Cone Mills Corp.

National Labor Relations Board - Board Decisions

Nov 2, 1967

168 N.L.R.B. 69 (N.L.R.B. 1967)

CONE MILLS CORPORATION
Cone Mills Corporation and Textile Workers Union
of America , AFL-CIO. Cases 11-CA-3242 and
I1-CA-3262
November 2, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 2, 1967, Trial Examiner Sidney Sher-
man issued his Decision in the above-entitled case,
finding that the Respondent had not engaged in any
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Coun-
sel filed exceptions to the Decision and a support-
ing brief. The Respondent filed an answering 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
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
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN , Trial Examiner: The instant
charges were served on Respondent on February 16 and
March 10, 1967.' The consolidated complaint issued on
April 26, and the case was heard on June 19. The only
matter litigated was alleged discrimination against Slate.
Briefs were filed after the hearing.
Upon the entire record,2 including my observation of
the witnesses, I adopt the following findings.
1. THE RESPONDENT
Cone Mills Corporation, herein called Respondent, is
a corporation engaged in the processing , printing, and
All dates herein refer to 1967, unless otherwise stated
2 Typographical errors in the transcript are hereby ordered corrected as
follows P 55, 1 2-"had had" should read "had heard", p 59, I
20-change "mulley" to "mother "
'Although the complaint alleged numerous other violations, no
evidence was offered in support thereof.
69
finishing of textile products at its several plants in the
State of North Carolina, including its White Oak plant,
which is the only one here involved . Respondent annually
receives from out-of-State points materials valued in ex-
cess of $100 ,000. It is engaged in commerce under the
Act.
It. THE UNION
Textile Workers Union of America, AFL-CIO, herein
called the Union, is a labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The only issue litigated at the hearing was whether
Slate's 3-day suspension from work violated Section
8(a)(3) and (1) of the Act."
A. Sequence of Events
Slate, who had been in Respondent's employ for 26
years, had been a shop steward for the Union, a member
of its negotiating committee, and the author of several
items in union publications, one of which, appearing on
January 30, 1967, appealed to workers not to cross picket
lines in case of a strike. When, on February 5, the Union
did call a strike, Slate acted as a picket captain. The strike
ended on February 9, and Slate returned to work the next
day. On February 11, while in the plant washroom, he
made an opprobrious comment in the presence of another
employee, Chandler, about the fact that he had worked
double shifts during the strike. The exact nature of the
comment is disputed, but it is agreed that it included the
thought that one who would do such a thing should have
"died" or "dropped dead." Chandler's father, also an em-
ployee of Respondent, was informed of this incident and
complained to management about it early in the morning
of the 12th. After questioning the younger Chandler, and
obtaining his version, Respondent suspended Slate for 3
days, and, when he returned to work, issued a warning
notice to him for " intimidating a fellow employee while
on company premises." Rule 4 of Respondent's plant
rules provides for immediate suspension or discharge for
the following conduct-
Abuse of Fellow Employees
Threatening, coercing, intimidating or interfering
with fellow-employees while on company premises.
B. Discussion
While the matter was not fully developed at the hear-
ing, it appears that at the time of the foregoing incident
the Union was recognized by, and bargaining with,
Respondent, and that since 1952, Respondent has had
contractual relations with the Union for all of its seven
plants, including the one here involved;" and, the General
Counsel did not offer any substantial evidence of union
" See references to such bargaining in G C Exh 2, and Resp. Exh. 2.
See also the Trial Examiner's Decision in Cone Mills Corporation, Cases
11-CA-3036 and 11-CA-3038, issued July 12, 1967 [169 NLRB
No 59], which appears to be the only other unfair labor practice pro-
ceeding against Respondent
168 NLRB No. 14
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
animus, in general, or of any animus toward Slate, in par-
ticular.
As to the circumstances leading up to his suspension,
Slate testified that during the morning of February 10, he
entered the plant washroom and saw Chandler there with
another employee, Blackman, who remarked to Slate that
Chandler had worked "20 hours straight" during the
recent strike, eliciting from the witness the comment that,
if Chandler worked 20 hours straight during the strike, he
ought to drop dead. Blackman fully corroborated this ver-
sion.
Chandler's version differed radically in that, for one
thing, he denied that Blackman was even present. Ac-
cording to Chandler, the only third person in the room
was Smith, and Slate's remarks were elicited by an
inquiry by Smith of Slate as to when there would be
another strike. Chandler testified that Slate rejoined, "We
might go on a strike next week. And right there is a damn
s-o-b- m-f-r come in here and work 20 hours a day.
Chandler added that, when he observed at this point that
he had not worked on February 9 because his "brother's
little baby died. 116 Slate remarked "You ought to have
died, too." While admitting that Chandler made some
reference to the fact that he had not worked on the 9th
because he had to attend a funeral, Slate denied that he
made any comment on that fact. Smith acknowledged that
he had been in the washroom on the occasion in question,
but insisted that he did not pay any attention to any con-
versation that went on and did not hear anything that
might have been said by Slate or Chandler, nor could he
say whether Blackman was present at the time.
The elder Chandler testified that, having learned of the
incident on February 10, he reported early the next
morning to one of Slate's supervisors, Turner, that Slate
had called his son a "m-f-g, skinny s-o-b." Turner sub-
stantially confirmed that he had received such a report
from the father, and that, when he questioned the son
about the matter, he attributed to Slate substantially the
same epithets and comments as were related in the
foregoing testimony by young Chandler. Turner there-
upon notified Slate that he was suspended pending
further notice.
Any attempt to resolve the foregoing conflicting
testimony encounters vexing problems. As Blackman
was not a union member and had, himself, worked behind
the picket line during the strike, he would seem to have no
ulterior motive for testifying falsely in support of Slate.
On the other hand, no reason appears why young Chan-
dler would falsely attribute to Slate such lurid epithets as
are here involved. He was a reserved, diffident individual,
and, apart from anything else, the malicious fabrication of
obscenities seemed out of keeping with his character.
Yet, if as young Chandler testified, Slate's offensive re-
mark was addressed to Smith in response to his inquiring
about the timing of the next strike, it is not understand-
able why Smith insisted that he paid no attention to, and
did not hear, any remarks that might have been made by
Slate or Chandler.
Fortunately, under the view that I take of the matter, it
is not necessary to decide which, if any, of the foregoing
witnesses was guilty of perjury, for, even if one credits
Slate's version, I am not satisfied that a violation of the
Act has been proved.
The General Counsel seems to rely essentially on two
alternative contentions, which may be characterized as
the "mistake theory" and the "pretext theory." The
General Counsel's "mistake" theory involves the appli-
cation of the rule of Burnup and Simms,' where the court
affirmed the Board's finding that an employer violated
Section 8(a)(1) of the Act by the discharge of union so-
licitors, even though the employer acted on a good faith
but mistaken belief that they had used coercive tactics.
There the court stated:
In sum, Section 8(a)(1) is violated if it is shown that
the discharged employee was at the time engaged in
a protected activity, that the employer knew it was
such, that the basis of the discharge was an alleged
act of misconduct in the course of that activity, and
that the employee was not, in fact, guilty of that
misconduct.
For the purpose of the instant contention, it is assumed
that Slate was suspended for misconduct connected with
a protected concerted activity," and the only issue is
whether he was in fact guilty of such misconduct. The
General Counsel appears to contend that he was not,
because he was suspended for addressing "obscenities"
to Chandler, which were not in fact uttered. However,
this contention overlooks the fact that the reason for
Slate's suspension in his warning notice was not the use
of obscene language but "intimidating" a fellow em-
ployee, and there is no preponderance of evidence that
any lurid epithets uttered by Slate were a factor in his
discharge. The General Counsel next contends that, in
any case, Slate's admitted "drop dead" remark was not
intimidating, pointing out that, although Turner testified
that he regarded Slate's remark to Chandler as objec-
tionable because it might "scare" him from coming to
work, he did in fact report for work on the 1 1 th. How-
ever, Turner may well have had in mind that tenor of
Slate's remark, rather that its actual effect, and, in any
event, whether the remark was or was not properly clas-
sified as a breach of the plant rule against intimidation is
not controlling here.
What is controlling is that Slate did, in effect, express
a wish for the death of a fellow employee, and there is no
preponderance of evidences that he was suspended for
obscenities allegedly uttered at the same time rather than
for the expression of such wish.
The General Counsel's alternative, "pretext" conten-
tion appears to be that, even if Slate made the remarks at-
tributed to him, with or without the various lurid epithets,
the true reason for his suspension was not such miscon-
duct but his prominence as a union adherent. As already
noted, Slate had served the Union in various capacities
and had been a picket captain during the recent strike. It
is apparently the General Counsel's view that, when the
washroom incident was reported by Chandler, Respond-
5 All the elisions are mine
6 It is not clear from Chandler's testimony what prompted him to men-
tion this. However , Slate's testimony suggests that it might have been
prompted by a comment by Blackman that Chandler was so fatigued by
his long hours of work during the stoke that he had to stay home and rest
on the 9th
7 N.L R B. v. Burnup and Simms, Inc., 379 U.S 21
9 The General Counsel's view is that Slate was engaged in a protected
concerted activity in expressing his disapproval of Chandler's strikebreak-
ing activity
9 Under the rule of Burnup and Simms, supra, the General Counsel has
the burden of proving that the employee was not in fact guilty of the
misconduct for which he was disciplined. See Rubin Bros Footwear, Inc,
99 NLRB 610.
CONE MILLS CORPORATION
ent saw an opportunity to visit reprisal upon Slate for his
union activity, under the guise of disciplinary action for
violating a plant rule. The General Counsel cites certain
evidence indicating that Respondent failed to conduct
any investigation of the incident before suspending Slate,
although he requested such an investigation. However, it
is clear that Respondent did investigate the matter during
his suspension,10 and Turner testified, in effect, without
contradiction, that it is Respondent's usual practice,
when some breach of a plant rule is reported, summarily
to suspend the employee or employees involved pending
investigation. Moreover, there is no other evidence that
Respondent's action toward Slate involved any disparate
treatment," and the circumstances next discussed are dif-
ficult to reconcile with the General Counsel's "pretext"
contention:
(1) Although, under the terms of the plant rule deemed
to have been violated by him, Slate might have been
discharged, he was given only a 3-day suspension. Such
restraint on the part of Respondent is not characteristic
of an employer who is seeking a pretext for discrimina-
tion.
(2) According to Slate's own testimony, when he was
recalled by Respondent on February 15, he rejected
Respondent's request that he sign the warning notice is-
sued to him, and, when he indicated reluctance to return
10 Turner interviewed Smith, who professed not to have heard Slate's
remarks, and Blackman admitted that Supervisor Fuller questioned him
about the incident during Slate 's suspension.
71
to work because of apprehension that he might again be
disciplined on the basis of an unverified complaint by
another employee, Honeycutt, one of Respondent's
higher echelon supervisors, assured him that this would
not be the case, and countered Slate's reiteration of the
same theme with repeated assurances that any future
complaint against him would be promptly investigated,
and with urgent requests that he return to work. Had
Respondent borne him any ill will because of his union
activities, it would have been a simple matter for it to
seize upon his chip-on-the-shoulder attitude, particularly
his refusal to sign the warning notice, as a pretext for
further suspension or discharge, or to construe his ap-
parent reluctance to return to work as a resignation of his
job. Instead, as is clear from Slate's own account, far
from resenting his attitude, Respondent made strenuous
efforts to appease him and to overcome his objection to
returning to work.
Under all the foregoing circumstances, I do not deem
it to have been proved that Slate's suspension was in
reprisal for his prominent role in the Union's activities.12
RECOMMENDED ORDER
It is hereby ordered that the complaint herein be
dismissed in its entirety.
i I Turner testified that he knew of no other instance where an employee
had engaged in comparable misconduct
11 Cf Davis Wholesale Co Inc, 165 NLRB 297