Cone Mills Corp.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 475 (N.L.R.B. 1974)

CONE MILLS CORP., REVOLUTION DIV. 475
Cone Mills Corp ., Revolution Div. and Textile Work-
ers Union of America , AFL-CIO, CLC. Cases
11-CA-5179 and 11-CA-5264
June 12, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On February 26, 1974, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings," and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 Administrative Law Judge and
hereby orders that Respondent, Cone Mills Corp.,
Revolution Div., Greensboro, North Carolina, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order,
substituting the attached notice for that of the
Administrative Law Judge.
, The Respondent 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
credibility 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, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After trial before an Administrative Law Judge, at
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other material aid or protection
To refrain from any and all of these
things.
WE WILL respect your above-stated rights
under the National Labor Relations Act.
WE WILL NOT, in violation of the National
Labor Relations Act, change the work shift
assignment of, or dismiss, any employee, or fail or
refuse to reinstate or rehire him or her because he
or she has joined the Textile Workers Union of
America, AFL-CIO, CLC, or any other union, or
engages in lawful activities on behalf of the
Union.
WE WILL NOT discriminate against any employ-
ee in regard to his or her hire, tenure, or terms or
conditions of employment, so as to discourage
membership in, affiliation with, sympathy for, or
lawful activity on behalf of Textile Workers
Union of America, AFL-CIO, CLC, or any other
labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce any employee in
the exercise of his or her right to self-organization.
WE WILL offer Loye M. Price, whom we
transferred from first shift to second shift in
March 1973 and then dismissed from our employ-
ment later that month because of her union
membership and activities, immediate and full
reinstatement to her former first-shift job (or, if
that job is no longer available, to a substantially
equivalent first-shift job), without prejudice to her
seniority and other rights and privileges; and WE
WILL also pay her backpay, plus interest, for any
pay she has lost because of our dismissal of her,
as well as for any babysitter fees expended by her
between the date of our transfer of her to the
second shift and the date of her dismissal.
All of you are free to join or not to join, the Textile
Workers Union of America, AFL-CIO, CLC, or any
other union, as you see fit, without any interference,
restraint, coercion, or discrimination by us in any
way, shape, or form.
which all sides had the opportunity to present CONE MILLS CORP.
evidence and arguments, the decision has been issued REVOLUTION Div.
that Cone Mills Corporation, Revolution Division, (Employer)
has violated the National Labor Relations Act. We
have therefore been ordered to post this notice and Dated By
carry out its terms. (Representative) (Title)
211 NLRB No. 63
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1624 Wachovia Building, 301 North
Main Street, Winston-Salem, North Carolina
27101, Telephone 919-723-2300.
DECISION
I. PRELIMINARY STATEMENT ; ISSUES
STANLEY N. OHLBAUM, Administrative Law Judge: This
consolidated proceeding I under the National Labor
Relations Act as amended, 29 U.S.C. Sec. 151, et seq.
("Act"), was tried before me in Greensboro, North
Carolina, on various dates between June 26 and August 14,
1973, with all parties participating throughout by counsel
or other representative and afforded full opportunity to
present evidence and contentions , as well as to file briefs
subsequent to conclusion of the trial . Briefs were subse-
quently received after extension of time for filing thereof
upon unopposed application of counsel. The substantial
record and able briefs have been carefully considered.
The principal issues are whether Respondent has
violated Section 8(a)(1) of the Act through various acts of
interference , restraint, and coercion aimed at its employ-
ees, including interrogations concerning their and other
employees' Union membership and sympathies, directing
employees to report on Union recruiters, directing employ-
ees to withdraw from the Union and harassing them for
failing to do so, and threatening them concerning their
Union adherence; and whether Respondent has violated
Section 8(a)(3) and (1) through discriminatory personnel
practices toward two employees, including a warning
notice, an onerous work and undesirable shift transfer, and
discharge.
Upon the entire record and my observation of the
testimonial demeanor of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
II. JURISDICTION
At all material times, Respondent has been and is a
North Carolina corporation engaged in manufacturing
textile products, owning and operating the plant involved
in this proceeding , known and designated as its Revolution
plant, located at Greensboro, North Carolina. In the
course and conduct of its business at that plant, during the
representative year immediately preceding issuance of each
of the complaints, Respondent sold and shipped directly in
interstate commerce therefrom to places outside of North
Carolina goods valued in excess of $50,000, and also
Case I I-CA-5179 Charge filed December 26, 1972; complaint issued
February 8, 1973. Case 11-CA-5264: charge filed March 15, 1973, amended
May 3, 1973; complaint issued April 30, 1973 The cases were consolidated
by the Board' s Regional Director on April 30, 1973.
during the same period caused to be shipped directly in
interstate commerce to said plant goods and raw materials
valued in excess of $50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act; and that the
Charging Party Union has at all those times been and is a
labor organization within the meaning of Section 2(5) of
the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Union organizing activity commenced in Respondent's
textile mill in Greensboro in the fall of 1972, with active
participation by various of Respondent's employees. The
various alleged unfair labor practices to be considered
occurred within the frame of reference of that organizing
campaign.
B. Section 8(a)(1): Alleged Interrogations and
Miscellaneous Other Alleged Acts of Interference,
Restraint, and Coercion
The consolidated amended complaint2 alleges that from
November 1, 1972, through March 1, 1973, Respondent
engaged in various acts of interference , restraint, and
coercion in violation of Section 8(a)(1) of the Act,
including interrogation of employees concerning their and
other employees' union membership and sympathies,
directing employees to report who was trying to obtain
union card signatures, directing employees to sign union
withdrawal forms and harassing them for not doing so, and
threatening them in relation to their union adherence.
Evidence concerning these allegations was supplied
through testimony of witnesses Isley, Fuller, George,
Caldwell, and Hayes. Thomas Lee Isley, who was in
Respondent's employ for over 6 years until December 18,
1972, as a helper in the package dye department, second
shift (3 to 11 p.m.) under Dye House Supervisor Tim Little,
testified that in the early evening of December 11, 1972,
when he entered the dyehouse men's room he encountered
fellow-employee Fuller and Dye House Supervisor Little,
and that Little asked him (Isley) what he thought about the
Union, to which Isley responded that he did not wish to
talk about it. According to Isley, who was active on behalf
of the Union, with the advent of the Union campaign Little
had become "very nasty" to him and was "constantly on
my back wherever I went." Isley's discharge on December
18-a week after the described bathroom episode-is not
here claimed to have been in violation of the Act.
Respondent's former second shift package dyehouse
utility man John E. Fuller3 testified that during the fall
1972 union campaign he joined the Union. Fuller claims
that about a week before Isley's discharge, i.e., on or about
December 11, 1972, he was called to the office of Dye
House Supervisor Little, who asked him what he thought
2 Pars. 7(a) through (i), 13, and 15
3 According to Fuller, he was employed from June 12, 1972 , to January
26, 1973 , when he had to quit because Dye House Supervisor Little refused
him time off to study for his high school examinations.
CONE MILLS CORP., REVOLUTION DIV. 477
about the Union, what he thought it could do for him, and
whether he knew who was giving out Union cards; at the
same time, Little tallied up for Fuller what the Union
would allegedly cost Fuller in dues, plus fines and strikes,
and asked him if he knew what the union had done at
another plant. Little also allegedly stated to him and
fellow-employee Snyder (who had walked in and reported
that Isley had "tried to force [me] to sign a [Union] card")
that "If you want your [Union] card back, you could fill
out some kind of form that [I] could give [you]." Fuller,
who had not indicated he had signed a union card,
remarked, "I don't know yet." Fuller asserts that about 2
days later, in the restroom, Supervisor Little again asked
him whether he wished to have his union card back; Fuller
declined the offer. Fuller claims that at this point, his
fellow-employee Isley entered the room and that Little
asked Isley for his views concerning the Union, and that
Isley made no comment. Thereafter, according to Fuller,
Supervisor Little continued to ask him a number of times
during November and December, 1972-Fuller places it at
around five times-whether he had signed a union card,
who else had signed a card, who was distributing cards,
and to report to him who was giving out or signing cards;
at the same time , Little allegedly persisted in questioning
him about his union views, insisting that the Union was no
good and soliciting him to withdraw from it. Although, still
according to Fuller, he was unsure of whether he had ever
told Little he had signed a union card, at some point he
indicated to Little that he was for the Union, remarking, "I
didn't have nothing to lose," to which Little replied, "[You
have] a hell of a lot to lose." Although Fuller also never
indicated to Little that he wanted his union card back, on
the last (according to Fuller, around the fifth) occasion
when Little raised the subject, Fuller claims he said to him,
"Don't ask me about the union no more." Shortly
thereafter, Fuller asserts, Little angrily directed him to
perform extra duties, including the onerous task, just
before quitting time, of obtaining a 200-pound load of dye
for the succeeding (i.e., third) shift.4 On January 24, 1973,
Fuller testified, he was again asked by Little whether he
would withdraw from the Union, and declined. Two days
later, on January 26, needing time off to study for his high
school examinations, he failed to obtain it even though he
had an explanatory slip from his school principal, and
quit.5
Respondent's third-shift spinning department doffer
Ruth George, who started with Respondent as a spare
hand in September 1971, testified that in November or
December 1972 in her department, Spinning Department
Supervisor James Fleetwood approached and asked her if
4 Fuller concedes that he had done this before, but according to him he
had never been asked to do this "near quitting time ." However, he also
concedes that on the occasion in question he was (and still is) unaware of
possible third-shift needs that night.
5 It is not here claimed that this termination of Fuller's employment
involved any violation of the Act on Respondent's part. According to
Fuller, when he showed his school principal 's slip to Jarvis, a member of
Respondent's personnel office , Jarvis referred him to Dye House Supervisor
Nick Tsouvelakas. When Fuller could not locate Tsouvelakas , he simply
"quit [and ] walked out."
B On cross-examination , George testified that subsequent to the above
episode she bid for and obtained a better job on the first shift, still under
she had signed a "blue [i.e., Union] card"; she replied that
she had and that "I would sign two if I had them.' 16
Respondent's first-shift doffer, Craven Caldwell, testified
that around March 1, 1973, his shift foreman, Everet Mills,
told him that the Union was trying to "deceive" him and
get his money, but would not make good on its promises;
that when it would strike "who [is ] going to pay your
bill[s]?" Caldwell responded that there would be no strike
unless it was voted and that he did not think the employees
would vote it. Also according to Caldwell, at around the
same date, while in Department Head Carlton C. Butler's
office on an unrelated matter, Foreman Mills remarked,
"While we are in here , let's talk about the union," and
asked him how he felt about it, to which Caldwell's
response was that with a Union he would probably receive
better treatment on job bids in view of his seniority.
Thereupon, according to Caldwell, Butler interjected that
he was "sick and tired of hearing about the union." On
cross-examination , Caldwell conceded that Butler did not
indicate any consequences in case of more union talk; and
that no adverse action has been taken against him in
relation to the described episode.?
Finally, Respondent's third-shift package dye depart-
ment quill shader8 Barbara Hayes describes herself as
active in the union campaign starting around December 5,
1972, soliciting members and distributing union buttons
and other material. On or about December 7, according to
her testimony, while she was in a plant smoking booth with
other employees, Spinning Department Supervisor Bobby
Brady questioned her about her union views, eliciting from
her the response that she was for the Union, and told her
and the others that the plant had better benefits than other
plants-which Hayes disputed-and and that they
should not sign union cards. No other employee was
produced to corroborate this testimony of Hayes. Also
according to Hayes, around March 1, 1973, she was called
to the office of her Shift Supervisor Gene Lovett, who
asked her how she felt about the Union, to which she
replied that she was for it. According to her further
testimony, when Lovett quizzed her on the subject of
(industrial) violence in South Carolina, her response was
that she was for the Union but against violence. There-
upon, as she testified, Lovett continued to ply her with
questions concerning her union views, in which she
remained steadfast; and also persisted in expressing his
own antiunion sentiments . On cross-examination, Hayes
conceded that during this discussion Lovett assured her
that it was her right or privilege to do whatever she wanted
with respect to the Union.
For Respondent's part, each of its officials or supervisors
implicated in the described episodes testified, disputing
Supervisor Fleetwood ; but that, although since the described episode she
has undergone "harassment" by Fleetwood concerning alleged latenesses
(which she denies), she does not consider herself as having been
"mistreated" or discriminated against. She was also a union observer at the
Board-conducted election of March 15 , 1973, which the Union lost.
7 Caldwell did, however, testify on cross-examination that he has since
received some type of adverse personnel action for "being out too much"
for sickness and in relation to a subpoenaed court (not N.L.R.B.)
attendance , and that he complained about it. There is no allegation or
indication that these are in any way related to the instant proceeding.
8 I.e., yarn color matcher.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and denying his role as claimed by the employee witnesses.
Thus, with regard to the alleged episodes recounted by
Isley, Dye House Second Shift Supervisor Timothy Allen
Little acknowledged participating in conversations in the
men's room in December, 1972, with three of his five
subordinates-Fuller, Isley, and Snyder. Unsure of who
started the first of these , Little remembers talking about
the cost of union dues with Fuller, when Snyder (Snider)
entered the men's room complaining of being "pressured
into signing a union card" by Isley, at which Fuller
volunteered that he, too, had signed a card. In this posture
of the situation , under the impression that both Snyder and
Isley had been "pressured into signing a union card"-Lit-
tle offered to secure information for them, if they wanted
it, as to whether and how they could get their cards back or
cancel them . According to Little, Snyder indicated he
desired to get his card back but Fuller made no specific
comment. A few days later, according to Little, again in
the men's room, Little asked Fuller whether he had seen a
new poster on the bulletin board and whether he had
received his copy of a letter from "Mr. Cone" (apparently
Respondent's principal). At this point, Isley came into the
men's room, punching his first into his other hand and
remarking he had been "hitting the yam too hard" 9 and
was going to "bust some a- the first person who came
along." Little stoutly denies asking Fuller or Isley what
they thought about the Union. Little also denies assigning
any additional or unusual work tasks to Fuller after these
toilet episodes. Acknowledging that a few days later he
asked Fuller about a half hour before quitting time to
procure a drum of dye (weighing about 200 pounds) so that
the next shift would have it on hand for uninterrupted
production, Little explains that employees usually take
about 15 minutes to clean up before quitting time , and that
this assigned task took no more than 10 minutes , so that
Fuller's cleanup time was not interfered with nor his
quitting time delayed ; and that it was regular company
operating procedure to have dye on hand for the
succeeding shift (so that the shift could start work
promptly), and that he instructed Fuller-the usual and
only employee whose job it was to do this-to obtain the
drum only because he (Little) noticed there was no dye on
hand, the drum being empty, near the end of the second
shift. Little firmly denies ever asking Fuller whether he had
signed a union card , who was passing out cards or to find
out who was doing so, whether he wanted his card back, or
his or other employees ' union sentiments ; and he denies
B i.e., apparently using the yarn bolts as punching bags.
iu 1 would not in any event regard a statement by Little that an employee
had "a lot to lose" from union adherence , at any rate under the
circumstances here described , as violative of the Act, it being a mere
protected expression of opinion . See, e g ., Thomas v. Collins, 323 U S. 516,
537-538 ; N.L.R B. v. Virginia Electric and Power Company, 314 U.S. 469;
N L.R.B. v. M & W Marine Ways, Inc., 411 F.2d 1070, 1073 (C A . 5, 1969);
AAA Lapco, Inc., 197 NLRB 274.
11 Snyder did not testify
is On direct examination , Mills testified that he had expressed the
opinion to employees that the plant was paying as much or more money as
and had better benefits than a unionized plant . On cross-examination, Mills
testified that when two employees approached him and inquired how they
could obtain their union cards back , he answered that this could be done by
writing a letter to the Union . It is not alleged or claimed that either of these
statements or episodes violated the Act.
remarking to him that he had a lot to lose from union
adherence.10 In essence, Little flatly disputes the testimony
of Fuller and Isley" or gives their conversations an
altogether different cast.
On the matter of the described "interrogation" of Ruth
George, Spinning Department Third Shift Supervisor or
Assistant Overseer James Fleetwood denies that he ever
asked George about signing a union card or as to her union
sentiments , or ever spoke to her about the Union.
According to Fleetwood, George made it openly known,
including to him, that she was "100 percent for the Union."
Notwithstanding this, when-following the Union elec-
tion-she bid for a better (i.e., doffer's) job, she obtained it
on his recommendation. On cross-examination, Fleetwood
candidly conceded that when employees-including
George (whose union views and union membership card
solicitation activities had been reported to him by other
employees)--asked him how he felt about the Union, he
indicated that he personally "didn't like [its] batting
average" but that the employees should decide for
themselves.
Concerning employee Caldwell's described testimony,
his Shift Foreman Everet Mills flatly denies ever question-
ing Caldwell about his union membership or views.12
With regard to the alleged episodes of interrogation
narrated by Barbara Hayes, both of the supervisors
implicated by her testified in direct and firm contradiction
to her testimony. Thus, Spinning Department Third Shift
Assistant Overseer and Supervisor Brady swore solidly that
he never-neither on or about December 7, 1972 (as Hayes
claims), nor at any other time-questioned Hayes about
the Union, individually or in a group. On comparative
demeanor observations alone, Brady's denial was more
impressive than Hayes' assertion. Furthermore, I find it
difficult to believe that Supervisor Brady, as I observed
him, would engage in an interrogation of Hayes in the
presence of other employees, as narrated by Hayes.
Moreover, as indicated above, none of the employees who
allegedly (according to Hayes) witnessed the episode was
produced to corroborate Hayes or to rebut Supervisor
Brady. Under these circumstances as well as on compara-
tive testimonial demeanor observations preferring the
testimony of Brady, I find that it has not been established
by a fair preponderance of substantial credible evidence
upon the record as a whole, as required, that the alleged
episode of interrogation occurred.13 Hayes' further testi-
mony, which has also been set forth above, involving
alleged interrogation by Shift Supervisor Lovett, is likewise
As for Caldwell's testimony concerning Department Head Butler's
remark in the presence of Mills that he was "sick and tired of hearing about
the union ," Mills did not deny it and Butler did not testify . However, I find
that the remark, even if made , did not constitute a violation of the Act,
being a mere offhand emotional expression of opinion or state of mind with
no coercive intent , portent, or effect . I would accordingly in any
event-even crediting Caldwell's testimony in this aspect-grant Respon-
dent's motion , upon which decision was reserved at the trial , to dismiss
paragraph 7(i) of the consolidated amended complaint alleging the remark
to be violative of Section 8(a)(1).
13 I perceive nothing unlawful about the remark ascribed to Brady by
Hayes, that the plant had better benefits than other plants. As to this, Brady
frankly conceded that , after he was informed by his supervisor, Department
Head Carlton Butler , that it was permissible for him to express his personal
opinions about the Union to employees , he did let those under him (of
whom Hayes was not one ) know his own views , namely that unionized
CONE MILLS CORP., REVOLUTION DIV. 479
strenuously contested by Lovett, who showed himself to be
an extremely persuasive and unshaken witness.14 Under
the circumstances, the best I can say is that in the resulting
state of the record, with assertion concerning interrogation
countered by credible firm denial, I would be unjustified in
crediting Hayes rather than Supervisor Lovett (whose
testimonial demeanor was in any event more persuasive to
me than that of Hayes), and I therefore do not do so.
In sum, then, in this aspect of the case there is a direct
conflict between the testimony of the indicated employees
and that of various company officials or supervisors.
Although I was fairly well impressed with the testimonial
demeanor of the employees, I was in this phase of the case
better impressed with that of Respondent's officials and
supervisors, who testified on the indicated subjects with
unshaken and convincing firmness. Under the circum-
stances , I am unable conscientiously to say that I am
persuaded by General Counsel's proof as to these matters,
since the scales not only do not tilt in his favor but tilt in
Respondent's favor. Thus, in the described aspects of the
case, General Counsel has failed to meet the burden of
persuasion and proof which is his, and as to those matters
the allegations of the complaint 15 should be dismissed. See
AAA Lapco, Inc., 197 NLRB 274; Brotherhood of Painters,
Local 76 (Gomez Painting & Decorating Co.), 182 NLRB
405; Blue Flash Express, Inc., 109 NLRB 591, 592.
C. Section 8(a)(3): Alleged Discriminatory and
Coercive Warning, Work and Shift Transfer, and
Employee Discharge
The consolidated amended complaint further alleges is
that on various dates from February 6 to March 26, 1973,
Respondent violated Section 8(a)(3) and (1) of the Act by
discriminatorily and coercively issuing a written warning to
an employee (Barbara Hayes); and by assigning more
onerous work to and thereafter transferring another
employee to a less desirable shift and finally discharging
and failing to reinstate her (Loye M. Price).
1. Alleged discriminatory and coercive warning to
employee: Barbara Hayes
On February 23, 1973, Respondent's third-shift package
dye department quill shader Barbara Hayes-who figured
in alleged incidents of interrogation which have already
been described but not found-received a warning slip
which it is claimed was issued discriminatorily and
coercively in violation of Section 8(a)(3) and (1). The
warning slip (G.C. Exh. 15), issued by Shift Supervisor
plants did not enjoy more benefits than they did-a version which I credit
in preference to that of Hayes. Although it is neither alleged in the
complaint nor otherwise claimed that such a remark-even even Hayes'
version-constituted a violation of the Act, I would in any event find it not
to be . Insofar as concerns the remaining remark ascribed by Hayes to
Brady, namely that he told the employees not to sign union cards , it is flatly
denied by Brady. Although this likewise is not alleged in the complaint to
have been made or to be violative of the Act , in any event I credit Brady's
denial that he said it, again being mindful that none of the other employees
who allegedly were present was produced to corroborate Hayes or to
dispute Brady, either on General Counsel's direct case or on rebuttal.
14 Lovett (no longer in Respondent 's employ) candidly concedes that he
did indeed discuss the Union with Hayes-an openly avowed advocate
thereof-in his office , explicitly reassuring her that she had the right to be
Lovett (about a week before the incident of interrogation of
her by Lovett alleged by Hayes but not here found), states:
You are being given this written warning for being
away from your job unnecessarily between 11:05 and
11:35 the night of Feb 21/22. There was a normal
amount of work available at this time. Continued
neglect of work or failure to comply with company
policies will result in termination of employment.
Employee's Statement: Barbara Hayes refused to sign
warning. (sgd.) Gene Lovette. She said she understood
what this warning meant.
According to Hayes, the circumstances under which this
warning was issued were as follows. On the evening in
question (February 21, 1973) she left the package dye
department around 11 p.m., reaching the spinning depart-
ment around 11:05. Since, as she explains it, she did not
find the machine in operation there, she waited for
Spinning Department Supervisor Brady, who arrived
around 11:15, followed about 10 minutes later by the
machine operator. According to Hayes, she "wait[ed]" and
"look[ed]" for Brady since there was no chalk there for her
use in marking the yarn and she was unable to obtain any
without a signed order from the supervisor. When Brady
reported to Shift Supervisor Lovett in essence that Hayes
had been doing nothing since 11:05, Hayes denied this.
Nevertheless, she received a warning slip-according to
her, the first and only one she has ever received-concern-
ing this episode, for staying in the bathroom as well as
being off the job too long.17 Hayes conceded on cross-
examination that while "waiting" in the spinning depart-
ment on the. occasion in question, she went to get a
"Coke."
Respondent's witnesses provide a different version of
this episode. According to Spinning Department Third
Shift Assistant Overseer Brady, at around 11:03 p.m., or a
few minutes after the start of the third shift on the evening
in question, he observed Hayes smoking in the smoking
booth in the quill room in his department. He went about
his duties. When he returned around 11:10 and saw Ms.
Hayes still in the smoking booth, he reported this to Shift
Supervisor Lovett around 11:15. At 11:25 he observed
Hayes still in the smoking booth, this time with a drink in
her hand. He later saw Shift Supervisor Lovett talking to
Brady. Brady explains that chalk is used for marking yarn
which has been shaded-about 5 or 6 yarns out of 75-and
that as a quill shader Hayes could work "all night" without
for it, but that she had not heard all there was to say. Hayes apparently
expressed herself freely and forcefully , adhering to her own strong views.
This accords essentially with Hayes' own testimony on cross-examination.
But Lovett steadfastly denies that he ever questioned Hayes about her union
views (which were presumably a matter of common knowledge in the plant,
according to her own description of their nature and extent , so that
interrogating her on that subject would have been superfluous), and on
demeanor observations I credit his denial. It is not alleged in the complaint
nor claimed that Lovett's other remarks were violative of the Act.
15 I.e., consolidated amended complaint pars. 7(a) through (i).
16 Pars. 8 through 15.
17 It will have been noted that the warning slip, set forth above, contains
no mention of excessive bathroom use or absence.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it just so long as the yam is marked before being released
to another department.
Respondent 's former Dye House Shift Supervisor Melvin
G. Lovett-no longer in Respondent 's employ-testified
that on the occasion in question , when he asked Hayes,
soon after 11:20 p.m ., why she was not on the job yet and
she claimed she had no chalk , he showed her a full box in
its usual place in a nearby cabinet .18 Lovett also showed
Ms. Hayes that there were no quills on hand , to which she
replied that they might already have been picked up (she
claimed to have shaded six boxes already, but there was
neither evidence of that nor of any pickup, and she had
nothing marked on her production sheet ). Lovett explains
that the consequence of Hayes' not keeping up with her
quill shading work would be to bring weaving department
operations to a standstill . He had about 6 or 7 weeks
previously given an oral warning to Hayes, also for not
being on the job , on that occasion for standing around
talking to weave room employees and keeping them from
their work . 19 On the occasion here in question, when
Lovett gave Hayes the written warning set forth above, she
refused to acknowledge receipt of it in writing , accusing
him of issuing it because she was for the Union ; Lovett
denied this-she had previously told him she was "100
percent for the union" and his response had been (as
conceded by Ms . Hayes at the trial) that this was her "right
and ... privilege."
As of the date of her testimony in the instant proceeding,
Hayes was still employed at her regular job in Respon-
dent's plant.
Upon Hayes' own testimony , as above recounted, I
would find that no violation of the Act has been
established , since whether or not Respondent was justified
in issuing a warning to her under the circumstances
described , it has not been demonstrated that it was issued
for discriminatory or coercive reasons in violation of the
Act. Union membership does not insulate from work
criticism or even discharge . Cf. N.LR. B. v. Bangor Plastics,
Inc., 392 F.2d 772, 777 (C.A. 6, 1968). Beyond this,
however, preferring the quality of the testimony adduced
by Brady and Lovett and therefore crediting it, upon the
record presented I find the episode to have occurred as
described by them and that the warning slip was issued for
the reasons assigned by them and not because of any
Union or other activity on the part of Hayes falling within
the Act's protection , nor otherwise in violation of the Act.
2. Alleged discriminatory and coercive personnel
actions with regard to, and discharge of, employee:
Loye M. Price
It is alleged that, for discriminatory and coercive reasons
in violation of the Act , on or about February 6 Respondent
assigned more onerous work to its employee Loye M.
Price, on or about March 1 transferred her to an unwanted
shift, and on or about March 26 finally dismissed her from
its employ.
a. Employee's version 20
Loye Price entered Respondent 's employ on October 12,
1971. When she went to Respondent 's employment office
on that date , she was accompanied by her husband, Albert
Price , who also works for Respondent but at a different
plant . Since the Prices have four small children and Mr.
Price works second shift , Mrs. Price was unable to work
other than the first or third shift , with a preference for the
first (or, possibly , first and third). Indeed, even then their
youngest child, who especially requires a watchful pres-
ence, is alone for about 5 minutes when both Mr. and Mrs.
Price are away during the change of shift . When Mrs. Price
came in for her job interview , she had an express assurance
that she would be given "a first shift job." 21 Mrs. Price,
with her husband 's assistance , filled out an employment
application card (Resp . Exh. 3) in her handwriting in
pencil, specifying thereon that she preferred the first shift.
Various writings were thereafter added to that card in ink,
but none by Mrs. or Mr . Price ; crediting the testimony of
Mr. and Mrs . Price, I expressly find that none of those
entries in ink was written by either Mrs. or Mr. Price,
including specifically the word "any" which appears in ink
in the box relating to shift preference.
After filling out the employment application card in
pencil, as indicated , Mrs. Price was interviewed-in the
presence of Mr. Price-by Respondent 's Assistant Person-
nel Manager Paige Stout, to whom Mrs . Price explained
the situation about her children and why she could not
work on the second shift . Stating, "I understand that,"
Stout hired Mrs. Price for the first shift . When she was
hired, Mrs. Price was not told nor was it in any way
indicated to her that her employment or assignment to the
first shift was temporary . After a brief period as a spare
hand pending training as a battery filler22 (the job for
which she was hired), Mrs. Price was placed on a first-shift
battery filling job, at which she continued until March 29,
1972, when in the course of that work she sustained an
injury to her foot. Notwithstanding this injury , Mrs. Price
continued at her work for several months until early July
Is Supervisor Brady swore at the trial that at no time during this entire
episode , from the moment he first saw Hayes , had he, Lovett, or anybody
else authorized to do so (a written order is necessary) placed any chalk in
the cabinet-indicating it was already there , as Lovett testified.
19 Lovett had also previously issued a written warning to Hayes for
lateness.
to Except to the extent otherwise indicated, the account which follows is
based upon the testimony of Loye and Albert Price.
21 According to credited testimony of Albert Price , this assurance was
from Respondent 's personnel man, Larry Laws, who was unexplainedly not
produced by Respondent to dispute this testimony in any way.
22 A battery filler loads or fills "batteries" on looms . A "battery," located
on the right side of the loom, is a collection of 21 or 22 bobbins , each of
which contains thread . When the "battery" is loaded with bobbins, it
provides a continuous supply of yam for the loom. The battery filler's
bobbins are loaded on carts or buggies weighing perhaps 75 or more
pounds, which are pushed around by the battery filler , whose job thus
requires constant hand-pushing of these carts as well as continuous walking
from loom to loom.
CONE MILLS CORP., REVOLUTION DIV.
1972, at which time she was ordered off her feet and work
by a medical specialist.23 Mrs. Price returned to work
toward the end of December 1972, on a trial basis at a
sitting job24 until around January 25, 1973, when her
physician indicated (Resp. Exh. 1) she could be placed to
work standing no more than 4 hours per day. However,
Mrs. Price was not assigned to work requiring standing
until February 6, immediately upon her return to the plant
from a National Labor Relations Board hearing which she
had been subpoenaed to attend as a union witness 25
Mrs. Price had joined the Textile Workers Union of
America, AFL-CIO, CLC, Charging Party herein, in late
January 1973. Pursuant to a subpoena requiring her
appearance as a union witness, Mrs. Price attended a
NLRB preelection hearing on February 6, 1973, at which
Respondent's Assistant Personnel Manager Stout and his
superior, Personnel Manager Billie G. Jarvis, were also
present.26 Upon Mrs. Price's return to the plant, at around
1:15 p.m., she was immediately directed by First-Shift
Supervisor Charles E. Meyers to discontinue her sedentary
work and to start filling batteries. When she at first
demurred at this precipitate change to the fully standing,
"more or less a running job" but certainly one requiring
continuous walking, she was told they were shorthanded.27
From then on, Mrs. Price was kept at this work of battery-
filling for 4 hours a day (the remainder of the time being
on sedentary work, as a push-offer or as a stripper).
Shortly before her attendance at the February 6 NLRB
hearing, Mrs. Price had commenced wearing "Vote Yes"
and "I support the TWUA" buttons in the plant. On
March 1, Mrs. Price was called to the office by
Department Head Carl Purvis, who informed her that she
was being transferred to the second shift (i.e., the shift on
which she had previously made it clear she was unable to
work because her husband was working on that shift and
that their four small children would be left unattended).
Mrs. Price said she could not work second shift, but
indicated she could work third. Shortly thereafter her
foreman, Meyers, announced to her, "Second [shift] or no
job." Under the circumstances, Mrs. Price arranged to
have her aged mother (near 70 and on crutches) babysit
with the children, at $25 per week. At the same time-
shortly prior to the union election scheduled for March
15-Mrs. Price made a recording for the Union's "Fact
Line," for use by the Union on the telephone in its
23 I,e., Dr. Carter, an orthopedist. According to Mr. Price, Dr. Carter
found Mrs. Price 's foot to be in such serious condition that she was unable
to return to work for 5 1/2 or 6 months, after another physician to whom
Respondent 's personnel office had referred her had earlier indicated (Resp.
Exh. 24) she could return to work.
24 I.e., push -offer, cleaning quills . Mrs. Price's physician had indicated
on December 26, 1972, that she could return to work "on a sit-down job
only"(Resp. Exh. 21).
25 This is confirmed by Respondent's records. According to Respon-
dent's notation on the reverse side of Dr. Carter's permission for Mrs. Price
to start to work 4 hours standing , Respondent "actually began using her 4
hrs. standing on 2-6-73."
28 Mrs. Price did not testify at that hearing.
27 General Counsel witness Hilda Price, unrelated to Mr. or Mrs. Price,
and as of the date of the instant trial still (and since 1966) in the employ of
Respondent, also attended the February 6 NLRB preelection hearing as a
subpoenaed witness. Hilda Price testified credibly that upon her return to
the plant from that hearing, Department Head Carl Purvis-who figures
prominently in the shift transfer and discharge of Mrs. Loye Price to be
481
preelection campaign, describing her experiences with the
Company since she had appeared at the NLRB hearing as
a subpoenaed witness and her transfer to the unwanted
second shift with the consequent necessity of hiring a
babysitter and thereby reducing the family income. When
this recorded message began to be used on the telephone,
Department Head Purvis informed Mrs. Price, "I heard
you[r] telephone message . . . You are a good telephone
talker. You are also a good liar." Thereafter, while at a
"Coke" machine with four coworkers, Mrs. Price alone of
the four was singled out by a supervisor and ordered back
to work without a drink.
On March 20, 1973,28 Mrs. Price's mother, who had been
babysitting for the Prices since Mrs. Price's unwanted
transfer to the second shift on March 5, was hospitalized
because of serious illness . Unable to obtain another
babysitter, Mrs. Price notified Department Head Purvis,
telephoning him every day for 5 successive days, describing
the situation to him and exhorting him to permit her to
work on either the first or the third shift. When Purvis
claimed he did not "need" anybody "battery filling" on
either of those shifts, Mrs. Price reminded him that there
were various other jobs, enumerating them, for which she
was qualified, but Purvis turned her down, insisting that
any continued failure by Mrs. Price to return to the
second-shift battery-filling job to which she had been
transferred would constitute "unexcused absence" under
the Company's "rules ." Unaware of any such "rule," Mrs.
Price was unable to obtain any booklet or publication
describing it, being told that she "wasn't qualified for a
rule book .1129
On March 25 or 26, Mr. Price telephoned Purvis and
advised him that he and Mrs. Price were utterly unable so
far to obtain a babysitter-necessitated by Respondent's
transfer of Mrs. Price to the unwanted second shift-ex-
cept at a prohibitive $40 per week; and that Mrs. Price
could work on the first shift for which she was hired or on
the third shift. Purvis thereupon remarked that Mrs. Price's
job application indicated "any" shift-which Price firmly
disputed.3o
Mrs. Price subsequently received a "separation notice"
from Respondent indicating she was "discharged for
misconduct (connected with work)" 31 because of "five
unexcused absences on 3-26, 3-27, 3-28, 3-29, and
3-30-73. Unacceptable reason for absence: Lack of
described-questioned her regarding the subpoena , how she had obtained
it, and how long she was there . Hilda Price also swore that subsequently,
around the end of April, she was called to the plant office by Superinten-
dent or Plant Manager Ray Stallings , who in the presence of Purvis
questioned her on the subject of what she "thought the union could do for
me that the company couldn't" and concerning related matters . Stallings
did not testify here.
28 The Union had lost the March 15 representation election.
29 Mrs. Price also testified that certain "rules," which she was unable to
remember or to precisely reconstruct, had been posted when she was first
hired in October 1971, and possibly later. (These were not produced by
Respondent at the trial .) She recalled obtaining an employees' handbook
when she was first employed, but could not locate it, not was she successful
in attempting to obtain another; nor was any produced by Respondent at
the trial.
30 Findings concerning this, supporting Price's position, have been made
above.
31 Mrs. Price was by reason thereof presumably rendered ineligible for
unemployment insurance benefits.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
babysitter." Mrs. Price has not been reinstated or rehired
since her termination.
b. Respondent 's version
Concerning what took place at- Respondent 's prehire
procedures when, as Mr. arld Mrs . Price testified, Mrs.
Price explicitly itated she would be unable to accfpt a job
or work on the second shift , and indicated a preference and
was hired for the first shift , Respondent produced at the
trial only one witness having any part in those procedures
-namely, its former Assistant Personnel Manager at the
revolution division , Paige Stout (Mr. Stout is now em-
ployed at Respondent 's main office annex), who participat-
ed only to the extent of interviewing Mrs. Price after the
preliminary procedures including her filling out of the
employment application from on which, as already
described , she indicated first shift and some other person32
without her knowledge or authorization at some subse-
quent time added the word "any" in ink.33 Without
explanation, Respondent failed to produce at the trial the
clerk or clerks who interviewed Mrs. Price-and who,
according to Assistant Personnel Manager Stout, elicited
from Mrs. Price her shift preference-thus leaving the
testimony of Mr. and Mrs . Price in that regard uncontra-
dicted . The testimonyof Assistant Personnel Manager Stout
concerning his prehire interview of Mrs . Price itself leaves
the account of Mr . and Mrs . Price essentially uncontradict-
ed, since Stout testified at the trial that he is not only
unable to recall the critical conversation in question but not
"even the gist of it" -even after attempting to refresh his
recollection by studying Mrs. Price 's employment applica-
tion form (Resp . Exh. 3). It will be recalled that I have
already credited the accounts of Mr . and Mrs. Price
concerning Mrs. Price 's prehire procedures and interview,
including her explicit ruling out of the second shift and her
being hired for the first shift 34
Although Respondent adduced much testimony35 at-
tempting to throw doubt on Mrs . Price's efficiency , or even
qualification , as a battery filler, it is unnecessary to dwell
32 Identified by Assistant Personnel Manager Stout as Mrs . Edna Jones
of Respondent 's Central Employment Office . Without explanation , Respon-
dent did not call Mrs. Jones to testify.
33 Although Department Head Purvis also offered some testimony on
this subject, it was clearly not based on personal participation or knowledge
since he was not there , took no part in the hiring process, and conceded he
neither hired Mrs. Price nor spoke to her before she was hired.
A "personnel profile" (Reap. Exh. 20A) on Mrs. Price , maintained by
Respondent's Personnel Secretary Brenda Hatcher , concededly does not
reflect actual facts (e.g., shift actually worked-in Mrs . Price's can, the first
shift), but at best only what is reported to Hatcher or what she is told to put
down by some unspecified person or persons at some unspecified time
under unspecified circumstances , Hatcher conceding that she merely puts
down what she is told, with no knowledge of or necessary relationship to the
actual facts. (In any event , it is to be noted that that document refers to Mrs.
Price's shift as "3"-certainly not the second shift, which Mrs. Price had
explicitly ruled out. Had Mrs. Price been transferred from the first to the
third shift in March , she would presumably have been able to keep her job,
since she and Mr . Price would not both have had to be away from home at
the same time (second shift) leaving the children unattended and the
babysitter problem would not have been involved.)
34 Assistant Personnel Manager Stout testified explicitly at the trial that
if a job is not available for the shift specified by an applicant for
employment , the applicant is not hired
35 Through Respondent 's witnesses Day, Jackson , Meyers, Hatcher, and
Purvis.
upon it here, since Mrs. Price was neither transferred to the
second shift-as battery filler, it is to be noted-nor
dismissed for that reason, but only-as shown on her
"separation notice" and as expressly conceded at the trial
by Department Head Purvis, the prime mover in Mrs.
Price's discharge-because of "five unexcused absences"
arising out of her inability to obtain a babysitter,
precipitated by Respondent's transfer of her to the second
shift on which she had all along indicated she would not
take the job and could not work.38
Testimony relating to the unsolicited transfer of Mrs.
Price to the second shift and her subsequent dismissal from
employment, was adduced by Respondent through its
witnesses Meyers, Miller, and Purvis S7 Respondent's
Weaving Department First Shift Supervisor Charles E.
Meyers, who has served in that capacity for 13 years and
under whom Mrs. Price worked on the first shift, testified
that in late February 1973, while he and Supervisor
Trainee Nathan Stewart Miller 3d were in Weaving
Department Head Purvis' office, the latter called Mrs.
Price in to transfer her to another shift. According to
Meyers-whom I discredit in this respect since it is directly
contrary to fact and Respondent's own records-Mrs.
Price said she could not work on the third shift and had
told this to Assistant Personnel Manager Stout when she
was hired, but could work on the second shift, whereupon
Purvis gave her until the end of the week to secure a
babysitter.38 Meyers further testified that, after a discus-
sion with Purvis, he assigned Mrs. Price to the standup job
of battery filling, for the first time since her foot disability,
promptly upon her return to the plant from the NLRB
hearing on February 6, 1973. Meyers conceded that if Purvis
had not transferred Mrs. Price to the second shift from her
first shift job on March 5, he (Meyers) would have continued
to use her 4 hours on battery filling and 4 hours on sedentary
work, barring a further medical statement-and depending on
that would have used her 8 hours on battery filling or 8 hours
on sedentary work, "wherever we needed her. "39 According
to Meyers, Purvis indicated to Mrs. Price only that he
"needed her on the other [i.e., second] shift," not that he
3e If, however , a finding on this were essential, I would find that Mrs.
Price's performance as a battery filler was at an acceptable and satisfactory
level of competence . I credit her testimony that she was at no time given any
indication that she was unsatisfactory as a battery filler . The fact is that she
was placed into the battery filler job following a period of on-the-job and
technical training , and was retained in that job during the remainder of her
11/2-year period of employment with Respondent . I expressly discredit the
testimony of Purvis purporting to indicate or suggest that Mrs. Price was not
qualified as a battery filler. Based upon testimonial demeanor observations
and for other reasons to be explicated below, I formed a poor impression of
Purvis' credibility on the subject of Mrs. Price in this case. Furthermore, it is
difficult to understand why, if Mrs . Price was an unqualified or
unsatisfactory battery filler, Purvis retained her in Respondent's employ as
long as he did as a battery filler, and why he assigned her, as he did, to the
job of battery filling on the second shift as late as March 1973.
37 Respondent's witnesses Peggy Brothers (weaveroom timekeeper) and
Brenda Hatcher (personnel secretary) also identified various time and
personnel records.
38 Also according to Meyers, just before leaving the office Mrs. Price
remarked that the third shift might be better because of the babysitter
problem, but nothing further was said.
39 This not only further indicates Mrs. Price 's acceptability as a battery
filler, but shows that at the time of her transfer to the second shift by Purvis
on March 5 there was need for her continued services as a battery filler on
the first shift, as well as in sedentary work on the first shift.
CONE MILLS CORP., REVOLUTION DIV. 483
did not; need her on the, first shift . Meyers was unable to
explain at the teal.why, if as-now claimed Mrs . Price was
hired for a shift other than the first shift, she was permitted
to work on the first shift for almost 1-1/2 years, and then
transferred to the second shift (i.e., the only shift she had
all along specified as unacceptable to her) after actively
engaging in protected concerted activity. Conceding
awareness of the union "Fact Line" pro-union recording
by Mrs. Price for the union organizational telephone
campaign, and that it was discussed between him and
Purvis, Meyers at first professed to be unable to recall
whether he first heard about it before or after Mrs. Price's
discharge on March 26 .40 Finally , Meyers in effect conceded
that the work being performed by Mrs. Price on March 5,
1973, on the first shift was work that had to be done, and that
after Mrs. Price was transferred to the second shift the work
she had been doing continued to be done by others.
Nathan Stewart Miller 3d , a supervisor trainee under
Department Head Purvis for about 6 months when he took
the witness stand here , testified that he was present during
the aforedescribed meeting in Purvis ' office when Mrs.
Price was transferred to the second shift. According to
Miller, after first inquiring about her health Purvis pointed
out to Mrs . Price that she had been "hired for another
Shift" 41 and that he "needed her on the second shift more
than he needed her on the third." 42
Carl Purvis has been in Respondent 's employ for 32
years, and has been its Overseer of Weaving-responsible
overall for all three shifts-for 6 years. Purvis testified that
it was he who directed that Mrs . Price be assigned to
battery filling upon her return to the plant from the NLRB
hearing on February 6 (she had been on sedentary work
until then because of her foot injury) because he "needed"
her to do that at just that time , and that this "need"
continued for the next three weeks , at which time he
"needed" her on the second shift rather than the first (or
third) shift so he transferred her to the second shift.
According to Purvis, when he summoned Mrs. Price to his
office (with his subordinates Meyers and Miller there), he
"told [her] that she knew" that she had not been hired
(almost a year and a half before that) for the first but for
the third shift, whereupon Mrs. Price responded that she
had informed Assistant Personnel Manager Stout when she
was hired that she "would not have third shift on a silver
platter." Thereupon, still according to testimony of Purvis
which I do not credit, Purvis further "reminded" Mrs.
Price that she had "agreed" to be put on the second shift
when she had come off a training program unsatisfactori-
ly-almost a year prior to this. Claiming that he "needed"
her on the second shift, Purvis then assigned Mrs. Price to
40 On redirect examination, Meyers retrieved his position by stating it
was after Mrs. Price was transferred to the second shift on March 5 that he
learned about her recorded message on behalf of the Union.
41 This is what Miller testified on cross-examination . On direct
examination he had sworn that Purvis informed Mrs. Price that she had not
been hired for the first but for the third shift , and that Mrs. Price said she
had told Assistant Personnel Manager Stout that she "wouldn't have third
shift on a silver platter."
There is nothing to suggest why the awareness that Mrs. Price had been
"hired for another shift" should suddenly dawn on Purvis after a year and a
half, and then require precipitate action of the nature described.
43 Miller purported not to recall whether Purvis indicated why he needed
Mrs. Price more on the second shift nor what she would be doing there.
that shift, with Mrs. Price according to him indicating only
that the third shift would or "might" be better since her
husband also worked on the second shift.
Mrs. Price reported on the second shift (3 to 11 p.m.)
on the following Monday, March 5, working 4 hours filling
batteries and 4 hours at sedentary work, at the same salary
of $2.16 per hour or $86 weekly gross. About a week later,
Purvis-still according to his testimony-approached her
during her break period around 8:30 p.m.43 and told her
that he had heard her recorded union message on the
telephone and that although she had a nice voice she had
lied, that she knew better, and asked her why she thought
she was entitled to "special privileges." In Purvis' words, "I
[Purvis] was unhappy with the message that she had given
out . . . [because] a lot of it was untrue.... I called her a
liar." The following week, he received a note on March 21
and on March 22 a telephone call from Mrs. Price that her
mother, who had been serving as her babysitter since she
had been transferred to the second shift, was gravely ill and
requesting time off, and Purvis excused her for the next 2
days (Thursday and Friday). On Sunday, Mrs. Price again
called Purvis, informing him the situation was unchanged.
This time, Purvis told her it was her "responsibility." On
Monday and Tuesday (March 26 and 27) Mrs. Price again
called in to the same effect ; this time, Purvis told her it was
an "unexcused absence." On the next day (Wednesday,
March 28) Purvis told Mrs. Price "her job would be done
away with for five unexcused absences"; Mr. Price
thereupon advised Purvis that the matter would be placed
before the Labor Board . Also according to Purvis, he
(Purvis) pointed out that there were other jobs posted open
for bidding, including a first-shift job; however, I do not
credit Purvis' testimony in this regard, since he convinc-
ingly professed to be unable to recall what those other jobs
were, while conceding that Mrs. Price could pet form them
even with her partial disability, and since he was unable to
suggest why Mrs. Price would not bid on such a job since
she desperately wanted a first-shift job.44
Explaining that Respondent has a "written" and "post-
ed" policy regarding "unexcused" absences-of which he
neither produced a copy at the trial nor professedly was
able to remember the contents 45-Purvis further explained
that it is he who decides what is "excused" or "unexcused."
Purvis asserts that he uses the seniority system for
assignment to all jobs on all three shifts in the weaveroom,
the "normal production priorities" being first, second, and
third shift, in that order; there being some 95 first, 80
second, and 80 third-shift weaveroom jobs. He identified
Hilda Price as a first -shift battery filler in and since
January 1973. Purvis impressed me as equivocating
Miller strongly impressed me as undisguisedly hostile to Mrs. Price and
patently eager to please his superiors with his testimony, even to the point of
extending it to matters (e.g., Mrs. Price's job capacity) concerning which he
lacked personal knowledge.
43 Purvis normally leaves the plant by 5 or 6 p.m.
44 The "Notice of Unexcused Absence" to Mrs. Price , signed by Purvis
and upon which Respondent bases her dismissal , refers to dates March 26
through March 30 although it is dated March 26.
45 Seemingly contrary to this, Respondent's Personnel Manager Billie G
Jarvis testified that Respondent has no written rule or policy concerning what
reasons for absences will or may be considered acceptable; and he concedes
that Mrs. Price could well have been excused under the circumstances "if
management had been so inclined.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unnecessarily and certainly unconvincingly on the subject
of whether or not there have been employees other than
Mrs. Price who have been compelled to change shift against
their desire , on pain of losing their job; and in view of
Purvis' testimonial demeanor while responding to this line
of questioning, I find that Respondent has by no means
shown that Mrs. Price 's shift transfer upon the basis
asserted by Respondent was not unique.
c. Resolution
Resolving issues of credibility , based upon comparative
testimonial demeanor as closely observed ,46 and upon the
record as a whole , I find that Respondent's transfer of Mrs.
Price from her first -shift job to the second shift on March
5, 1973 , under the circumstances described , was discrimi-
natory and coercive , as alleged in the complaint , and that
its alleged reason therefor was pretextual ; and, further, that
Respondent 's dismissal of Mrs . Price on or about March
26, 1973 , for which the stage had been set by Respondent's
transfer of Mrs . Price to the second shift on March 5, was
likewise discriminatory and coercive as alleged , and that
the reason assigned by Respondent therefor was similarly
pretextual.
When Mrs. Price applied for employment with and was
hired by Respondent in October 1971, she and her
husband , who was already in Respondent's employ on the
second shift, expressly explained to Respondent that
because they had four young children Mrs. Price could not
accept employment on the same (second) shift as her
husband ; and she in effect so specified in writing on her
job application form . She was hired on the understanding
and assurance that she would not be required to work on
the second shift , and she was hired for and placed on the
first shift, on which shift she was continued for almost a
year and a half.
Mrs. Price 's employment difficulties with Respondent
date from the very day when she was observed by
Respondent 's officials to appear at a NLRB preelection
hearing , which she had been subpoenaed to attend as a
union witness . (Mrs. Price had also stepped up her union
organizational activities by wearing "Vote Yes" and "I
support the TWUA" buttons in the plant .) Immediately
48 1 have taken into account the usual type of discrepancies , including
certain details between the testimony of Mrs Price and her uncross-
examined pretrial statement ; nevertheless , on the whole I was well
impressed with Mrs. Price-a plain but earnest and sincere person of
limited schooling-as a witness and believe her account in its major,
controlling aspects to be essentially accurate and true . Mrs. Price 's husband,
Albert Price , was a particularly impressive witness who remained unshaken
on able cross-examination . I was not similarly favorably impressed with the
testimony of Respondent's witnesses Purvis, Meyers, and Miller; Purvis
particularly demonstrating what appeared to be a sharp bias against Mrs
Price, for that or other reasons coloring, shading , accommodating, or
obscuring or masking facts or circumstances testified to which are central to
resolution of the issues affecting Mrs. Price . On balance, therefore, I have
no hesitation in regarding the testimony of Mr . and Mrs . Price as weightier
than that of Respondent 's countervailing witnesses.
47 Inasmuch as Mrs. Price's physician had, shortly before this, indicated
that Mrs. Price could be placed on 4 hours standing work per day, even
though Respondent had not so assigned her I do not find Respondent's
action in precipitately assigning her to that task upon her return from the
NLRB hearing on February 6 was discriminatory or coercive (as alleged in
paragraphs "9" and " 12" through " 15" of the complaint), even though the
abrupt change of assignment under the circumstances described is
suspicious. (No violation of Section 8(a)(4) of the Act is alleged in the
upon her return to the plant from the February 6 NLRB
hearing, she was taken off the sedentary work she had been
doing (including that very morning) because of an
industrial injury to her foot suffered in Respondent's plant,
and assigned to the task of battery filling requiring
continuous walking as well as the pushing of a heavy cart
or buggy.47
Shortly thereafter, on March 1, Mrs. Price was precipi-
tately and against her will, as well as contrary to her
correct understanding with Respondent when she accepted
employment there, for no convincing reason here factually
established singled out from all of the first-shift battery
fillers and transferred to the second shift-the shift she had
explicitly specified she could not work on because her
husband was also employed by Respondent on that shift
and their four young children would be left alone at home
if they were both absent on the same shift. Mrs. Price's
protestations, however, were to no avail, and she was over
her objection transferred to the second shift. She submitted
to this unwanted transfer because of her need for the job
and income, a gross weekly wage of about $85, out of
which she was then constrained (after her transfer to the
second shift) to expend $25 per week to her mother as a
bargain-rate babysitter (no others were obtainable for less
than $40 per week).
Respondent's transfer of Mrs. Price to the second shift
on March 5-coupled with her further stepped-up union
organizational activities in making a recording for the
Union's use in its preelection campaign, detailing her
recent work experiences including her transfer to the
second shift-set the stage for her dismissal a few weeks
later, when her mother became seriously ill and had to be
hospitalized, eliminating her as the babysitter: Respon-
dent's supervisor, Purvis, who had engineered Mrs. Price's
transfer to the second shift and who concedes he was
"unhappy" with Mrs. Price because of her recording for
the Union,48 refused in his own absolute "discretion" to
accept this as an "excuse" for Mrs. Price's temporary
absence from work and also in his own absolute "discre-
tion" refused to transfer her to either a first- or third-shift
job, which according to his own testimony, was available.49
Under the circumstances shown and found, Respon-
complaint.)
48 There is, to be sure, indication that other employees also participated
in the Union's recorded organizational campaign telephone messages. But
the precise nature of those other messages is undisclosed , as are also the
circumstances thereof , the persons involved and their employment status,
and the impact if any on management ; and the consequences , if any, were
unexplored . According to Supervisor Meyers' testimony, Mrs. Price's
telephone message spoke of her "mistreatment , her job had been taken away
from her; and something about if they could take her job, they could take
somebody else's and so on." Such expressions could obviously have an
abrasive effect upon an employer and his supervisors . There is no indication
that the recorded message of any other employee had similar thrust , quality
or weight, or that Respondent found any other message comparably
objectionable or objectionable at all.
49 As Respondent's witness Charles E. Meyers, Mrs. Price's immediate
supervisor, testified , when Mrs. Price was transferred by Purvis to the
second shift, he had continuing need for her services on the first shift, and
her work on the first shift was thereafter performed by others on that shift;
and he also continued to have other jobs and work available for her to do
on the first shift. Meyers enumerated a long list of such jobs. (While on the
witness stand as Respondent 's witness, Respondent 's Assistant Personnel
Manager Stout also testified that the plant has numerous types of jobs
available, even for those whose scores on its prehire tests are as low as only
CONE MILLS CORP., REVOLUTION DIV.
dent's transfer of Mrs. Price from her first shift job to the
second shift on March 5 was not in fact for the reason
assigned by Respondent , nor was its dismissal of Mrs.
Price on or about March 26 or March 30 for the reason
assigned by it. Those reasons were pretextuous. The true
reason for each of those personnel actions was Mrs. Price's
stepped-up Union organizational activities, protected
under the Act, the "straw that broke the camel's back"
being Mrs. Price's Union campaign recording, which
undoubtedly was an intolerable thorn in Purvis' side.
Realistically, this is the only explanation which truly fits
the facts. The "explanations" now advanced by Respon-
dent simply "fail[s] to stand under scrutiny" (N .LR.B. v.
Thomas W. Dant, Robert E. Dant, d/b/a Dant & Russell,
Ltd., 207 F.2d 165 167 (C.A. 9)) Cf. Cedar Corp. d/b/a
Westside Manor Nursing Home, 203 NLRB No. 33.
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By its conduct set forth and found in section III,
supra, consisting of its transfer of its employee Loye M.
Price from the first to the second shift on or about March
5, 1973, under the circumstances described, and its
dismissal of Loye M. Price from its employ on or about
March 26 or 30, 1973, under the circumstances described,
and its failure and refusal to reinstate or rehire her since
that time , Respondent has engaged and is continuing to
engage in unfair labor practices in violation of Section
8(a)(3) and (1) of the National Labor Relations Act as
amended.
3. Said unfair labor practices have affected, affect, and
unless permanently restrained and enjoined will continue
to affect commerce within the meaning of Section 2(6) and
(7) of said Act.
4. It has not been established by a preponderance of
substantial credible evidence upon the record as a whole
that Respondent has committed any of the other acts
alleged in the complaint to have constituted unfair labor
practices, nor that such acts constituted violations of said
Act.
THE REMEDY
Having been found to have violated Section 8(a)(3) and
(1) of the Act in respect to its shift transfer and dismissal of
Loye M. Price and its failure to reinstate or reemploy her,
Respondent should be ordered to cease and desist
therefrom and to offer her reinstatement to her former (or,
if no longer available, in that case equivalent) first-shift
job, together with backpay as appropriate, less applicable
interim earnings if any, plus interest, computed as
delineated in F. W. Woolworth Company, 90 NLRB 289,
4 correct answers to 60 or 70 questions .) Moreover , such records as
Respondent itself introduced at the hearing (Resp. Exhs. 18 and 19) indicate
not only job vacancies on the first- shift but also a seemingly high rate of
absenteeism , including battery fillers and "spare help ... a regular job";
for example , 8 absentees out of 15-20 first-shift weaveroom (east and west
end) employees (Resp . Exh. 19 ; Feb. 6, 1973), and on the preceding day on
top of the same number of absentees an additional 6 jobs (including battery
filling) not being done (Resp . Exh. 18). According to Respondent's own
witness, weaveroom timekeeper Peggy Brothers , this was not an unusual rate
485
and Isis Plumbing & Heating Co., 138 NLRB 716, making
necessary records available for computation purposes.
Respondent should also be required to reimburse Mrs.
Price for babysitter fees expended between the date of her
discriminatory transfer to the second shift and her
discharge. Respondent should further be required to post
the usual Notice To Employees to the effect that it will
repair such violation, and desist from further such
violation and interference with its employees' rights under
the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER50
It is hereby ordered that Respondent, Cone Mills
Corporation, Revolution Division, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Changing the work shift assignment of any employee
against his will, discharging any employee, or failing and
refusing to reinstate or rehire any employee, in violation of
Section 8(a)(3) or (1) of the National Labor Relations Act
as amended, because said employee has engaged in union
organizational or other concerted activity protected by and
lawful under said Act.
(b) Discriminating against any employee in regard to his
hire, tenure, or terms and conditions of his employment, so
as to discourage membership in, affiliation with, sympathy
for, or lawful activity on behalf of Textile Workers Union
of America, AFL-CIO, CLC, or any other labor organiza-
tion.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization.
2. Take the following affirmative actions, necessary to
effectuate the policies of the Act:
(a) Offer Loye M. Price immediate and full reinstatement
to her former position or, if it no longer exists, to a
substantially equivalent first-shift position, without preju-
dice to her seniority or other rights and privileges; and
make her whole for any loss of pay suffered, as well as
babysitter charges expended by her, in consequence of her
discriminatory shift transfer on or about March 5 and her
unlawful dismissal on or about March 26 or 30, 1973, in
the manner set forth in the "Remedy" portion of the
Decision of which this Order forms a part.
(b) Preserve and upon request make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to determine the amount of backpay and other
sums due under and the extent of compliance with the
of absenteeism on the first shift -raising additional doubts as to the bona
fides of Respondent' s precipitate transfer of Mrs . Price, alone of all first-
shift battery fillers, to the unwanted second shift,
so 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 , and recommended Order which follows herein shall,
as provided in Section 102.48 of those Rules and Regulations , be adopted
by the Board and become its findings , conclusions, and Order, and all
objections thereto shall be deemed waived for all purposes.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms of this Order.
(c) Post at its Revolution plant premises in Greensboro,
North Carolina, copies of the notice attached hereto
marked "Appendix."51 Copies of said notice, on forms
provided by the Board's Regional Director for Region 11
shall, after being signed by Respondent's authorized
representative , be posted in said premises by Respondent
immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered , defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 11 in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply therewith.
IT IS FURTHER ORDERED , that the consolidated amended
complaint herein dated April 30, 1973, be and the same is
hereby dismissed in all respects 52 not herein found to have
constituted violations of said Act.
si In the event that the Board 's Order is enforced by a Judgment of a Order of the National Labor Relations Board."
United States Court of Appeals, the words in the Notice reading "Posted by 52 I.e ., pars . 7(a) through 7(1), 8, and 9 ; and paragraphs 12 through 15
Order of the National Labor Relations Board" shall be changed to "Posted only insofar as they relate to said paragraphs 7(a) through 7(1), 8, and 9.
Pursuant to a Judgment of the United States Court of Appeals Enforcing an