Collins & Aikman Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1970

187 N.L.R.B. 620 (N.L.R.B. 1970)

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collins & Aikman Corporation and International
Union of District 50, Allied and Technical Workers
of the United States and Canada.' Case
11-CA-4085
December 31, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On August 5, 1970, Trial Examiner Samuel Ross
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices alleged in
the complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in the case, and hereby adopts the findings,2
conclusions, and recommendations of the Trial
Examiner.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
Collins & Aikman Corporation, Farmville, North
Carolina, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
I The Charging Party's name has been amended herein to conform with
amendments in its constitution
2 These findings are based, in part, upon credibility determinations of
the Trial Examiner to which the Respondent has excepted After careful
review of the record, we conclude that these credibility findings are not
contrary to the clear preponderance of all relevant evidence Accordingly,
we find no basis for disturbing these findings Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
3 Though we adopt the Trial Examiner's findings that the interrogation
of employees by Respondent's Supervisors Grey, Pittman, and Hardison
violated Section 8(a)( I) of the Act, we do not consider it necessary to these
findings to apply the standards set forth in Stmksnes Construction Co, Inc,
165 NLRB 1062 As the Trial Examiner himself points out, these standards
are to be applied where an employer is faced with a union claim of
majority status and a demand for recognition, neither of which existed in
the instant case In addition to the other cases cited by the Trial Examiner,
we rely on the rationale of Union News Company, 112 NLRB 420
Although Chairman Miller agrees with the Trial Examiner that the
speech made to employees on November 3, 1969, by Plant Manager
Oxford violated Section 8(a)(I) of the Act, he would not adopt the Trial
Examiner's finding that the speech exceeded permissible limits set forth in
The Little Rock Downtowner, Inc, 143 NLRB 887, enfd in part 341 F 2d
1020 (C A 8), and Orkin Exterminating Company of Florida, inc, 152
NLRB 83, enfd 379 F 2d 972 (C A 5)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner. Upon a charge filed
November 24, 1969, and amended on March 5, 1970, by
International Union of District 50, United Mine Workers
of America (herein called the Union), the General Counsel
of the National Labor Relations Board issued a complaint
on March 19, 1970, which alleges that Collins & Aikman
Corporation (herein called the Respondent or the Compa-
ny) had engaged in and is engaging in unfair labor practices
within the meaning of Sections 8(a)(1) and (3) and 2(6) and
(7) of the Act. The Respondent filed an answer to the
complaint which denies the substantive allegations of the
complaint.
Pursuant to due notice, a hearing in this case was
conducted before me at Greenville, North Carolina, on
April 28 and 29, 1970. Upon the entire record, and my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent is a corporation which at all times
material herein owned and operated a plant at Farmville,
North Carolina, where textiles and related products are
manufactured. During the past 12 months, a representative
period, the Respondent admittedly manufactured, sold,
and shipped goods valued in excess of $100,000 from its
plant in Farmville to points and places outside the said
State I find on the above admitted facts that the
Respondent is engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues Presented for Determination
The issues presented by the pleadings and evidence in
this case are whether or not the Respondent , during an
organizational campaign by the Union , engaged in the
following conduct in violation of Section 8(a)(1) and (3) of
the Act:
1. Coercive interrogation of employees regarding their
union membership , sympathies, and desires.
187 NLRB No. 84
COLLINS & AIKMAN CORP. 621
2. Threats of reduced wages, layoffs, or other reprisals
to discourage support of the Union.
3. The discharge of one employee (Fred Dixie Wilson)
for engaging in protected union or concerted activities.
B. Interference With and Restraint and Coercion of
Employees
1. The speech of Plant Manager Oxford
In October 1969,1 the Union began a campaign to
organize the Respondent's employees at its Farmville,
North Carolina, plant. On November 3, shortly after this
campaign commenced, Plant Manager Lamar Oxford
separately convened all the employees on each of the
Respondent's three shifts and delivered speeches which
admittedly urged the employees to reject representation by
the Union.
According to a composite of the credited testimony of
Oxford and employee witnesses , Oxford told the assembled
employees that they undoubtedly were aware that the
Union was trying to organize the plant, that they likely
would be visited at their homes by union organizers in an
attempt to get them to sign union cards like the one he had
in his hand and exhibited to the employees; that the
employees could refuse to let the union organizers into their
homes or to talk with them if they so desired; that the
Respondent was opposed to the representation of its
employees by the Union and would do everything within its
legal power to keep the Union out; that the textile industry
(of which the Company was a part) could not afford to pay
wages like General Motors and Ford; that the employees
could not afford to take a strike, but that the Company
could; that unions promise big wages, but produce nothing
but strikes, bloodshed, turmoil, and corruption; that at the
Respondent's Albemarle, North Carolina, plant the
certification of a union was followed by an unsuccessful
strike of 4 weeks accompanied by bloodshed, as a result of
which each of the striking employees lost wages of about
$400, and the union was no longer there; 2 that, if the Union
came in to the Farmville plant, it would not work out to the
best interests of the employees ; that union organizers
"always" assure employees that the union cards they sign
are confidential and would not be seen by anybody but the
Union and the Labor Board; that such assurances are often
false because unions attempt to obtain representative status
on the basis of signed cards without an election; that when
that occurs the cards are laid on the table at an open
hearing, and "we [management] can see who signed the
cards"; that those who signed cards would never get any
advantage or preferred treatment over those who did not
sign; that Respondent would discharge anyone who
I All dates hereinafter refer to 1969 unless otherwise noted
2 See Collins & Arkman Corporation, 165 NLRB 678, enforcement
denied in part , 395 F 2d 277 (C A 4)
3 The quotes immediately above are from the credited testimony of
employee Wilson winders, another employee, testified in this regard that
Oxford said that, "people who didn't sign a union card would not be
fired " Oxford testified that he spoke from notes, but the notes were not
produced or offered by Respondent, Oxford admitted that, like some of the
employees who testified regarding the speech, he "could not recall exactly
what was stated " Accordingly, my findings above are based partly on his
testimony and partly on the testimony of employees Wilson, Moore,
Edwards Jr, and Winders, to the extent to which I deem the testimony in
solicited signatures to union cards in the plant during
working time ; and that no one "ever got discharged
because he did not sign a union card." 3
An employer unquestionably has a lawful right both to
oppose the representation of his employees by a union and
to express that opposition to them. He may not, however, in
the guise of his right to free speech protected by Section 8(c)
of the Act, impinge on the statutory rights of his employees
guaranteed by Section 7 of the Act by threatening reprisals
for joining or assisting a labor organization. The complaint
in this case alleges that Oxford 's speech in part exceeded
the proscriptions of Section 8(a)(1) of the Act , and, for the
reasons hereinafter stated , I find merit in that allegation.
The Respondent admittedly was and is opposed to the
representation of its employees by the Union. It not only
made the opposition known to its employees, but it also
suggested to employees that they not sign union cards.4
Oxford clearly conveyed to the employees that notwith-
standing union assurances that the identity of card signers
would be kept confidential the Respondent had at its
disposal the means for determining who were its loyal
employees who did not sign cards, and who were not. The
Respondent 's motivation for telling its employees that it
would know who signed cards clearly was to intimidate and
discourage them from signing . Moreover, in this context,
Oxford's further statement that no one "ever got discharged
because he did not sign a union card," clearly conveyed an
implied threat that the Respondent would learn the identity
of those who did sign cards and that they could expect less
favorable consideration or reprisals .5 I conclude that the
Respondent thereby exceeded the bounds of free speech
protected by Section 8(c) of the Act, and thereby interfered
with, restrained, and coerced employees in the exercise of
their right to Join or assist labor organizations, and violated
Section 8(a)(1) of the Act.
As found above, Oxford also told employees that the
selection of the Union as their representative would gain
them nothing but strikes, turmoil, and bloodshed, as it had
at the Respondent's Albemarle plant, and that the
Respondent could afford to take a strike but the employees
could not. These statements in effect advised employees
that a strike was the only means by which they could
achieve increased wage gains which unions promised.
Oxford's statements in this regard clearly were calculated to
convey the message of the futility of union representation
and tended to discourage support of the Union by
employees. I find that the Respondent thereby further
interfered with, restrained, and coerced employees in the
this regard as reliable
4 Oxford testified that he told the employees that if they signed a card,
"it might be difficult to get them unsigned" Employee Edwards, Jr,
credibly testified that Oxford said, "he didn't want us to sign a card
for the union "
5 In fact , several employees testified that they understood Oxford's
statements to mean that if an employee signed a union card, the
Respondent could find a pretext to fire him . I am satisfied, as Oxford
testified , that no such actual threat was expressed by him However, I
regard the statements found above which he did make as a none too subtle
threat that card signers would be regarded less favorably by Respondent
and could expect reprisals
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise of rights guaranteed by Section 7 of the Act and
further violated Section 8(a)(I).6
2. Additional threats of reprisal
After Oxford's speech, a number of Respondent's
employees on the third shift visited the canteen during their
coffeebreak and discussed what Oxford had said. Accord-
ing to the uncontroverted and credited testimony of
employee Fred Dixie Wilson, one (unidentified) employee
said to Raymond Saunders, an admitted supervisor, "You
can take my word for it. Sooner or later they are going to
have a vote down here, and the union is coming in here."
Saunders replied, "I will tell you one thing ... they might
have a vote, you might sign one of those [union] cards, but
if they [management] find it out, they won't fire you, they
might not fire you then, but sooner or later they are going to
find a way to discharge you." 7 Supervisor Saunders'
statement, for which the Respondent bears responsibility,
clearly constitutes coercion and restraint of employees in
the exercise of their right to join or assist labor organiza-
tions, and I therefore find that, thereby, the Respondent
further violated Section 8(a)(I) of the Act.
3. Interrogation of employees regarding the Union
a. Ernest Edwards, Jr., was employed at the time of
Oxford's speech as a tuber in the inspection department.
After Oxford's speech, Raymond Grey, an admitted
supervisor, came up to Edwards while he was running his
machine and asked Edwards whether he had received an
invitation to a fish stew At that time, the only fish stew
which Edwards knew anything about was one that had
been "set up" by Mr. Carr, the Union's representative.
Edwards, in reply, asked Grey, "What fish stew?" Grey did
not elaborate, but merely said, "Forget it.""
b. Edwards subsequently had occasion to visit the office
on business, and as he was leaving Harvey Pittman, an
admitted supervisor, told Edwards that he had heard he was
for the Union. Pittman also asked Edwards what his
opinion was of the Union. Edwards replied that he "had a
wife and three kids to support," that "he needed his job,"
and that he "couldn't get involved in anything like that."
Pittman replied that he believed Edwards. Pittman also told
Edwards that at another company, International Paper, the
advent of a union had resulted in a layoff and that he
thought, "if we had a union out there, it would be the same
way out there, like we wouldn't have the work that we have
on account of the strike, something like that."9
c. Kenneth W. Winders was and is a leadman employed
6 The Little Rock Downtowner, Inc, 143 NLRB 887, 890 , enfd in this
regard , 341 F 2d 1020 (C A 8), Orkin Exterminating Company of Florida,
Inc, 152 NLRB 83, 93, enfd 379 F 2d 972 (C A 5)
7 Although a witness for Respondent , Saunders was not asked whether
he made this statement and did not deny doing so
8 The findings above are based on Edwards ' credited testimony which
was not controverted Grey was not called by Respondent to testify, and
no explanation was offered for the failure to do so
9 The findings above are based on Edwards ' credited testimony which
was not controverted Pittman was not called by Respondent to refute
Edwards ' testimony , and no explanation was offered for the failure to do
so
10 The findings above are based on Winders' testimony which was not
controverted Although present at the hearing, the Respondent did not call
by the Respondent in the dye house on the third shift. At
the time of Oxford's speeches to the employees, Winders'
immediate and admitted supervisor was James Hardison. A
few days after the speeches, Hardison instructed Winders
to send his men into the dye house office one at a time, and
then to come in last. Winders complied and sent his four
men (batchers) to to the office as directed. When Winders
finally made his entry, Hardison asked him if he would vote
for the Union "if we had an election." Winders replied that
"if we had an election right then, that I would not vote for
the Union." Hardison then asked Winders whether any of
the men had been talking about the Union. Winders replied
that he "had heard everything for management so far." io
d. Wylie F. Hinson, Jr., was hired by Respondent on
December 8. During his preemployment interview by
Thomas G. Bullock, the Respondent's personnel manager,
Hinson was asked by Bullock what he "thought about
unions," and Hinson replied that he "didn't care nothing
[sic ] about them because I had seen them put people out of
work" at another establishment."
In respect to the recurring question of the lawfulness of
interrogation of employees regarding their views about
unions, the Board said in its decision in Struksnes
Construction Co.. i2
In our view any attempt by an employer to ascertain
employee views and sympathies regarding unionism
generally tends to cause fear of reprisal in the mind of
the employee if he replies in favor of unionism and,
therefore, tends to impinge on his Section 7 rights. As
we have pointed out, `An employer cannot discriminate
against union adherents without first determining who
they are.' [Citations omitted.] That such employee fear
is not without foundation is demonstrated by the
innumerable cases in which the prelude to discrimina-
tion was the employer's inquiries as to the union
sympathies of his employees.
Accordingly, the Board in Struksnes adopted standards for
determining when and how an employer, faced with a
union claim of majority status and demand for recognition,
may lawfully inquire about the union views and desires of
his employees. The Board said in this regard: 13
Absent unusual circumstances, the polling of em-
ployees by an employer will be violative of Section
8(a)(1) of the Act unless the following safeguards are
observed: (1) the purpose of the poll is to determine the
truth of a union's claim of majority, (2) this purpose is
communicated to the employees, (3) assurances against
reprisal are given, (4) the employees are polled by secret
ballot, and (5) the employer has not engaged in unfair
Hardison to testify and offered no explanation for the failure to do so
11 The findings and quotes above are based on Hinson's testimony
which I credit Bullock denied asking any prospective employee whether he
was a member of a union or how he felt about unions He admitted,
however, that in his interview with prospective employees he told them
about the Respondent 's so called "open door policy," and that employees
"don't need an outside company to help you, you don't have to pay
someone else to represent you " I do not credit Bullock's denial because
(1) I regard Hinson as a credible witness who, so far as the record discloses,
had no interest in this proceeding , and because (2) Bullock admitted that
the subject of representation by outsiders (a term frequently used to refer
to unions) was regularly discussed by him with applicants for employment
iz 165 NLRB 1062
11 Struksnes Construction Co, supra, 1063
COLLINS & AIKMAN CORP. 623
labor practices or otherwise created a coercive
atmosphere.14
The Respondent's interrogation of employees in this case
met none of the Struksnes standards. So far as the record
discloses, the Union had neither made a claim of majority
status or demanded recognition of Respondent. The
inquiries could not therefore have been made to determine
the truth of a claim which had not been made. No purpose
for the interrogation was communicated by any of the
supervisors to the employees whom they questioned, and no
assurances were given against reprisal. The interrogation
occurred in the coercive atmosphere engendered by
Oxford's antiunion speech, which also, as found above,
violated Section 8(a)(1) of the Act. Indeed, the interroga-
tion clearly instilled fear in the mind of employee Edwards,
at least, for he replied to Pittman's interrogation that he
could not afford to get involved with the Union because he
had a family to support and needed his job, and he
responded to Grey's interrogation by falsely professing
ignorance of the Union's fish stew. Moreover, as noted
above, Hardison interrogated employees singly, in the
privacy of the dye house office.15
For all the foregoing reasons, I find that the interrogation
of employees by Respondent's supervisors Grey, Pittman,
and Hardison, and the preemployment interrogation of
Hinson by Bullock, constituted interference, restraint, and
coercion of employees in the exercise of Section 7 rights
and that thereby the Respondent engaged in further unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.16
C. The Alleged Discriminatory Discharge of Fred
Dixie Wilson
Fred Dixie Wilson was hired by the Respondent in July
1966 to operate a tow motor, also known as a forklift. His
duties consisted of transporting rolls of greige cloth
produced by the doffer knitting machines to one of the
Respondent's in-plant warehouses, placing the rolls into
appropriate bins or bays, recording where they were so
placed, keeping the warehouse clean, and, on written orders
prepared by a dye lots writer, transporting the rolls of
greige cloth from the warehouse to the dye house for further
processing by the batchers who work in the latter
department. Wilson worked at this job on the third shift
during the hours of 11 p.m. and 7 a.m. It is undisputed that
an important aspect of Wilson's job was "to keep the
batchers going;" that is, supplied with cloth to dye.17
In October 1969, Wilson and a number of other third
14 These standards have been uniformly approved by the courts.
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 609; N.L.R.B. v. J. M.
Machinery Corporation , 410 F.2d 587 , 589-590, In. 3 (C.A. 5): N.L.R.B. v. C
& P Plaza Department Store, 414 F.2d 1244, 1248-1249 (C.A. 7); N.L.R.B.
v. Historic Smithville Inn, 414 F .2d 1358, 1362 (C.A. 3).
11 Cf. Bourne Co. v. N.L.R.B., 332 F.2d 47 (C.A. 2).
'a Barry Industries, Inc., 181 NLRB No. 159. In respect to Bullock's
employment interview interrogation , see Tesoro Petroleum Corporation, 174
NLRB No . 135; Gerbes SuperMarkets , Inc., 176 NLRB No. I (TXD).
17 The Respondent also employed one tow motor operator on each of
its other two shifts who performed the same duties as Wilson.
18 The record fails to disclose that any employee either distributed
handbills, solicited signatures to union cards , or otherwise actively
participated in the Union 's campaign.
19 The quotes are from Wilson 's testimony which I credit because I
shift employees were in the Respondent's canteen in the
plant and observed that the machine which heats
sandwiches appeared not to have been cleaned for a couple
of weeks. One unidentified employee, commenting on this
condition, said, "this place needs a union ... to get it
straightened out." Another suggested that they could "get a
union in here" if 10 or 15 people "signed a paper," and they
would then "have to vote to see whether we get a union or
not." "A paper" was prepared and the seven or eight
employees who were present, including Wilson, signed it.
Then, since Wilson as tow motor operator moved around
the plant and had access to a number of departments, he
was asked to and agreed to take the paper around and
secure additional signatures. Wilson complied and "got
approximately 15 names signed on there," but he either
"left it [the paper] on the tow motor, or lost it." In any
event, shortly thereafter the Union commenced its
campaign to organize the Respondent's Farmville employ-
ees. Insofar as the record discloses, the campaign was
conducted by "union organizers" and not by employees.18
As found above, on November 3, shortly after the
Union's organizational campaign began, Plant Manager
Oxford delivered antiunion speeches to the Farmville plant
employees. After Oxford's speech to the third-shift
employees, a number of them visited the canteen during the
coffeebreak, and the principal subject of discussion was the
speech and the Union. Supervisor Raymond Saunders was
sitting at a table in the canteen "right next to" Wilson when
employee Arthur Gene Moore walked in and said to
Wilson, "I know you are for it [the Union] because you
signed that paper." Wilson did not reply.19
On about November 12, the Union's representatives
distributed three pieces of union literature as a package to
the employees at the plant entrance as they came to work.
That night Wilson asked Supervisor James Hardison
whether he had received "one of those C & A Bulletins,"
and Hardison replied that he had. Wilson asked Hardison
what he thought about it, and Hardison replied that he had
not given it much thought. Hardison then asked Wilson
"what did I think about it." Wilson replied that he had not
given it much thought either, and he added, "that I believed
it would be a good thing for a poor man, because it was the
only thing he had going for him."
During most of Wilson's employment by Respondent, his
immediate supervisor was Wilbur Counterman. However,
Counterman was not in the plant during most of the third
shift when Wilson worked because his hours of employ-
ment were from 6:30 a.m. to 3:30 p.m. Around the first of
November, J. T. Franks, who was the Respondent's
regard his testimony as generally reliable . Moore's testimony regarding
what he said was not precisely the same as Wilson 's, but nevertheless was
substantially to the same effect . Saunders admitted being at the same table
with and right next to Wilson on this occasion , but he denied hearing
Moore, or any one else, say that Wilson was "in the Union," or that he
"liked the union" or "felt sympathy for it." Saunders further testified that,
on the occasion in question , Wilson said "that he didn't think the Union
would do this plant any good , because we already had good benefits." In
the light of Saunders ' admission that he was at the same table when Moore
spoke to Wilson, I do not believe his denial that he heard what Moore said.
Moreover, in view of Wilson 's prounion activity in soliciting signatures to
the "paper," as found above , I regard the procompany and antiunion
statements attributed by Saunders to Wilson as inherently implausible,
improbable, and unworthy of belief . Furthermore, I regard Saunders'
testimony as generally unworthy of reliance.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department head over the warping department, was
appointed to also head up the shipping and receiving
departments and the warehouse. He thus became the top
supervisor of the department of which Counterman was
Wilson's immediate supervisor. Like Counterman, Franks'
normal hours of employment were in the daytime, usually
from 5 a.m. to 4 p.m. On the morning of November 13,
Franks asked Wilson whether he had attended the meeting
"that Oxford held the other night." Wilson asked "what
meeting?" Franks replied, "The meeting Mr. Oxford held
about the Union." Wilson then answered, "I would rather
not say, Mr. Franks." Franks then smiled and walked off.
On the following morning, November 14, Wilson was
called to Franks' office. According to Wilson's credited
testimony which was not refuted by Franks, when he
arrived there, Franks told him in Counterman's presence
that he had received a complaint that he had not "been
taking rolls of cloth to the batcher[s], and that they are
constantly giving out, and that you weren't delivering them
over there." Wilson asked, "who complained," and Franks
replied, "the third shift supervisor." Wilson asked Franks to
call the supervisor in "right now," and he said, "I don't
believe he will say that because I do that job better than any
other job out here." Franks did not call the supervisor.
Instead he told Wilson to sign a "warning slip" which had
already been prepared, and he said that "he would check on
it further." Franks also told Wilson that if he "didn't sign
the warning slip, well I might have to replace you, because,
Dixie,20 you are on your own out there." Wilson then
signed the slip despite his assertion that the reprimand was
unwarranted and his denial that the batchers "ran out of
material." 2i
Eight hours later, on the morning of Saturday, November
15, Wilson again was called into Franks' office, and in the
presence of his supervisor, Counterman, he was told that he
was being discharged because he had put a roll of style 700
cloth "in the wrong bay" of the warehouse. According to
Wilson's uncontradicted and credited testimony, the
following conversation occurred during his terminal
interview with Franks and Counterman.22 Franks told
Wilson, "Dixie, I know I haven't been out here in the
warehouse long, but, you misplaced a roll of cloth.23 We are
going to have to replace you because you just can't keep
going on like this." Wilson asked, "Mr. Franks, was that a
[style] 700 strand of cloth?" Franks replied, "My mind is
made up. I am going to let you go." Wilson told Franks and
Counterman that he had put the roll of style 700 cloth in
other than its usual bay because there was no room for it in
its regular place of storage. Wilson also told Franks that the
other tow motor operators had placed rolls of cloth in other
than their regular bays. Franks replied that there was the
matter of the warning slip which he had given Wilson the
day before and that he also had in his files "other warning
slips" of Wilson's for "cloth being misplaced." Wilson said
that the prior warning slip was given to all the tow motor
operators and that "we all got one together". Franks replied
that "he didn't have anything in his file of nobody else [sic]
but me getting one." Wilson asked Franks and Counterman
"to go and look in the warehouse" and see if they "thought
it was messed up," but "they would not go." Wilson begged
Franks "not to let me go." He told Franks he had five
children at home, and that it would be hard for him to get a
job because of his "back condition" and limited education.
Wilson said, "I've been working hard," and he "begged him
[Franks] to give me another chance," or to "transfer me."
Franks said he had no authority to transfer "anybody," but
he would help Wilson "any way he could to get a job"
somewhere else. Finally Franks offered Wilson his pay and
asked him to sign a slip, but Wilson refused to either accept
the money or sign. It was then about 7:30 a.m. when
Counterman escorted Wilson to the door and out of the
plant.
About 8 a.m. on November 15, Wilson returned to the
plant to see Personnel Manager Thomas G. Bullock who
was at home at that time. However, his secretary
telephoned Bullock and he came to the plant shortly
thereafter, visited briefly with Franks in the plant, and then
met with Wilson. He asked Wilson how he "was doing,"
and Wilson said that "I wasn't going so good." Wilson
asked Bullock, "Do you know about me being discharged?"
Bullock answered, "Yes, I know about it. I'm sorry it
happened, Dixie." Wilson then asked Bullock if "instead of
discharging me, how about laying me off or letting me
resign or something? You know, that [a discharge] is going
to hurt me from getting a job somewhere, because of my
back condition being bad, [and] because my education is
bad." Bullock replied, "Well, I can't help it," and he added,
"Dixie, you need this money, go ahead and sign the paper
and take it." Wilson refused. Bullock then questioned
Wilson about how his family "was doing," where he lived,
and suggested a number of places by name where Wilson
"could get a job." He also told Wilson that he would "try to
help me get a job anywhere," and that if he were called he
would give Wilson "a good character [reference]." Wilson
then asked Bullock, "How about replacing me somewhere
else in the plant?" Bullock replied that he could not,
because Franks had noted on Wilson's termination slip (TX
Exh. 1) "Do not rehire." Bullock also told Wilson that, but
20 Dixie, Wilson's middle name , was generally used by most of the
witnesses when referring to him
21 The warning slip (Resp Exh 1) read as follows
21/ The warning slip (Reap Exh. 1 ) read as follows
PROBATION
EMPLOYEE RELATIONS REPORT
NAME Fred Dixie Wilson CLOCK NO DATE 11-14-69
REPORT OF - COMMENDATION ABOUT - QUALITY OF WORK _ TRANSFER
EMPLOYEE PROBLEM _ QUANTITY OF WORK _ SAFETY
OR COMPLAINT x ATTENDANCE _ CONDUCT
x WARNING _ VIOLATION OP RULE _ MISC
LAY OFF (DISCIPLINARY)
- CONVERSATION (MISC.)
PROBLEM (State Briefly the Nature of the Problem) Dye house complaining
about not getting cloth to Batchere on 3rd shift like they should
REMARKS ( Action Taken or Solution)
Dixie must keep his lob up - r he will be replaced
EMPLOYEE ' S REACTION : Dixie says he takes every Dye lot they ask him to take
EMPLOYEE Fred D . Wilson SUPERVISOR W. E Counterman. Jr.
DEPARTMENT MGR. J T . Franks RES. MGR.
S. Evans
22 Franks, although a witness for Respondent who testified after
Wilson, did not testify regarding what was said at this meeting
21 On cross-examination, Wilson testified, "He [Franks) told me I put a
roll of cloth in the wrong bay "
COLLINS & AIKMAN CORP.
for Franks' notation, he "probably could have placed
[Wilson] somewhere else." Finally, Bullock wrote up an
"Exit Interview" slip (Resp. Exh. 4) and asked Wilson to
sign it and take his money. Wilson refused to sign, and,
when asked by Bullock why not, he replied, "Because I
know it isn't so." 24
After Wilson refused to sign, Bullock added the following
at the bottom of the exit interview form:
Interviewer's Comment Employee would not sign
because he thought he did hisjob well.
Interviewer's Signature Thomas G. Bullock
Bullock also credibly testified and gave the following
additional details of the terminal interview which Wilson
did not mention: (a) that when Wilson told him that he did
not know what to tell prospective employers as to the
reason for his discharge, he told Wilson, "Well, Dixie, in
my opinion it was poor judgement on your part. You
should not have placed the cloth where you did, because
that wasn't where it belonged"; and (b) that when Wilson
asked him, "Don't you think I've done a good job here?" he
told Wilson, "Up to a point you did a good job, but later
here you have fallen down." Bullock also credibly testified
that, just before his terminal interview with Wilson, he had
spoken to Franks in the plant and that he was told by
Franks that Wilson was discharged for the single reason
that on successive days, "he had misplaced two rolls of
cloth," or more "specifically [that he failed] to do ajob as
he was instructed to do it, and to place the rolls where he
had been instructed to place them."
At the conclusion of his interview with Wilson, Bullock
gave him the following letter:
To Whom It May Concern:
Should the holder of this apply for employment I
would appreciate it if you would contact me regarding
his termination with us.
Thomas G. Bullock
Pers. Mgr.
Collins & Aikman
Farmville, N. C.
Wilson has not since been offered reemployment by
Respondent.
About a month later, Kenneth Biggs, a friend and
prospective employer of Wilson, called Bullock and
inquired about the reasons for Wilson's termination, and,
according to Bullock's credited testimony, he told Biggs
that Wilson was discharged "because he used poor
24 The findings and quotes above are based on Wilson's credited
testimony Wilson also testified that the exit interview form which he was
asked to sign stated that his attendance was below average, but, in the light
of the form in evidence, I am persuaded that he was mistaken, and I do not
credit his testimony in this regard, notwithstanding that I was favorably
impressed by his demeanor and the reliability of his testimony in most
respects Bullock's version of his terminal interview with Wilson was not
significantly different from Wilson's, except for Bullock's testimony, which
I credit, that he neither wrote on the terminal interview form, or said to
Wilson or anyone else, that Wilson's attendance was poor
25 Biggs testified that Bullock also told him that Wilson had been
"staying out of work" and "didn't show up on time," and that "he had
been messing around with a union group" Bullock denied that he said
anything to Biggs either about poor attendance on the part of Wilson or
about a union I regard Bullock's testimony in this instance as more
reliable than Biggs', especially since, at the time of this conversation, a
625
judgment" and because "his work was sloppy" and not
"what we expected," and that "Mr. Wilson had done a
good job up until that time." Bullock explained that by the
term "that time," he was referring to "just before he
[Wilson ] was terminated." 25
D. Concluding Findings
The complaint herein alleges that Wilson's termination
and the failure and refusal to thereafter reinstate him were
motivated by his concerted activities with other employees
for the purpose of collective bargaining and other mutual
aid and protection. The Respondent denied that it had any
knowledge or suspicion when Wilson was fired that he "was
in any way involved with the Union," or had "any
sympathies with the Union," and it similarly denied that the
Union had "anything whatever to do with his [Wilson's]
discharge," 26
I regard Respondent's denial of knowledge or suspicion
of Wilson's prounion "sympathies" and tendency as
unworthy of credence or belief for the following reasons:
As found above, Wilson had solicited the signatures of
employees to "a paper" whose purpose was to interest a
union in commencing an organizational campaign. Wilson
had conducted that solicitation in the plant. Subsequently,
after union organization commenced and Plant Manager
Oxford delivered his antiunion speeches to the employees,
at least two of Respondent's supervisors obtained direct
knowledge that Wilson was a union supporter: Saunders,
when Moore, in his presence, told Wilson that he knew
Wilson was for the Union because he had signed "that
paper"; and Hardison, to whom Wilson said that he
believed a union was "a good thing for a poor man because
it was the only thing he had going for him." Moreover,
Franks also had reason to believe that Wilson was a union
supporter. Thus, when Franks asked Wilson about
November 13 (2 days before he fired him) whether he had
attended Oxford's meeting with the employees, Wilson had
replied, "I would rather not say." It is reasonable to infer,
as I do, that Wilson's refusal to discuss Oxford's antiunion
speech must have stamped him as a supporter of the Union.
I conclude from the foregoing that the Respondent (and
Franks) knew or suspected that Wilson was a supporter of
the Union.27
Prior to his termination, Wilson had been employed by
Respondent at the samejob for about 3 years. According to
his uncontroverted and credited testimony, Wilson had
"never" received any complaints from either James
charge that Wilson's discharge was an unfair labor practice already had
been filed and served on Respondent Bullock was aware of it and thus
would not likely have said what Biggs attributed to him I therefore credit
Bullock's denials and do not believe Biggs in this regard
26 The quotes are from the testimony of Franks who fired Wilson
27 In fact, as Wilson frankly acknowledged in his affidavit to the Board
(Resp Exh 2), he did not sign a union card until several days after his
discharge However, if he was fired by Respondent because of its belief
that he was a prounion employee, it is immaterial that he was not a union
member, for it is the animus and actions of the Respondent which are at
issue in determining whether Wilson's discharge was discriminatory and
not whether he engaged in union activity N L R B v Ritchie Mfg Co, 354
F 2d 90, 98 (C A 8), N L R B v American Casting Service, Inc, 152 NLRB
172, 179, enfd 365 F 2d 168, 174 (Employee McGarrah) (C A 7), Ridge
Tool Co, 102 NLRB 512, 513, enfd 211 F 2d 88 (C A 6)
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hardison , the third -shift supervisor of the dye house
batchers , or from Kenneth W. Winders, their leadman, that
he had failed to keep the batchers supplied with cloth.
Moreover , notwithstanding that during the course of his 3
years of employment Wilson admittedly had received three
or four warning slips , 28 until the incidents for which he
assertedly was discharged he was regarded by the
Respondent as a satisfactory employee. Thus, as found
above, during Wilson 's terminal interview , Personnel
Manager Bullock conceded to Wilson that he had done "a
good job" "up to a point .. . but later here you have fallen
down" ; and in a conversation a month later with
prospective employer Biggs , Bullock told Biggs , inter aha,
that "Mr . Wilson had done a good job up until that time,"
and Bullock explained that by the term "that time," he
referred to "just before he [Wilson ] was terminated."
Despite Wilson 's prior satisfactory record, Franks com-
menced finding fault with Wilson's work and fired him
immediately after the Respondent obtained knowledge of
Wilson ' s prounion frame of mind . In the light of the
coincidence of Respondent 's asserted dissatisfaction with
Wilson 's work with its acquisition of knowledge of his
prounion sympathy, and the Respondent ' s undisputed
hostility to the Union , I find that a prima facie case is
established that Wilson's discharge was motivated by
antiunion considerations.
According to Franks , three incidents, described and
considered hereinafter , all of which allegedly occurred
during the third shift on the nights of November 12 and 13,
motivated his decision to fire Wilson.
1. The first reason , according to Franks , was that
Wilson was assigned on about November II or 12 to clean
up the warehouse . The work consisted of straightening up
and separating styles of cloth in the warehouse . Admittedly,
the instructions to Wilson in this regard were not given by
Franks, but by Counterman , Wilson's immediate supervi-
sor. Franks ' only testimony regarding Wilson 's alleged
shortcoming in respect to this assignment was that "it
wasn ' t done," and nothing more . Significantly , Franks did
not testify that his conclusion in this regard was based on
personal knowledge or inspection of the warehouse
However , Wilson credibly testified that on the morning of
November 13, he was complimented and told by Franks
"that the warehouse was looking real good." 29 In addition,
Wilson also credibly testified without contradiction that on
the following morning (November 14) Counterman told
him that he "had done a good job in moving that stack of
cloth," and that "the warehouse was looking good."30
Moreover , although (as appears infra) Wilson received a
written reprimand (Resp Exh 1 ) that same morning of
November 14 for assertedly failing to keep the dye house
batchers supplied with greige cloth, neither the reprimand,
2N The nature of these prior warnings does not appear in the record
since the Respondent did not offer any of them in evidence
29 Franks denied that he complimented Wilson on the condition of the
warehouse, but I do not credit his denial for I regard his testimony, and
especially his asserted reasons for discharging Wilson, as generally
unworthy of credence
30 The Respondent did not call Counterman as a witness,
notwithstanding that he assertedly participated in the decision to fire
Wilson, and as Wilson's immediate supervisor for almost 3 years, he
obviously had the best knowledge of Wilson's performance as an employee
No explanation was offered by Respondent for its failure to call
nor the record, discloses that he ever was admonished for
failure to "straighten out" the warehouse or keep it clean. I
conclude from all the foregoing, including Wilson's
credited testimony and the failure of Respondent to call
Counterman as a witness, that I can place no credence in
Franks' testimony that Wilson failed to straighten out the
warehouse as directed.
2. The second reason asserted by Franks for Wilson's
discharge was the latter' s asserted failure to deliver
sufficient cloth to the batchers in the dye house to keep
them busy during the third shift. The only testimony of the
Respondent about this alleged failure of Wilson to perform
his job properly was that given by Franks. According to
Franks, he received a complaint from David Futrell, the
department head of the dye house, that Wilson had failed
to deliver cloth to the batchers. Franks admitted that
Futrell "is not there on the third shift," and that he works
"day times." Franks also admitted that Futrell had told him
that he had received the complaint "from his third shift
people," and that he "assumed" that would be Hardison,
the supervisor of the dye house batchers. Franks further
admitted that he had "never had any discussions with Mr.
Hardison about this man, Wilson's job." Neither Futrell,
who assertedly made the complaint about Wilson, nor
Hardison who admittedly was present "in the courtroom,"
were called by the Respondent to testify regarding Wilson's
alleged failure to keep the batchers supplied with cloth, and
no explanation was offered for the failure to do so. I infer
therefrom that, if called, their testimony would have been
unfavorable to the Respondent 31 There is, thus, no
probative testimony in the record that Wilson failed to
supply cloth to the batchers for which he was given the
written reprimand on November 14.
In contrast to Franks' uncorroborated testimony of a
complaint about Wilson which he admittedly did not
investigate either before or after he issued a reprimand to
him,32 the record contains affirmative uncontradicted and
credited testimony that Wilson properly performed this
admittedly important aspect of his job. Thus, Kenneth
Winders, the leadman of the third-shift batchers, credibly
testified without contradiction, as follows: In the ordinary
"chain of command," a hatcher with a complaint about his
job "would come to me," and he, Winders, would report the
complaint to his "immediate supervisor," Hardison;
Winders had received no complaint from any batcher that
Wilson was not supplying him with cloth; Winders "never
made any complaint about Dixie's performance", about 7
a.m of November 14, before Winders found out "that
Dixie had been written up," Hardison asked him "if Dixie
was bringing the cloth to the batchers like he was supposed
to," and Winders replied "that as far as I was concerned, he
was doing okay"; Winders learned about "the write-up"
Counterman as a witness The failure to do so permits the inference, which
I make, that his testimony would not have been favorable to the
Respondent N L R B v Sam Wallick, et at, d/b/a Wa!lick and Schwalm
Company, 198 F 2d 477, 483 (C A 3), 11 Wigmore Evidence § 285, cf O F
Shearer & Sons v Cincinnati Marine Service, Inc, 279 F 2d 68, 73-74 (C A
6)
ti See cases cited in fn 30, supra
12 Franks testified in this regard that he had not "yet" discussed
Wilson's job performance with Hardison and that he learned only "today"
that Hardison was the supervisor of the hatchets on the third shift
COLLINS & AIKMAN CORP
from Wilson on the morning of November 14 as he and
Wilson were leaving the plant; at 11 p.m. that night when
Winders returned to work, he asked Hardison whether he
knew that "Dixie had been written up for not bringing cloth
to the dye house," and that "his [Hardison's] name was
mentioned in the write-up, the reason for the write-up";
and Hardison replied "that he knew nothing about it." 33
In the light of all the foregoing, including the failure of
Respondent to call either Futrell or Hardison to testify, I do
not believe Franks' uncorroborated testimony that he
received a complaint that Wilson was not supplying cloth to
the batchers, and I find that there was no basis for such a
complaint. Moreover, the absence of any investigation by
Franks, and his preparation of a written reprimand even
before he spoke to Wilson about his alleged failure to
supply cloth to the batchers, persuade me that the assertion
of this baseless reason, the written reprimand therefor, and
the previously considered and discredited reason asserted
for Wilson's discharge, all were part of a plan designed by
Respondent to provide pretexts to support Wilson's later
termination and to conceal the real motivation for that
action.
3. The third and final reason which assertedly triggered
Franks' decision to fire Wilson was as follows: Franks
testified that on the afternoon of Friday, November 14,
after he had reprimanded Wilson in writing for not keeping
the batchers supplied with cloth, he received a report that
two rolls of style 700 cloth could not be found in the
warehouse; that "we finally hunted and found it," not
where Wilson assertedly had recorded it to be, but in
another bay in the warehouse; that he accordingly decided,
in the light of Wilson's two recent shortcomings, to "then
and there" fire Wilson without "further investigation" or
giving him an opportunity to explain; that he instructed
Counterman, Wilson's supervisor, "to go put somebody on
Dixie's job, and that we would get his pay and everything,
and then the next morning tell him." Pursuant to that
decision, Franks "checked the hours" on Wilson's time-
card, had Wilson's pay computed by the accounting office,
received the amount of his pay in cash, permitted Wilson to
report that night and work the entire shift of 8 hours, and
then called Wilson into his office at 7 a.m. on Saturday,
November 15, and notified him in Counterman's presence
that he was discharged. Like the other two reasons ascribed
by Franks for terminating Wilson, I regard this final reason
also unworthy of credence or belief. I base this conclusion
on the following considerations:
a. When Wilson was notified of his discharge on
November 15, he was told by Franks that it was because he
had "misplaced a roll of cloth," "put a roll of cloth in the
wrong bay." When Personnel Manager Bullock spoke to
Wilson about 45 minutes later after previously conferring
with Franks, Bullock admittedly told Wilson that the
reason for his dismissal was "poor judgment. You should
not have placed the cloth where you did, because that was
33 In addition to Winders, Arthur Gene Moore, a third-shift hatcher in
the dye house, testified that he knew of no failure by Wilson to supply the
hatchets with cloth
34 The variance between Wilson's testimony that he was told by Franks
about a single roll of cloth that assertedly had been placed in the wrong
bay and Respondent's testimony that he was discharged because two rolls
627
not where it belonged." Bullock further testified in this
regard as follows:
TRIAL EXAMINER: Tell us why was Mr. Wilson
discharged?
THE WITNESS: He was discharged for poor quality of
work.
TRIAL EXAMINER: What do you mean by poor
quality of work?
THE WITNESS: Well, his quality was not up to the
standard that was expected by the Company in that
department.
TRIAL EXAMINER: What were the standards at that
time of the company in that department?
THE WITNESS: Specifically to do ajob as he had been
instructed to do it, and to place the rolls where he had
been instructed to place them. [Emphasis added.]
n
TRIAL EXAMINER When you were told by Mr.
Franks about Mr. Wilson's discharge, did Mr. Franks
tell you that he was being discharged because he put a
roll or rolls of cloth in the wrong bay?
THE WITNESS: He said it was because he had
misplaced two rolls of cloth.34 [Emphasis added.]
It is obvious from the foregoing that the nature of the
alleged error for which Wilson was told he was being fired
was that he had put one or two rolls of 700 strand cloth in a
bay or bays other than the one regularly assigned to that
style. It is undisputed that Wilson had admitted to Franks
that he put a roll in the wrong bay because there was no
room in the other bay.35 However, at the hearing in this
case Franks gave a different reason for Wilson's discharge
than that which was conveyed to Wilson. Thus, Franks
admitted that "it was okay" for Wilson to put cloth in bays
other than their assigned or regular place, that where
Wilson had "put it was fine," but that he had fired Wilson
because he had not correctly recorded on the "cloth tickets
(also known as the "hard copy") and his "Greige Location"
reports, the places where he had put the two rolls.36 This
shift in the reason for Wilson's discharge from one of
storing rolls of cloth in other than their assigned spaces to
one of an error in record keeping, though not in itself
dispositive, suggests that the reason now advanced is
unworthy of credence.37
b. As noted above, Wilson testified that he was told by
Franks at the time of his discharge that he had "put a roll of
[700 strand] cloth in the wrong bay," but Franks testified
that the reason for the discharge was that Wilson had
improperly recorded where he had placed two rolls of that
cloth. Franks, the Respondent's only witness in respect to
Wilson's alleged improper records, testified that the errors
were discovered during the afternoon of November 14, that
he admittedly did not go to the warehouse "to hunt" for the
two rolls of cloth which Respondent assertedly "couldn't
find," that he concededly had no personal knowledge other
of cloth could not be found will be considered, infra
5 See Resp Exh 3
36 The subject of the cloth tickets and Wilson's allegedly incorrect
reports will be considered, infra
11 NLRB v Georgia Rug Mill, 308 F 2d 89, 91 (C A 5), NLRB v
Schell Steel Products, Inc, 340 F 2d 568, 573 (C A 5)
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than hearsay that the cloth was not where Wilson had
recorded it to be, and that his information as to where the
rolls of cloth had been found assertedly was obtained from
Counterman who allegedly had "hunted for the cloth," and
from Wilson's greige location reports dated November 13
and 14 38 These were reports maintained by Wilson while
he worked on which he recorded in red ink what and where
he had stored in the warehouse on the nights in question
According to Franks, he received Respondent's Exhibits 8
and 9 from Counterman on Friday afternoon, November
14, "at the same time " However, an examination of these
exhibits clearly reveals that Respondent's Exhibit 9 is a
record which Wilson prepared during his shift which
started on November 14 at I 1 p in and ended the following
morning at 7 a in and thus was not in existence on Friday
afternoon when Franks assertedly saw it 39 I conclude from
the foregoing that Franks' testimony in respect to having
seen Respondent's Exhibit 9 when he decided to fire Wilson
is unworthy of credence or belief Moreover, in the light of
Counterman's black checkmarks alongside practically
every item recorded by Wilson on Respondent's Exhibit 9
and the notation on the top of that report, "verified by hard
copy T G B 11 / 17" (Bullock' s initials), I further conclude
that after the Respondent fired Wilson at 7 a m on
November 15 Counterman and Bullock checked Wilson's
last report seeking evidence to justify the action that
already had been taken
c There is, moreover, no probative evidence that
Wilson's notations on Respondent's Exhibits 8 and 9 as to
where he had placed the two rolls of 700 strand cloth were
not correct Counterman, who allegedly "hunted for the
cloth" and "finally found" them in bays other than where
Wilson had recorded them to be, was not called by
Respondent to testify, and no explanation was offered for
not doing so The failure to call such an obviously material
and important witness to this alleged error by Wilson, one
who had been Wilson's immediate supervisor during most
of his employment by Respondent, and thus to subject him
to cross-examination regarding Wilson's performance and
these asserted errors, suggests the inference, which I make,
that if called his testimony would not have supported
Franks' regarding either Wilson's record keeping errors or
other unsatisfactory work 40 In any event, without Counter-
man's testimony, the Respondent has not established by
competent or probative testimony either that the two rolls
of cloth were not when Wilson had recorded them to be or
that Wilson had committed the errors for which he
assertedly was fired
d Furthermore, even assuming that Wilson had made
this error in record keeping that Counterman assertedly
found, the magnitude of Wilson's offense was greatly
exaggerated by Franks Franks testified in this regard as
38 See Resp Exhs 8 and 9
39 Thus the heading of Resp Exh 9 reads as follows
GREIGE LOCATION
SHIFT 3 DATE 11/14/69
HOURS Il to 7 NAME D WILSON
40 See cases cited in In 30 supra
41 The cloth tickets were not produced by Respondent assertedly
because they are not retained by it after the cloth is dyed and packed for
shipment to the customer i am not persuaded by the explanation for the
failure to produce the two cloth tickets involved in this case because the
follows "On Friday afternoon, they [unidentified] come to
me, they couldn't find the cloth out there " "Just two" rolls
of cloth could not be found "We finally hunted it and
found it, and he [Wilson] had located it wrong" However,
an examination of the black ink notations assertedly made
by Counterman on Wilson' s greige location reports of
November 13 and 14 discloses that one roll of 700 strand
cloth, recorded by Wilson to be in Bay B-I-L, assertedly
was found in Bay B-I-R, and that the other roll of the same
style of cloth which was recorded to be in Bay B-I-L was
found right there in Bay B-I-R, but the cloth ticket, also
known as the hard copy, assertedly listed it as located in
Bay B-I-L 41 It is thus obvious that even if I accepted
Counterman's notations on Wilson's reports as probative,
competent, and correct (which I do not), anyone looking
for these two rolls of cloth would have found one of them in
each of the bays listed by Wilson Under the circumstances,
I regard Franks' testimony about "hunting" for the cloth
and ` finally" finding the two rolls as pure fiction and
unworthy of credence or belief
All of the foregoing persuade me that none of the reasons
asserted for Wilson's discharge have any ment, and I
conclude therefrom that they are mere pretexts which were
created and advanced by Respondent to conceal the true
motive therefor
In the light of the incredible , pretextual , and baseless
reasons asserted by the Respondent for discharging Wilson,
the real reason is not difficult to infer In Shattuck Denn
Mining Corporation v N L R B, the court of appeals
appropriately said 42
Nor is the trier of the fact-here the trial ex-
aminer-required to be any more naif than is a judge If
he finds that the stated motive for a discharge is false, he
certainly can infer that there is another motive More than
that, he can infer that the motive is one that the employer
desires to conceal-an unlawful motive-at least where, as
in this case, the surrounding facts tend to reinforce that
inference [Emphasis supplied ]
The "surrounding facts" in this case disclose that Wilson
had worked for the Respondent for 3 years He had been a
satisfactory employee and had done a good job until the
events for which he allegedly was discharged
At the time Wilson allegedly committed the various faults
for which he assertedly was discharged a campaign was in
progress by the Union to organize the Respondent's
employees The Company was unalterably opposed to the
representation of its employees by the Union It knew that
Wilson was sympathetic to the Union's cause Indeed, all of
the faults attributed to Wilson by the Respondent allegedly
occurred immediately after the Respondent became aware
that Wilson had prounion sympathies In the light of the
foregoing, and the baseless, unsupported , and incredible,
pretextual nature of the reasons asserted for Wilson's
Respondent did produce Wilson s greige location reports for November 13
and 14 although admittedly these reports also are kept only a very short
time because the unfair labor practice charge in the case was filed and
served on Respondent on November 24 only 9 days after Wilson s
discharge and because the same considerations which impelled the
Respondent to retain Wilson s greige location reports also would dictate
the retention of the cloth tickets involved herein In any event without the
cloth ticket there is no evidence either oral or documentary that Wilson
erred in recording the location of the second roll of cloth
42 362 F 2d 466 470 (C A 9)
COLLINS & AIKMAN CORP 629
termination, the inference is quite compelling, and I find,
that his discharge was motivated not for the reasons
asserted by Respondent , but because of antiunion consider-
ations and Wilson's known prounion tendencies.
In reaching this conclusion , I have given serious
consideration to the well-established principle that it is not
the Board 's function to substitute its judgment for that of
an employer in respect to either the selection or retention of
employees and that an employer lawfully may fire
employees for any reason with but the single exception-he
may not do so if the termination is motivated by antiunion
considerations.43 Nevertheless, in the light of my disbelief
in the baseless and unsupported reasons asserted by
Respondent for Wilson's termination, and for all the
reasons previously stated, I find and conclude that Wilson
was terminated not because of any shortcomings in his
work or conduct, but by reason of his prounion sympathies
and the Respondent's opposition thereto. Accordingly, I
conclude that the Respondent thereby engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having further found that the Respondent discriminated
against Fred Dixie Wilson by terminating his employment
to discourage union activities and by thereafter failing and
refusing to reinstate him, I will recommend that the
Respondent be ordered to offer him immediate reinstate-
ment to his former position or, if it no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges , and make him whole
for any loss of earnings he may have suffered by reason of
the discrimination by the payment of a sum of money equal
to the amount he normally would have earned from the
date of his termination to the date of reinstatement , less his
net earnings during said period, with backpay computed on
a quarterly basis in the manner established by the Board.44
I will also recommend that the Respondent preserve and,
upon request, make available to the Board or its agents, for
examination and copying , all payroll records , social
security payment records , timecards , personnel records and
reports, and all other records necessary to analyze and
43 N L R B v McGahey, 233 F 2d 406. 413 (C A 5)
44 F W Woolworth Company, 90 NLRB 289, backpay shall include the
payment of interest at the rate of 6 percent per annum to be computed in
determine the amount of backpay due under the terms of
this recommended remedy.
In view of the nature and extent of the unfair labor
practices committed by Respondent , the commission of
other unfair labor practices may reasonably be anticipated.
I will therefore recommend that the Respondent be ordered
to cease and desist from "in any other manner" infringing
on rights guaranteed to employees by Section 7 of the Act
in addition to the manner in which those rights were found
to have been violated herein.45
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. Respondent, Collins & Aikman Corporation, is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. International Union of District 50, United Mine
Workers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminating against Fred Dixie Wilson by
terminating his employment and by failing to reinstate him
because of his support of the Union, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct, by coercively interrogating
employees concerning their union membership and desires,
and by threatening employees with discharge or other
reprisals because of their support of the Union, the
Respondent has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by Section 7
of the Act and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, I
recommend that the Respondent, Collins & Aikman
Corporation, its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf
of International Union of District 50, United Mine
Workers of America, or of any other labor organization of
its employees, or in any other manner discriminating in
regard to hire or tenure of employment or any term or
condition of employment.
(b) Threatening employees with discharge or other
reprisals to discourage support of the above-named Union.
(c) Coercively interrogating employees regarding their
union membership, activities, or sympathies.
(d) In any other manner interfering with, restraining, or
the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716
45 N L R B v Entwistle Mfg Co, 120 F 2d 532 , 536 (C A 4)
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing employees in the exercise of their rights to self-
organization , to form labor organizations , to join or assist
International Union of District 50, United Mine Workers
of America , or any other labor organization , to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from engaging in such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Fred Dixie Wilson immediate and full
reinstatement to his former job or, if that job no longer
exists , to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges
enjoyed, and make him whole for any loss of pay he may
have suffered as a result of the discrimination against him
in the manner provided in the section of this Decision
entitled "The Remedy."
(b) Notify Fred Dixie Wilson, if presently serving in the
Armed Forces of the United States , of his right to full
reinstatement , upon application , in accordance with the
Selective Service and the Universal Military Training and
Service Act, as amended, after discharge from the Armed
Forces.
(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 analyze and determine the amount of backpay
due under the terms of this Recommended Order.
(d) Post at its plant in Farmville , North Carolina , copies
of the attached notice marked "Appendix." 46 Copies of
said notice, on forms provided by the Regional Director for
Region 11, after being duly signed by Respondent, shall be
posted by it for a period 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered , defaced, or covered by any other material.
(e) Notify the Regional Director for Region 11, in
writing , within 20 days from the date of the receipt of this
Decision, what steps have been taken to comply herewith 47
+i' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations,
automatically become the findings, conclusions , decision and order of the
Board , and all objections thereto shall be deemed waived for all purposes
In the event that the Board 's Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
+7 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director for
Region 11 , in writing , within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence , a trial examiner of the National
Labor Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to post
this notice and we intend to carry out the order of the
Board.
The Act gives all employees these rights.
To engage in self-organization
To form, join or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection and
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights More specifically,
WE WILL NOT discourage union activity or member-
ship in International Union of District 50, United Mine
Workers of America, or any other labor organization by
discriminating against you if you chose to engage in
union activity orjoin that union or any other union.
WE WILL NOT coercively question you in any way
about the Union, or any other union.
WE WILL NOT threaten you in any way to discourage
your support of the Union.
Since the Trial Examiner decided that we discrimi-
nated against Fred Dixie Wilson to discourage union
activities , WE WILL offer him full reinstatement to his
former job, and WE WILL pay him for any loss he
suffered because we fired him . If he is presently in the
Armed Forces of the United States, we will notify him
of his right to full reinstatement upon application after
discharge from the Armed Forces.
WE WILL respect your rights to self-organization, to
form, join, or assist any labor organization, or to
bargain collectively in respect to terms or conditions of
employment through the Union named above, or any
representative of your choice, or to refrain from such
activity, and WE WILL NOT interfere with , restrain, or
coerce our employees in the exercise of these rights.
You and all our employees are free to become members
of any labor organization or to refrain from doing so.
Dated By
COLLINS & AIKMAN
CORPORATION
(Employer)
(Representative ) (Title)
COLLINS & AIKMAN CORP. 631
This is an official notice and must not be defaced by Any questions concerning this notice or compliance with
anyone . its provisions , may be directed to the Board's Office, 1624
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, Wachovia Building, 301 North Main Street, Winston-
or covered by any other material . Salem , North Carolina 27101, Telephone 919-723-2300.