives. Keyser ad-
mittedly had notes from her meetings with the Respondent,
and her failure to avail herself of this documentation of
past recollection recorded is a further reflection on the cre-
dence to be accorded to her testimony.
I similarly reject the testimony of Ryals, Britt, and Mc-
Dougal as their testimony pertains to the alleged unilateral
changes in the Respondent 's attendance policy. None of
the three witnesses was able to recall with any degree of
specificity the contents of the March 29 and July 24 meet-
ings , but to the extent they did testify, the testimony is
inconclusive and contradictory. Ryals' testimony that she
saw and signed the revised attendance policy in May or
June 1973 is contrary to the documentary evidence and the
testimony of other credited witnesses in these proceedings,
and McDougal's testimony that she saw the policy in Feb-
ruary 1973 is susceptible on the same reasoning . In the case
of Britt, the General Counsel established that Britt was
aware of the revised attendance policy, but he studiously
avoided questioning the witness as to when or under what
circumstances the modified policy came to her attention.
The credence to be accorded the testimony of Britt and
McDougal is suspect from still another vantage point. Both
employees were members of the Union 's negotiating com-
mittee and presumably participated in the September 10,
1973, negotiating session with the Respondent. The Gener-
al Counsel abstained from questioning either employee
about her attendance at the September 10 meeting, and, if
she attended, substantiating her recollection of what tran-
spired. The General Counsel also called employee Barbara
Shelf as a witness , and, although Shelf was a member of the
Union's negotiating committee , the General Counsel made
no attempt to establish whether or not Shelf attended the
September 10 negotiations session , and, if so , what she re-
called of the pertinent events which transpired at that
meeting.
Insofar as the refusal -to-bargain allegations are con-
cerned, particularly the alleged unilateral changes made by
the Respondent in its work attendance policy, I credit the
testimony of employee Sue Haislip, as it corroborates the
testimony of the Respondent's officials who participated in
the several crucial meetings with the Union. Haislip was
one of the members of the Union's negotiating committee,
CAROLINA AMERICAN TEXTILES, INC.
and she participated in both negotiations sessions and
grievance meetings during the period from December 1972
through mid-September 1973.
Haislip was present at the grievance meeting on March
29, 1973 , which was attended by Keyser and by Moffitt
and other company representatives . There was a discussion
at this grievance meeting about the Respondent 's atten-
dance policy , and Moffitt explained that the Company
wanted to revise its existing policy to make it more lenient
by providing for termination when an employee was tardy
or absent four times in an 8-week period . Moffitt also ex-
plained that the Respondent wanted to destroy all repri-
mands except those pertaining to quality , and to remove
the necessity for a doctor 's certificate except in cases of
extended absence for illness . Moffitt expressed the
Company 's desire to put the revised policy into effect on
April 1 , 1973, and Keyser replied to the proposal , "That's
good , it's the best thing you have ever done ." Keyser made
no request for additional information or discussion on the
proposal , but after the meeting she told Haislip that she
thought the revised policy was the best thing the Company
had ever done , as it would benefit employees who were
absent for illness or other reasons.
Haislip also testified , and her testimony is corroborated
by other witnesses , that following the March 29 meeting
the Respondent 's supervisors called meetings of the em-
ployees to explain the policy , the employees signed the pol-
icy to acknowledge their understanding , and the policy was
thereafter posted on the Company 's bulletin boards. In re-
sponse to the Union 's request to notify the Union of all
notices posted by the Respondent , Haislip reported the
posting to Keyser.
In her capacity as a committeewoman , Haislip also at-
tended the grievance meeting on July 24, 1973, which con-
cerned the discharge of Britt and other employees who
were terminated for tardiness or absenteeism . Although the
union representatives agreed that the attendance policy
had previously been explained , a further explanation was
requested . McMichael , the Company's president, diagram-
med the policy on the blackboard, explained how the poli-
cy worked , and also explained how employees could work
off past infractions.
Haislip was also present at the September 10, 1973, bar-
gaining session , and testified to the Respondent's proposals
on wages and other terms of employment, including revi-
sions to the Company's attendance policy. On the latter
proposal the Respondent explained that the Company
wanted to further modify the attendance policy to make
minor revisions in language . Written copies of the pro-
posed revisions were distributed to the Union's representa-
tives at the September 10 meeting, along with copies of the
Company's proposals on a wage package and other issues.
According to Haislip , the Company 's proposals of Septem-
ber 10 were discussed with the employees in the bargaining
unit and became effeective 2 weeks later.
Moffit's testimony concerning the March 29 grievance
meeting with the Union conforms in all pertinent respects
to the version recounted by Haislip. Similarly , Moffitt's
testimony , as well as McMichael 's, conforms to Haislip's
recount of what transpired at the July 24 grievance meet-
ing, including McMichael 's explanation of how the atten-
461
dance policy worked , with the use of a blackboard dia-
gram.
Both Moffitt and McMichael testified concerning the
September 10 negotiating session , and their testimony was
mutually corroborative , as well as it was corroborative of
Haislip 's testimony . I find that the Respondent made a
written wage proposal , and other written proposals , includ-
ing a modification to the attendance policy which had be-
come effective April 1 , 1973. The Respondent 's representa-
tives explained that the modifications included (1)
permission for four rather than three absences in a 12-
month period , exculpatory language to cover extreme ill-
nesses and family deaths , and a revision of the discharge
provision from the mandatory "will" to the permissive
"may." The Union , through Fry, objected to one of the
Company's proposals concerning a contingency for double
time for Sunday work , and the Respondent withdrew that
proposal . At the conclusion of the meeting Fry agreed that
he would submit the proposals on wages and other terms to
the employees , and would thereafter communicate with the
Respondent as to whether the proposed changes could be
implemented by the Company pending agreement on a
complete contract . Although the record reflects some con-
flict as to whether Fry contacted McMichael or Attorney
Bradley , I find on the basis of Fry 's testimony that he did
submit the Respondent's proposals to the employees for
approval, and on September 17, 1973, advised the Respon-
dent of the Union 's approval and gave the Union 's permis-
sion to put these agreements into effect . Contrary to Fry's
testimony , I further find that the agreement included the
Respondent's proposal on modifications to its work atten-
dance policy.
In summary, I find and conclude upon the whole of the
credited evidence in this record , that in response to the
Union's inquiries , the Respondent proposed modifications
on March 29 , 1973, to its existing attendance policy, and
with the Union's agreement the new policy became effec-
tive April 1, 1973. On this finding I reject the General
Counsel's contention that Keyser lacked authority to ap-
prove the Respondent 's March 29 proposal on its atten-
dance policy. Keyser was vested with authority to process
employee grievances, and the grievance session of March
29 provided the framework for the Respondent 's proposal
and the Union's acceptance of the modified attendance
policy . I also find , in the light of the agency provisions of
Section 2( 13) of the Act , that Fry's statement to the Re-
spondent at the outset of negotiations to the effect that Fry
had primary responsibility for bargaining an agreement
was not a sufficient notice to the Respondent of Keyser's
alleged lack of authority to entertain contract proposals
and agree to them on behalf of the Union.
The findings of the Union 's agreement to the
Respondent's proposed modification to its attendance poli-
cy of March 29, 1973, are amply supported through the
credited testimony of Haislip , Moffitt, and McMichael, as
they are supported by other evidence in the record. In the
several bargaining sessions between the parties in the peri-
od from April 1 to September 10, 1973, no representative
from the Union ever raised the issue of the attendance
policy or sought to propose or bargain any modification.
The Union 's silence in this respect is the more persuasive
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because all during this period it had entertained grievances
from employees who had been discharged under the terms
of the April 1 modifications to the attendance policy. At
the September 10 negotiations meeting , no representative
of the Union voiced any objection to the Respondent's
proposal to further modify the attendance policy, and the
Union raised no question concerning the April 1 modifica-
tions which were appended to the Respondent's September
10 work attendance proposal. Further, Robin Britt was dis-
charged on June 11, 1973, in accordance with the modified
work attendance policy of April 1. Although this policy
was explained to the Union in Moffitt's letter of June 30,
thoroughly reviewed at the July 24 grievance meeting, and
included in the discussions at the September 10 bargaining
session, it was not until September 17, 1973, that the Union
filed a charge alleging that Britt's discharge was a violation
of Section 8(a)(3) and (5) because the work attendance pol-
icy had been unilaterally established and implemented by
the Respondent. Accordingly, I find and conclude that the
modifications to the Respondent's attendance policy which
became effective April 1 and September 24, 1973, were
agreed to by the Union, and were not unilateral changes in
violation of Section 8(a)(5) of the Act.
Inasmuch as I have found that the changes to the
Respondent's work attendance policy were not violative of
the Act, I further find and conclude that the discharges
which were effectuated in accordance with the policy, and
which are not alleged or proved to have been unlawful in
any other respect , did not violate any provision of the Act.
C. The Alleged 8(a)(1) Conduct
Employee Ronda Freeland was discharged by the Re-
spondent on January 31, 1974, for violation of the work
attendance policy. The issue of Freeland's discharge has
been disposed of above, but the General Counsel contends
that Freeland was unlawfully interrogated by her supervi-
sor, Phil Joyce.
Freeland testified that during the week of January 20,
1974, Joyce walked up to her while she was counting ends,
and asked what she was doing. Some conversation fol-
lowed, with a scatological insertion by Freeland, and the
conversationalists agreed that the end count was an unnec-
essary function. Joyce then asked, " Between me and you,
do you believe in the Union?" Freeland replied that she
was 100 percent for the Union, and Joyce suggested that it
was breaktime. Joyce testified in these proceedings and
categorically denied that he had asked Freeland about her
belief in the Union.
Barbara Shelf, an employee and member of the Union's
negotiating committee, testified that she wore a union but-
ton in the plant for some time prior to January 1974. Shelf
testified that on a Saturday in January she became ill and
asked Supervisor Bill Fowler if she could go home. Accord-
ing to Shelf, Fowler pointed to the union button and asked,
"What are you doing with that thing on?" Fowler then
pointed to several locations and said, "Why don't you put
one here, there and all over your clothes, you would look
pretty cute with that on." Fowler added that he knew Shelf
had obtained the button from Caesar Kemlock, and he
then asked Shelf if she was ready to go home.
Fowler was not called to testify in these proceedings,
and Shelf's testimony is unrefuted, except to the extent that
the Respondent proffered testimony that on February 5,
1974, the Union processed a grievance over an alleged sim-
ilar harassment of employee Debbie Carter by Supervisor
Wayne Joyce-but the Respondent was never informed of
the Fowler-Shelf incident and no grievance was filed.
The General Counsel alleges that employee Gwendolyn
McDougal was reprimanded by the Respondent because of
her union and concerted activities. McDougal, a union
member and a member of the negotiating committee, testi-
fied that on February 11, 1974, she was called into her
supervisor's office and told by Production Manager Tom
Bokoski that he had several complaints that McDougal
was harassing people on company time to join the Union.
McDougal denied the allegation and asked who was accus-
ing her, but Bokoski refused to name the complaining indi-
viduals. Bokoski also told McDougal that he wasn't accus-
ing her , but only warning her.
Three days later McDougal was called to McMichael's
office and in the presence of Bokoski and Moffitt, Mc-
Michael told McDougal that he would not have required
Bokoski to warn her unless he had signed affidavits that
she had been harassing people about the Union on compa-
ny time. McDougal again denied the accusation.
On cross-examination McDougal admitted that she was
aware of the company policy against soliciting on company
time. McDougal also admitted that she was not given a
written reprimand, but only warned to stop violating the
company rule and return to work. The record reflects that
McDougal was later promoted and given a pay increase.
It appears from the record that McDougal complained
to the Union about Bokoski's warning, and this complaint
was transmitted by Keyser to the Respondent, and in turn
triggered McMichael's meeting with McDougal on Febru-
ary 14. McMichael admitted that he did meet with Mc-
Dougal on that date, told her that he had reports that she
had been soliciting on company time, that this conduct
could jeopardize her job, and asked her please not to con-
tinue the practice. After the meeting McMichael sent a let-
ter to Keyser, assuring that there had been no harassment
of McDougal, and also assuring Keyser that McDougal
had been called in and given an explanation. The record is
clear that there was no further mention of the matter, and
no warning, reprimand, or other record was placed in Mc-
Dougal's personnel file. I cannot find on this evidence that
McDougal was reprimanded by the Respondent for her
union or concerted activities. On the basis of a written
complaint from an employee, the Respondent simply
called McDougal in, informed her of the report and the
Company's policy against soliciting during worktime, and
politely asked her to desist from this conduct if, in fact, she
was engaging in the practice. Both McDougal and the
Union were provided with complete information concern-
ing the reasons for warnings by Bokoski and McMichael,
and neither the Union nor McDougal raised the matter
again until April 11, 1974, when the charge in Case 1I-
CA-5707 was filed, alleging that McDougal had been dis-
criminated against in violation of Section 8(a)(3) of the
Act.
CAROLINA AMERICAN TEXTILES, INC. 463
The General Counsel does not attack the Respondent's
no-solicitation policy, which I find is valid on its face,' but
contends that the Respondent has not proved that Mc-
Dougal's alleged solicitation actually interfered with an-
other emplo ee's work. The General Counsel's reliance on
Daylin, Inc. ^ in support of this proposition is clearly mis-
placed. The no-solicitation rule in Daylin was invalid on its
face, and even its lawful portions had been enforced by the
employer only to the extent of prohibiting solicitation for
reasons related to union activities. The General Counsel's
argument also misses the point in another respect. The is-
sue here is not whether McDougal actually violated the
no-solicitation rule, but whether the Respondent acted on
a good-faith belief that she may have, and asked her to
desist if she was engaging in the practice. These are the
facts as I find them, and I will recommend dismissal of the
8(a)(3) allegation concerning McDougal.
I will also recommend dismissal of the allegation that
employee Ronda Freeland was unlawfully interrogated
about her union activities, interests, and sympathies. Free-
land was not a convincing witness; I cannot credit her tes-
timony that in the context of a conversation when she and
her supervisor were lambasting the Company's rule requir-
ing end counts, Joyce suddenly switched the conversation
to an inquiry of Freeland's union sympathies.
As to the allegation that employee Barbara Shelf was
interrogated and left with the impression of surveillance,
the Respondent did not call Supervisor Fowler to deny or
explain Shelf's testimony of the January 1974 conversation.
I find, accordingly, that Fowler did ask Shelf why she was
wearing a union button, and indicated his awareness that
Caesar Kemlock gave her the button. While the conversa-
tion was attended with a certain amount of levity, I never-
theless find that Fowler's remarks could have coerced and
restrained Shelf, and the conduct violated Section 8(a)(1)
of the Act.
D. The Withdrawal of Recognition
and Subsequent Events
The General Counsel has alleged that the Union's loss of
majority, which occurred in March 1974, is attributable to
the Respondent's unfair labor practices, particularly the
unilateral changes it instituted and implemented with re-
spect to the work attendance policy. Accordingly, the Gen-
eral Counsel further contends that the Respondent's with-
drawal of recognition on March 4, 1974, and the changes
the Respondent instituted on March 8, 1974, with respect
to wages and other terms and conditions of employment,
violated Section 8(a)(5) of the Act.
I have found above that the General Counsel has failed
to sustain the burden of proof that the Respondent, either
on March 29, 1973, or on September 24, 1973, unilaterally
altered or implemented changes in its work attendance pol-
icy. On the contrary, I have found that the changes made
2 In a prior unfair labor practice case sub nomme Textured Yarn Division
of American Textiles, JD-857-72, January 15, 1973, Administrative Law
Judge Thomas Wilson found that the Respondent had instituted its no-
solicitation rule to abate union activities . No exceptions were filed to the
finding , and after the compliance period and the Union's certification, the
Respondent reposted the rule.
198 NLRB 281 (1972).
on both dates were negotiated with the Union, and imple-
mented by the Respondent thereafter with full knowledge
and approval of the Union. Similarly, I have found that the
General Counsel has not proved that Gwendolyn McDou-
gal was discriminated against in violation of Section
8(a)(3), and he has also failed to prove that employee Ron-
da Freeland was unlawfully interrogated in violation of
Section 8(a)(1) of the Act. Accordingly, the single violation
found herein is based on the conduct of Supervisor
Fowler's comments to employee Shelf concerning a union
button, and the impression he left with her of his awareness
of the source from which she had obtained the button.
It is the law that after expiration of the first year of
certification a certified union enjoys a rebuttable presump-
tion that its majority status continues. An employer may
lawfully refuse to continue to bargain with the union where
it affirmatively establishes that the union no longer com-
manded a majority, or where the withdrawal of recognition
is predicated on a reasonably based doubt of the absence
of a continuing majority.4 An employer's defense based on
either actual loss or a reasonably based doubt of continu-
ing majority fails, however, when the loss of majority is
proved to have been caused by the employer's unfair labor
practices.
There is only one unfair labor practice proved in this
case, an 8(a)(1) violation involving one minor supervisor
and one employee, and no evidence that the incident was
ever brought to the attention of any other employee prior
to the hearing in these proceedings. To the contrary, the
record here reveals a very reasonable and harmonious bar-
gaining relationship between the Respondent and the
Union, with numerous bargaining sessions and agreement
on a number of critical issues. In March 1974, the Respon-
dent was served with a petition signed by more than 60
percent of the employees in the unit asking for withdrawal
of recognition, and I find that this constitutes adequate
evidence to support the Respondent's contention of a
good-faith belief, and rebuts the presumption of the
Union's continuing majority. Inasmuch as the
Respondent's withdrawal of recognition was lawful, the
subsequent changes in wages and other terms and condi-
tions of employment cannot be found to violate the Act.
Accordingly, I will recommend dismissal of these allega-
tions of the complaint.
I have found that in a single instance the Respondent
violated Section 8(a)(1) of the Act by a supervisor's con-
duct in asking an employee why she wore a union button
and informing her of the source from which she obtained
the button. I am further inclined to find, however, that this
single isolated violation of the Act does not warrant a
remedial order. Contrasted against a record of a harmoni-
ous relationship between the Respondent and the Union,
unblemished by any acrimony, let alone other labor prac-
tices , a single isolated incident involving one employee and
the misconduct of a minor supervisor does not convince
me that the interests of any party or the public can be
served by an order and a cease-and-desist notice . On this
basis, I will recommend that the complaint be dismissed in
its entirety.
4 Orion Corporation, 210 NLRB 633 (1974); J H. Rutter-Rex Manufactur-
ing Company, 209 NLRB 6 (1974).
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact and conclusions,
and upon the entire record in this case , I hereby make the
following:
CONCLUSIONS OF LAW
1. The Respondent, Carolina American Textiles, Inc., is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, Textile Workers Union of America,
AFL-CIO, CLC, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Except in one instance , the General Counsel has not
proved by a preponderance of the evidence that the Re-
spondent has violated the National Labor Relations Act,
as amended . As to the one instance of a violation , which I
have found above to be de minimis, I conclude that a
remedial order is not warranted.
[Recommended Order for dismissal omitted from publi-
cation.]