Fayette Cotton Mill

National Labor Relations Board - Board Decisions

Sep 26, 1979

245 N.L.R.B. 428 (N.L.R.B. 1979)

DIECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fayette Cotton Mill and United Textile Workers of
America, AFL-CIO-CI.C. Case 10-CA-13087
September 26, 1979
DECISION AND ORDER
By (CHAIRMAN FANNING AND MEMBLRS JENKINS
AN) PNEZX)
On January 24, 1979, Administrative Law Judge
Hterzel tt. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
tiled a brief in answer thereto.
Pursuant to the provisions of Section 3(b) of the
National L.abor Relations Act, as amended, the Na-
tional abor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,t and
i Respondent has excepted to certain credihiliti findings made by the Ad-
nuimnltratise aw Judge. It is the Board's established plics not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all ot the relevant evidence consinces us that the
resolutions are incorrect. Sianldard Dnr Wlil Products. Inc, 91 N RB 544
11950), enid. I88 .2d 362 3d ('irt. 1951). We have carefully examined the
record and find no basis for reversing his tindings
We agree with the Administrative ilaw Judge that Respondent enforced
plant rule I against Douglas lumphries in a disparate manner for discrimi-
na.lor\ reasoins and thel-eby violated Sec. 81a)(3) and 1) of' the Act In so
holding. however. we now correct several actual errors in the Administrative
.law Judge's analsisis supporting his finding of disparate treatment. The Ad-
nlilstratlve law Judge concluded that, though the third step of the progres-
sle disciplinary svstem associated with plant rule I could he either a layoff
or a discharge. umphries was the onli employee discharged at his third
offense I he record shows that I)ennis Aldridge was also discharged without
a prior disciplinars layoff. During his third periodl of employ ment following
two prior discharges and rehires, Aldridge received an oral warning for his
first violation of plant rule I and a written warning for his second absence.
I hough the written warning indicated that a 3-day layoff would be imposed
tor his next absence, Alridge was in act discharged when that occurred on
Octobher 3, 1977
Brenda Bircheat received an oral warning for an absence on January 31,
1977, and a written warning fir her second absence on February 2 1977. She
was discharged on March 7, 1977. for her third absence and was never given
a disciplinary layoff. I'he Administrative .aw Judge is incorrect in finding
that since Bircheat's discharge notice indicated that she had last reported for
work on March 4 her discharge was therefore justified under plant rule 42.
which prov ides fr mmediate discharge upon failure to report for 3 conecu-
trie workdays March 6 was a Sunday and not a workday. We find that
Bircheat was discharged for violations o'f plant rule I at the third step of the
progressive disciplinary scale. Further. the record shows that Eddie James
Gilpin was discharged for the first time in April 1977. His personnel file
reveals that he quit and was not discharged in August 1965 and in March
1976. Therman Selman was discharged on five, not eight, different occasions
between 1959 and 1977.
We are satisfied that the history of Responnent's enforcement of its plant
rules amply supports the Administrative Law Judge's finding of' disparate
treatment. Contrary to both company policy and pratice, Humphries re-
ceived no oral warning for his late arrival on August 27. 1977. He did receive
a written warning for his absence on August 30. He was discharged on
September I after reporting for work 30 minutes late. All other employees
discharged for multiple violations of plant rule I received at least two warn-
ings and all of' them, except Aldridge and Bircheat. received a 3-day disci-
plinar) layoff prior to discharge.
conclusions of the Administrative Law Judge only to
the extent consistent herewith, and to adopt his rec-
ommended Order, as modified herein.
The Respondent has excepted to the Administra-
tive Law Judge's findings that Assistant Plant Man-
ager Smith's remark to Douglas Humphries to the
effect that the Union has left and "chickened out" on
the employees constituted disparagement in violation
of Section 8(a)(1). We find merit in this exception.
Administrative Law Judge Plaine's reliance on Al
Pfister, dh/a Pfister Truck Service, 236 NLRB 217
(1978), is misplaced. In that case Pfister's remark that
the union had "sold the employees down the river"
was combined with telling an employee "not to go
down to the Union." However, the Administrative
Law Judge addressed only the "down the river" por-
tion of the remark in finding an 8a)( 1 ) violation as to
disparagement. The recommended Order and notice,
as adopted by a Board panel including Chairman
Fanning and Member Penello, did not included any
reference to either the disparagement or the solicita-
tion of union withdrawal aspect of Pfister's remark.
Similarly, the Administrative Law Judge in Lehigh
Lumber Companan, and Brown-Borhelk compan, 230
NLRB 1122 (1977), found that a supervisor's remark
to an employee that the union was "screwing" him
and that he ought to look for another union was in-
tended to denigrate the union and was therefore vio-
lative of Section 8(a)(I ). As in Pfisver, supra the rec-
ommended Order and notice as adopted by the Board
did not require the respondent to cease and desist
from the behavior found violative by the Administra-
tive Law Judge.
In the instant case Smith's "chickened out" remark
was immediately preceded by a coercive interrogation
of Humphries as to how Humphries thought the
Union's withdrawal of its election petition would af-
fect its cause. This case differs from the above-cited
cases in that the Administrative Law Judge found,
and provided a remedy for, two separate violations
arising out of the same incident. One was for the coer-
cive interrogation and the other was for the "dispar-
agement." Under the facts of this case, given a cease-
and-desist order directed specifically to the interroga-
tion, we find that Smith's disparaging remark was
merely ancillary to the interrogation insofar as it may
have had a coercive impact on Humphries' Section 7
rights. We view Section 8(c) as protecting a respon-
dent's characterization of the union which employees
are quite capable of evaluating for themselves.2
2Chairman Fanning would find in agreement with the Administrative
Law Judge that Smith's statement to Humphries that the Union had "chick-
ened out" or run out on the employees violated Sec. 8(a 1I) of the Act as it
was immediately preceded by Smith's coercive interrogation of Humphries
as to why the Union withdrew its election petition and what he (Humphries)
thought the withdrawal would do to his cause in support of the Union. Thus.
245 NLRB No. 64
428
FAYETTE COTTON MILL
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Fayette
Cotton Mill, Fayette, Alabama, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Delete paragraph I(d) and reletter the remain-
ing paragraphs accordingly.
2. Substitute the following for paragraph 2(b):
"(b) Offer to said employees immediate and full
reinstatement to his former job or, if the job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights and
privileges previously enjoyed."
3. Substitute the attached notice for that of the
Administrative Law Judge.
contrary to the majonty, it is clear from the record that the disparagement of
the Union was not isolated from or unconnected with any other unlawful
conduct. Accordingly, in view of the fact that the "chickened out" charge
was closely related to and took place in the context of Smith's unlawful
interrogation, the cases cited by the majonrty, which parallel the situation
herein, compel the conclusion hat the disparagement of the Union did vio-
late Sec. 8(aXI) of the Act.
Chairman Fanning does not think the decisions the majority must distin-
guish to rationalize its decision in this case are distinguishable. Although the
majority observes that the Orders and notices of the cited cases do not ex-
plicitly refer to the disparagement as such, they do refer to the unlawful
conduct with which the disparagement was intertwined; namely, the respon-
dents' suggestion that the employees abandon their allegiance to the union
seeking recognition. The essential consideration is that the cases in question
stand for the proposition that the disparagement of a union is unlawful
when, as here, it is closely associated with other unlawful conduct. Once the
disparagement is found to be violative of the Act pursuant to that principle.
the majority cannot tenably argue that it is improper to fashion in this case
an appropriate remedy which specifically refers to the unlawful disparage-
ment of the Union.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were represented
and had an opportunity to present evidence and to
cross-examine witnesses, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice:
WE WILL NOT warn our employees of the futil-
ity of voting the Union in.
WE WILL NOT threaten to close the plant if
employees vote the Union in.
WE WILL NOT coercively question our employ-
ees on why they desire and support the Union, or
why the Union withdrew its election petition, or
what withdrawal would do to their support of
the Union.
WE WILL NOT discharge or discipline employ-
ees, or bar them from reemployment, for infrac-
tions of the plant attendance rules without re-
gard to the prescribed system of warnings and
discipline and the policy for rehiring experienced
employees.
WE WIL NOT discourage our employees' sup-
port of our membership in the Union, or any
other labor organization, by discharge or other
discrimination affecting their tenure or condi-
tions of employment.
WE WIllL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of rights guaranteed in Section 7 of the
National Labor Relations Act.
WE WILL offer Douglas Humphries 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 previously enjoyed.
WE WILL pay Douglas Humphries backpay.
with interest, from the time of his discharge. Sep-
tember 1, 1977.
FAYETTE COTTO N MILL
DECISION
STATEMENT OF THE CASE
HERZEI. H. E. PLAINE, Administrative Law Judge: The
case principally involves the discharge by Respondent of its
employee Douglas Humphries on September 1, 1977. Re-
spondent is a manufacturer of cotton and blend yarns.
The complaint alleges.' and General Counsel contends.
that Respondent discharged employee Humphries in viola-
tion of Section 8(a)(3) and (1) of the National Labor Rela-
tions Act (the Act), because of his open active support of
the Union in 1976 and 1977 campaigns to organize Respon-
dent's employees.
Respondent claims it fired employee Humphries because.
in violation of the plant attendance rule, he was tardy twice
and absent a day without advance report. just prior to his
discharge.
In reply, General Counsel contends that the infractions
by employee Humphries were his first in a seven year pe-
riod of service as a satisfactory employee. and that Respon-
dent reached out to use the infractions as an excuse to dis-
charge Humphries in disregard of its system of progressive
discipline for violations of the attendance rule and its prac-
tice of normally allowing greater latitude for infractions
Complaint was filed November 21. 1977. on a charge filed b Charging
Party (the Union) September 19. 1977. and amended charge filed November
10. 1977.
429
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and less servere discipline where antiunion animus was not
the motivating factor.
The complaint has also alleged independent violations by
Respondent of Section 8(a)(I)of the Act, including coercive
interrogation of employees concerning their interest in the
Union, impressing them with the futility of engaging in
union activities and threatening plant closure. Respondent
has denied these allegations.
The case was heard in Fayette, Alabama, on March 9
and 10, 1978. General Counsel and Respondent have filed
briefs.
Upon the entire record of the case, including my observa-
tion of the witnesses and consideration of the briefs, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Alabama corporation with an office
and place of business located at Fayette, Alabama, where it
is engaged in the manufacture of yarn'
In the past calendar year, a representative period, Re-
spondent sold and shipped finished products valued in ex-
cess of $50,000 directly to customers outside Alabama.
As the parties admit, Respondent is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
As the parties also admit, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Respondent's Business Operations
Respondent operates a mill or plant at Fayette for the
manufacture of cotton yarns used by garment manufactur-
ers, including use at plants of the owner or parent Union
Underwear Company (see fn. 2, supra) and plants of other
garment manufacturers, according to Assistant Plant Man-
ager Jack W. Smith, who is in charge of the plant produc-
tion and personnel.
The plant, which was increased in physical size in a
1975-76 expansion, went from about 350 employees to a
current work force of between 500 and 600 employees. Of
these, about 18 or 19 are supervisors or part of manage-
ment, according to Smith.
2 This finding is based upon the similar allegation in the complaint, admit-
ted in the answer. However, according to the undisputed testimony of Assist-
ant Plant Manager Jack W. Smith (see also testimony of employee Brenda
Humphies), the Fayette Cotton Mill is owned (either directly or as a corpo-
rate subsidiary, it was not elaborated upon) along with other plants in other
locations, by Union Underwear Company. Hence, Fayette Cotton Mill ap-
pears to be the nominal Respondent. This would seem to be an adequate
finding at this stage of the proceeding, unless and until ultimate responsibil-
ity should become material.
In this connection, I grant the motion of Respondent, included on p. 6 fn.
4 of its brief, that the transcript of testimony be revised to reflect the correct
spelling of the name of Medalie (erroneously spelled McDaly at p. 117
through 121), who in Brenda Humphries' testimony was described as vice
president, along with Hopkins as district manager, of Union Underwear
Company.
The manufacturing process, of spinning the raw materi-
als into yarn and putting the twist in the yarn to make it
cohesive and strong, is performed on large electrically
driven spinning frames that each contain many spindles
and bobbins. Employees called spinners tend to the spin-
ning. As the yarn is spun and twisted it fills the bobbins,
and employees called doffers lift off the full bobbins of
yarn, replacing them with empty bobbins to start up the
spinning frames again. The doffers carry the full bobbins to
the winding room where the yarn is wound on to large
spools for shipment.
Thus the rank-and-file employees are largely spinners,
doffers, fixers or section men, electricians, and other main-
tenance employees.' The plant operates 6 days per week, in
three shifts, round the clock.
At the time of the hearing and events of the case, in
charge of plant production and personnel, including hiring
and firing of employees, was Assistant Plant Manager Jack
W. Smith.
Under Smith and responsible to him, was the head of the
spinning and winding department, Department Head Da-
vid M. Ray.
Under Ray. were several supervisors, including Supervi-
sor Wayne Nichols of the first shift, Supervisor James D.
Hulsey of the second shift, and Supervisor Joel Wilkinson
of the third shift.
All five of the above-named individuals were supervisors
and agents of Respondent within the meaning of Section
2(11) of the Act, as admitted by Respondent.
B. Union Organizing, Company Opposition
The Union engaged in two campaigns to organize the
employees of the Fayette Cotton Mill, in 1976 and 1977,
according to employee Douglas Humphries. In connection
with the 1977 campaign a Board supervised election was
scheduled for August 19, 1977. However, 3 days prior, on
August 16, the Union withdrew its petition for the election,
and the election was not held.
Earlier, the Union had been successful in organizing the
employees at another of Union Underwear Company's
plants, at Aliceville. and in obtaining a collective-bargain-
ing agreement for those employees (testimony of employee
Douglas Humphries).
Nevertheless, the company opposed the unionizing of the
employees at the Fayette mill by, among other things, ap-
pearances and speeches in the plant in opposition to the
Union by the company officials such as Vice President
Joseph Medalie (testimony of employee Brenda Hum-
phries), a campaign in the plant to stop union organizing
including training sessions for supervisors on dealing with
employees on the union question (testimony of Supervisor
James Hulsey), and distribution of handbills for the com-
pany in opposition to the Union by Fayette mill employees
(testimony of fixer or section man Thomas Alvin Johnson).
Employee Douglas Humphries was active for the Union
in both the 1976 and 1977 campaigns. He obtained signed
I The fixers or section men see that the spinning frames keep functioning
properly, and perform certain routine functions of the supervisors, such as
observing that the requisite employees in their sections are in place when the
spinning starts.
430
FAYETTE COTTON MILL
union authorization cards from fellow employees, attended
union meetings, wore union buttons and insignia while in
the plant, and served on the employees' union organizing
committee. At trial, Respondent admitted awareness of em-
ployee Douglas Humphries' union activities.
C. 8(a)(1) Findings-Coercive Interrogation, Threats.
Warnings
About August 1, 1977, a little more than 2 weeks before
the scheduled election, on a break in the plant breakroom,
according to employee Douglas Humphries and his wife,
employee Brenda Humphries, they were approached by
second shift Supervisor James Hulsey, who engaged them
in conversation that turned to the matter of the Union.
Hulsey asked them why they thought they needed the
Union. Douglas Humphries answered that it would help
the plant. and Brenda Humphries added for job security
and better pay. Hulsey said, that the Union only wanted
the dues of the employees, that the Union would not pro-
tect them or guarantee them job security, and that it would
give them nothing that the Company did not want them to
have. Hulsey named several plants that had shut down one
in nearby Tuscaloosa that he said might still have been
open had it not been for the Union, and told them that if
the Fayette plant went Union it might shut down.
A few minutes later, when employee Brenda Humphries
was back at her place on the plant floor, Supervisor Hulsey
came by, and asked her again why she thought she needed
the Union, telling her the company cared for the employ-
ees. Brenda Humphries replied that she doubted that com-
pany officers like (Vice President) Medalie or (District
Manager) Hopkins cared for the employees. Shortly there-
after, employee Douglas Humphries came over to help his
wife on the plant floor.' Supervisor Hulsey was nearby. He
called Douglas Humphries aside, and continued to talk
about the Union. Hulsey told Humphries that the company
cares about us, but that the company would care more for
you without a Union than with a Union.
Supervisor Hulsey claimed that in these conversations he
did not say that the Union could not get the employees
anything the company did not want them to have or that
the company might close the Fayette plant. I find Hulsey's
denials unconvincing in light of his other testimony that he
personally, as well as the company, did not want the Union
in the plant; that he would do anything, within the law, he
added, to keep the Union out; that he had been in several
sessions with other supervisors on how to treat with em-
ployees on the union question; and (the incredible asser-
tion) that he was not trying to convince the Humphries not
to vote for the Union.
As the Board has most recently reiterated in Paceco. A
Division of Fruehauf Corp. 237 NLRB 399 (1978). "an inter-
rogation of an employee's union sympathies or his reason
for supporting a union need not be uttered in the context of
' He was a doffer, and she was a spinner: and since he worked fast and
usually doffed the expected three frames per hour in less than half the time
allotted, he frequently volunteered help to his wife instead of spending his
down time in the breakroom. The practice was known and accepted by
supervision.
threats or promises in order to be coercive. The probing of
such views, even addressed to eniplvyees who have openlv ie-
clared their prounion synpalhies. reasonably tends to inter-
fere with the free exercise of employee rights under the Act.
and consequently, is coercive. [Emphasis supplied.]" in vio-
lation of Section 8(a)( 1) of the Act.'
In this instance, the interrogation of the t o H umphries
by Supervisor Hulsey was not only coercive in its nature, in
the context of the impending representation election and
Respondent's open hostility to the Union. but was also ac-
companied by threat of plant closure if the Union was
voted in, N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. 618
620 (1969): and by warning of the futility of voting the
Union in. Trailwao's Inc.. 237 NLRB 654 (1978): 'omac
Industries. 238 NLRB 43 (1978), both of which the threat
and warning are themselves violations of Section 8(a)(1)
of the Act.
On August 15, 1977. 4 days before the scheduled repre-
sentation election, third shift Supervisor Joel Wilkinson
came into the breakroom where a number of employees
were gathered. Wilkinson testified there were 10 to 15 em-
ployees in the room. Among them were employees Douglas
and Brenda Humphries and Janet Browning. According to
these three employees. Wilkinson carried with him a sample
election ballot, which he showed about to the employees
with the places for voting yes or no, and urged the employ-
ees to vote no. saying, that is the way we want you to vote,
vote no, like Doug and Brenda (Humphries) and we will all
he happy. Supervisor Wilkinson testified he was not sure he
said that, though he knew the Humphries were for the
Union. Douglas Humphries spoke up and said, vote yes, the
only way we are going to be happy.
Supervisor Wilkinson then sat down where employees
Douglas and Brenda Humphries were sitting, and, as both
of them testified, asked them to explain to him why they felt
they needed the Union.6 Employee Brenda Humphries said
she and her husband mentioned job security and pay raises.
Supervisor Wilkinson told them of several plants that had
shut down because of the Union. and of the Union contract
at the Aliceville cotton mill (like Respondent also owned by
or a subsidiary of Union Underwear Company) where, he
said, the employees made less money under their Union
contract than the employees at the Fayette mill earned: and
further told them that if they voted the Union in and got a
contract, the contract would be exactly like the Aliceville
mill contract because the same union people and company
people would be bargaining for the Fayette mill contract.
and would not negotiate a better contract for one mill over
the other.
Paceco also reiterated that the employee's subjectise state of mind. or his
responses to the interrogation. do not diminish the coercive impact of the
supervisor's interrogation.
I In this connection, while counsel for Respondent sought to suggest that
Supervisor Wilkinson's approach was good-natured, joking. and friendly.
Supervisor Wilkinson himself did not so testify. Employee Browning testified
that when Wilkinson made his entry into the room he appeared to be speak-
ing jokingly but nobody laughed, and the conversation in hich he engaged
the Humphries was seriuos argument about the Union. Douglas Humphries
testified there was no laughter or joking on either side. Both he and Wilkin-
son made plain in their testimony that though they had known each other all
their lises they had not been friends at least since Humphries' marriage
several years earlier. and the exchange in the breakroom was not a friendly
one I so find
431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Wilkinson's vagueness in remembering what
happened and what he did in the breakroom meeting with
the employees has caused me to discredit his denial that he
questioned the Humphries on why they desired and sup-
ported the Union. His probing of such views, even of em-
ployees known to have prounion sympathies, was coercive
and tended to interfere with the free exercise of their Sec-
tion 7 rights, see Paceco supra, and, made in the context of
the impending representation election and supervisory hos-
tility to the Union, violated Section 8(a)(1) of the Act.7
A few days after August 16, 1977, the date when the
Union withdrew its petition for the representation election
scheduled for August 19, 1977, employee Douglas Hum-
phries came to Assistant Plant Manager Jack Smith's office
on a matter relating to work, as both testified.8 Humphries
was seeking overtime work and was inquiring of Smith why
second shift Supervisor Hulsey would not let him work
overtime. Smith said he would check on the matter.
After saying so, Assistant Plant Manager Smith asked
employee Douglas Humphries, how come the Union ran
out on the employees, and what would it do with respect to
his cause.9 According to Humphries, Smith also commented
that, it was after the last union meeting that the Union
packed and left and chickened out on the employees. Hum-
phries testified that he denied that the Union had run out or
chickened out on the employees; and, according to Smith.
in response to his questioning, employee Humphries also
commented that the Union might lose some cards or may
not get some of the cards signed again.
I agree with General Counsel that the plant manager's
questioning of employee Humphries as to why the Union
withdrew its election petition and what he thought the with-
drawal would do to his cause in support of the Union, was
coercive interrogation in violation of Section 8(a)(l) of the
Act. As pointed out in Paceco, supra, 99 LRRM at 1546, n.
4, the employee's subjective state of mind, possibly indi-
cated by his responses, do not diminish the coercive impact
of his supervisor's interrogation, which is tested by its ten-
dency to interfere with the free exercise of the employee's
Section 7 rights. Here the tendency was compounded by the
supervisor's additional remarks that the Union had run out
or chickened out on the employee and his fellow employees,
which was a further interference with the employee's sup-
port of the Union calculated to disparage and undermine
the Union in the eyes of employees in violation of Section
8(a)(1) of the Act. Compare, Al Pfisler, d/bl/a Al Pfister
Truck Service, 236 NLRB 217 (1978), where several em-
Even if the interrogation had taken place in a friendly atmosphere
(which was not the case, see fn. 6, supra), it would have violated Sec. 8a I)
of the Act, Erie Technological Products, Inc., 218 NLRB 878 (1975); likewise.
if the interrogation had been out of curiosity (again not the case) Paceco,
supra.
I The complaint alleged this was August 19, but Humphries testified it was
more likely in the following week, possibly August 24. when he had been
permitted to return to work after 8 working days absence in which he wanted
to work but was not permitted to work by second shift Supervisor Hulsey
because of a cut hand. The forced leave had begun in the afternoon of
August 15. At the time of his injury and return, Humphries was temporarily
on second shift, but was returned to first shift after coming back August 24.
'Assistant Plant Manager Smith testified making these inquiries of em-
ployee Humphries, but waffled on whether he or Humphries opened the
discussion concerning the Union. From other testimony of both, I believe it
is apparent that Smith initiated the discussion.
ployees were told by the employer that the union had sold
them down the river.
D. 8(a)(3) and (1) Findings-Discharge of Employee
Douglas Humphries
1. Events leading to discharge
Employee Douglas Humphries worked for Respondent
from January 25, 1971, to September 1. 1977, a period of
almost years. He was a doffer, and a good one, as testified
to by Assistant Plant Manager Jack Smith. Humphries was
not only proficient but exceptionally fast in performing his
work, doing the three frames per hour assigned to him usu-
ally in less than half an hour. (The assignment was no more,
as well as no less, than three frames per hour, because the
doffing had to be coordinated with the spinning.) In his free
time or downtime Humphries frequently went over to
where his wife Brenda worked as a spinner, and helped her,
with the knowledge and consent of the supervisors.
As Assistant Plant Manager Smith testified, he and the
plant supervisors knew that employee Douglas Humphries
was a supporter of the Union in the 1976 and 1977 union
campaigns, the latter of which came to an abrupt end in
mid-August with cancellation of the slated election for Au-
gust 19, 1977. Smith also testified that it was not until the
last week in August that employee Humphries had given
Respondent any cause to discharge him. Indeed, as Smith
admitted there was no record of a warning in Humphries'
personnel file of possible discipline for any infractions of
rules or delinquencies until August 31, 1977, the day before
Humphries was fired, when he was given a warning slip for
an "unreported and unexplained absence" on the previous
day, August 30. Smith took responsibility for Humphries'
discharge on September 1, and said he relied on what was
in Humphries' file in deciding to discharge him and to bar
him from future employment.
The events prior to the discharge were the following:
On Sunday. August 14, 1977, employee Humphries acci-
dentally cut his hand at home. It required stitches to close
the wound. and the doctor wrote a note to excuse Hum-
phries from work, but he preferred to work and reported for
work on Monday, August 15. He worked 4 hours, but in the
afternoon of August 15, he was sent home by Supervisor
Hulsey who said, according to Humphries, that he could
not let Humphries work "because of the insurance situ-
ation." The forced, though excused, absence continued for
8 working days until midday Wednesday, August 24, when
Humphries was permitted to return to his work. While he
had been temporarily on the second shift at the time of his
injury. he was assigned back to his regular first shift job,
which commenced daily at 6 a.m.
On Saturday, August 27, employee Humphries came in 3
hours late. He testified that he had not been late before, his
first shift Supervisor Wayne Nichols corroborated this, and
the personnel file was devoid of any reference to an earlier
delinquency. Humphries sought out his supervisor Wayne
Nichols and told Nichols that he had overslept. Nichols
took Humphries to the head of the spinning and winding
departments, David Ray, and asked Ray what he should do
with Humphries. This in itself was an unusual step, partic-
432
FAYETTE (COTTON MII.I.
ularly for a first-time tardy. because. as indicated by the
testimony on the subject provided hby Assistant Plant Man-
ager Smith, the shift supervisors were in charge of attend-
ance and attendance records and of whether tardiness or
absence was excused or unexcused.' 0
According to Department Head Ray. he said to Supervi-
sor Nichols, with employee Humphries present. well he has
come in, let him go to his job, it is not covered by a regular
doffer.
Employee Humphries testified he was not given a warn-
ing for being late that morning, August 27.
Supervisor Nichols claimed he gave employee Hum-
phries an oral or verbal warning that morning. and further
claimed that a note he put in Humphries' personnel file,
G.C. Exh. 5, was a record of the verbal warning. However,
the note reads:
"Douglas Humphries 8--27 77. I talked to Douglas to-
day about reporting late. He states he overslept.
Wayne Nichols."
Supervisor Nichols conceded that he does not give warn-
ings every time an employee comes late or fails to give
advance notice that he or she will be late or absent, and
particularly that he may not give a warning the first or even
the second time an employee comes in late. He further tes-
tified that he may talk to the employee who was late or
absent, but that the talk is not necessarily an oral or verbal
warning, and that it is not a warning if he does not state to
the employee that it is a warning. Nevertheless, said Nich-
ols, he may make a note of the talk for his own use. Nichols
further conceded, as is apparent from the text of the file
note, G.C. Exh. 5 above, that his note does not state that he
gave employee Humphries a warning or a verbal warning.
But, said Nichols, notwithstanding this was the first occa-
sion that employee Humphries had come late, he, Nichols.
did more than he wrote down, and gave Humphries a ver-
bal warning in the presence of Department Head Ra.
However, in his testimony concerning the August 27 inci-
dent, Department Head Ray gave no testimony in support
of Supervisor Nichol's claim of a verbal warning to Hum-
phries. Moreover. Assistant Plant Manager Smith. who tes-
tified that he made the decision to discharge Humphries on
September I based upon the memoranda in Humphries'
file, admitted there was no record of a verbal warning in the
file, and that Nichol's note of August 27, G.C. Exh. 5
above, was not a record of a verbal warning."
In the circumstances I do not credit Supervisor Nichol's
claim that he gave employee Humphries a verbal warning
in connection with his reporting for work late on August 27.
Is Supervisor Nichols testified that he personally, as well as the company.
was opposed to the Union coming into the plant. and that he used any
occasion employees discussed the matter with him, to tell them so.
Ai Typical records by supervisors of verbal warnings in 1977 and late 1976
are exhibits G.C. Exh. 9. G.C. Exh. 19. Resp Exh. 12. Resp Exh. 21. and
Resp. Exh. 26. which are either labeled verbal warning, or state in the body
of the memorandum that the warned employee was verhally or orally
warned, or both. Resp. Exh. 3 is an example of a verbal warning, by Super-
visor Nichols. gen to employee Gail Hamm. citing that Nichols had gone
over, with the employee, her record of absences and told her that henceforth
she would be given wntten warnings when absent without a doctor's excuse
or proper notice.
Digressing momentarily. Respondent has a set of w ritten
plant rules, G.C. Exh. 4, which specit a progression of
disciplinary steps that will be taken if' infractions occur.
Thus, plant rule 1. the rule directly involved in this case.
prohibits unauthorized or excessive absence or late arrival:
and it is provided that infractions of the rule will result in
(I ) a verbal warning for the first oflense: (2) a written warn-
ing for the second offense: (3) a disciplinarx layoff or dis-
charge for the third offense: and (4) discharge for the fourth
offense) 2
Plant Manager Smith testified that under the plant rules
a verbal warning is required for the first offense against rule
I (unexcused lateness or absence).
Continuing with the events preceding the discharge of
employee Humphries, on Tuesday. August 30. Humphries
was absent from work without calling in. According to
Plant Manager Smith, an employee is expected to call in 4
hours in advance of being out, or if the cause arises in less
than 4 hours, he is expected to call as soon as he knows.
Other than saying that he had no telephone. Humphries
provided no excuse when he reported in the next day).
Wednesday. August 31. He was taken again to Department
Head Ray's office, and was given a written warning by Su-
pervisor Wayne Nichols. C. Exh. 3, dated August 31.
1977, stating that Humphries was being warned for an "un-
reported and unexcused absence. Disciplinary action will
be taken on the next offense."
On Friday morning, September 1. employee Humphries
came to work at 6:30, 30 minutes late. lie told Supervisor
Nichols he had overslept. Nichols, put Humphries on his
job and had him complete the doffing for the first I hour
round, but at 7 a.m. Nichols took him off the job and to
Department Head Ray's office. Ray told Humphries he was
not going to decide now about discipline but that Hum-
phries should go home and Ra, would be in touch. When
Nichols indicated that Humphries would be bringing his
wife in at 2 p.m. (for the second shift), Ray suggested that
Humphries stop in his office at 2 p.m.
Meantime Department Head Ray and Assistant Plant
Manager Smith consulted, as the, so testified. and Smith
made the decision, he said, that Humphries was to he fired.
He made this decision to discharge, testified Smith, not-
withstanding his acknowledgement that ( I ) in the vast ma-
jority of cases for absenteeism, following the progression of
discipline prescribed by the plant rule, the discipline of a 3-
day layoff has preceded the final discipline of discharge: (2)
there was absent from the written warning to Humphries
notice that he would be fired for the next infraction (it
stated only that "disciplinary action" would he taken),
which was likewise an uncommon deviation from the prac-
tice if the 3-day layoff was to be omitted: (3) that, contrary
to the plant rule, a prior verbal warning had not preceded
the written warning: and (4) that in his 7 years of employ-
ment, employee Humphries had given no previous cause for
discharge.
Additionally, Assistant Plant Manager Smith directed
that the separation notice issued to employee Humphries.
G.C. Exh. 6, be checked to indicate (as it was) that he
u Some of the other rules pros ide for different ant more evere progres-
sion of discipline. and some, such as rule 42 failure to report for 3 consecu-
utse work .das prolides discharge rfor the tirlt offene
433
D)E('ISIONS OF NATIONAL. LABOR REL.ATIONS BOARD
would not he rehired. Smith testified that he so directed.
and would not recommend rehire of Humphries, although
in umphries' seven years of employment his work had
been good and his attendance record clean until the first
aberration in the week of his firing. His reason for discharg-
ing and refusing to recommend rehire of Humphries. said
Smith, was that after tlumphries received his warning he
did not see fit to improve the situation that called for the
warning, and that three infractions (2 times late and I day
absent) in 5 working days justified both the firing, with
omission of the verbal warning and 3 day layoff steps of the
four-step procedure, and the decision to bar Humphries
from rehire.
Assistant Plant Manager Smith did not discuss the dis-
'charge or these alleged reasons with employee Humphries.
Instead he told Department Head Ray to discharge Hum-
phries. At 2 p.m. on September 1, when Humphries came
back to Ray's office, as arranged. Ray told Humphries that
because of the "flagrant" situation in violating plant rule I
three times in 5 working days it was best to terminate his
employment: and he was handed the separation notice,
G.C. Exh. 6 dated September I (prepared by Supervisor
Nichols), that contained the notation that he would not be
rehired.'
2. Comparisons with other cases
Assistant Plant Manager Smith testified that the dis-
charge. and decision to bar rehire, of employee Douglas
Humphries was an application of plant rule I as uniformly
applied to any other employee.
The evidence indicated otherwise. For example, em-
ployee Tony Nelson, also a first shift doffer. not as fast a
doffer as Humphries was, hut not active for the UInion as
Humphries had been. testified, without contradiction that
he, Nelson, had been late for work three or four times per
month, including the period of time both before and after
Humphries was fired, without any warning or discipline or
even docking of pay: that on most of such occasions, either
or both employees Nick Nichols (an overhauler or fixer)
and Jack Dunn (a spindle plumber) would come for him
and take him to work, as that he was coming in on those
days 35 to 40 minutes late; and that when he came in late
he would find another employee, and even Supervisor
Wayne Nichols, covering the job for him. lHe recalled one
recent occasion when overseer. now supervisor, Euel Her-
ron thanked him for having come in, though late. Employee
Nelson further testified that on none of these occasions did
he telephone in to the plant to indicate that he was going to
be late or not coming in, he simply slept: and that if an
employee or employees did not come from the plant to
fetch him he frequently did not come in at all. He testified
that he was aware of the 4-hour advance call-in rule to
indicate lateness or absence but paid it no heed. On the
days that he stayed out, said Nelson, he suffered only dock-
ing of pay for those days. One of those days included a day
in early 1978, about a month before the hearing, when, said
Nelson, employee Nick Nichols came to fetch hint: but he
1i Ray conceded that plant rule I says nothing about "flagrant" situations
or violations.
would not go to work, saying he could not make it, he had
gotten drunk the night before. In 1977, said Nelson, he re-
ceived one warning slip in connection with one of his unex-
cused absences: but that, in the same year. he was talked to
only once about coming in late, by Department Head Ray,
however, without any accompanying warning, verbal or
written. In 1978, to the time of the hearing, there had been
no talks or warnings about lateness to employee Nelson.
Ironically, on the last day in August 1977, when em-
ployee I)ouglas Humphries was handed his one and only
warning (for the unexcused absence the previous day) and
told employee Tony Nelson about it, said Nelson, he (Nel-
son) had come in late without any talking to or warning
from anyone and found overhauler Nick Nichols doffing
the frame for him.
l.ooking at contemporaneous records of unexcused late-
ness or absence of other employees, employee Frank
McCafferty, who was hired in January 1974, began a series
of absences without notice or call-in in early 1976. He was
given a written warning on March I. 1976, a 3-day disci-
plinary layoff on March 29, 1976. and told he would be
terminated next time, and a discharge on July 27. 1976.
which said he would be rehired if he could work regularly
(G.C. Exh. 7): but, as Assistant Plant Manager Smith testi-
fied. McCafferty was either retained or almost immediately
reemployed.
Employee McCafferty's infractions continued. On Sep-
tember 13. 1976, after a consecutive 7-day absence without
notice or call-in. McCafferty was given merely a verbal
warning.
Assistant Plant Manager Smith testified that under Re-
spondent's plant rules unreported or unexcused absence is a
more serious infraction than unexcused or unreported late-
ness, that not coming in at all is a more serious offense than
coming in late, and accordingly plant rule 42 provides for
immediate discharge for not reporting for 3 consecutive
days. The same is not true for consecutive latenesses, he
said, which would be governed by the progressive steps of
warning and discipline applicable to infractions of plant
rule 1. In this connection. Smith also testified that Respon-
dent's plant rules on attendance were the same before they
were formalized into written form in 1977 (G.('. Exh. 4):
and concerning employee McCaferty, said Smith, he
should have been fired forthwith on September 13, 1976.
Nonetheless, McCafferty was given only the verbal warn-
ing. Finally, after more absences without notice or call-in,
McCafferty was fired on November 4, 1976 (his second dis-
charge in five months), for excessive absenteeism.
Employee Dennis Aldridge was hired and fired three
times between August 8, 1974, and October 3, 1977, each
time discharged for poor attendance, consisting of unre-
ported and unexcused absences from work. Prior to each
discharge he was taken through the progressive steps of
counseling or talking about his problems, warnings, and 3-
day disciplinary layoffs. The infractions before the second
discharge. January 31, 1977, were labeled by Assistant
Plant Manager Smith as "flagrant": yet the discharge (G.C.
Exh. 8) indicated that Respondent would rehire employee
Aldridge. And, he was rehired less than 2 months later, on
March 21, 1977. Again he indulged in absences from work
without reporting or calling in. received warnings and a 3-
434
FAYETTE COTTON MIIL.
day disciplinary layoff, and was discharged on October 3,
1977, for the third time for his unexcused absences. noting
also his prior and second discharge for the same reason.
This was a month after the discharge (and only discharge)
of employee Douglas Humphries. who was fired with the
unqualified notation that he would not he rehired. Yet em-
ployee Aldridge's third and contemporaneous discharge
(G.C. Exh. I I) contains a notation indicating that he would
be rehired if he made a change in his habits!
Employee Eddie James Gilpin worked for, and was dis-
charged by, Respondent three times, each time of absentee-
ism without reporting or sending word. The first such dis-
charge occurred in August 1965 (G.C. Exh. 13). The second
occurred on March 11, 1976, after 6 days' absence without
reporting or sending word (G.C. Exh. 14). Gilpin was reem-
ployed for a third time on October 12, 1976, yet when his
absences without reporting and then a written warning and
three day disciplinary layoff on March 13, 1977, and finally
his third discharge on April 11, 1977.
Employee Therman Selman was hired and discharged
eight times, each time for too many absences without leave.
call-in, or excuse, over a period that began in March 1959
and finally ended in March 1977. (There were large gaps in
that period when he was not employed by Respondent.
such as the 4 years between mid-1969 and mid-1973, and
others.) The absences included many that ran 3 or more
consecutive days at a time, some as many as 8 or 9 or more
consecutive days at a time, some as many as 8 or 9 consecu-
tive days. Coming down to the last two hirings and dis-
charges, the seventh rehiring was in May 1975. followed by
oral warnings, for excessive absenteeism, three written
warnings, a disciplinary layoff of 3 days. and discharge in
August 1976. Selman was rehired for the eighth time in
September 1976, and again received counseling, warnings,
and a 3-day disciplinary layoff, for continued excess absen-
teeism, and incurred his eighth and final discharge on
March 7, 1977.
In comparing this record of absences, counseling, warn-
ings, disciplinary layoffs, discharges. and reemployments of
Therman Selman with the record of Douglas Humphries.
who had been absent I day and late twice in I week of 7
years of continuous employment and was immediately dis-
charged without benefit of two steps of the disciplinary pro-
gression and with the employer's determination that he
would not be rehired, Assistant Plant Manager Smith was
asked if he thought there was uniform application of the
company policy, as to discipline and the determination that
Humphries was not eligible for reemployment. Smith
blandly replied that he thought that Humphries had re-
ceived uniform application of company policy."
" Without identifying any specific employees, Assistant Plant Manager
Smith testified generally that with the new plant expansion in 1975-76 and
the need thereafter for many additional employees including some with ex-
perience, Respondent obtained a number of experienced employees by hiring
former employees by hiring former employees who had quit or been dis-
charged. However, Smith made no effort to explain or justify the multiple
hirings and discharges, after the expansion hiring had been inaugurated, in
cases of employees such as Selman, Aldndge, Gilpin, and McCafferty.
above, who continued to offend against the attendance rules and were re-
hired additional times. Nor did Smith provide any explanation for not allow-
ing experienced and able employee Humphnes to have at least one such
second chance.
Later. Smith suggested that the significant factor in im-
posing the peremptory discharge and decision not to rehire
Humprhies was that his three infractions (of I day and 2
days late) occurred in the span of 5 days. as compared with
the records of others not so peremptorily treated whose in-
fractions though greater. were spread out over longer peri-
ods of time.
General Counsel referred to the record of. and contrast in
handling, employee Lewis Kemp, a longtime employee like
Humphries. On March 8. 1976. employee Kemp was given
a written warning of excessive past absences and told he
would be disciplined the next time (Resp. Exh. 6). On Sep-
tember 16, 1976. after being absent September 11. 13. 14.
and 15 without excuse or notice to Respondent 4 out or 5
days. actually 4 consecutive work days because September
12 was a nonwork day. Sunday Kemp was given a further
warning and a disciplinary layoff of 3 days (G.C. Exh. 22).,
though he should have been peremptorily discharged under
plant rule 42. Nevertheless, he was not discharged until No-
vember 9, 1976, after further absence without notice (Resp.
Exh. 7).
Employee Gail Hamm received a first oral warning for
excessive absenteeism on March 3. 1976 (Resp. Exh. 3). On
December 7. 1976, she received a second written warning
which stated that her excessive absences had been reviewed
with her and she had been out 69 days in the preceding II
months. Asssistant Plant Manager Smith agreed that em-
ployee ltamm's 69 absences in approximately a period of a
year was a flagrant record of absences. as compared to em-
ployee Humphries record of I day absence and 2 days late.
Nevertheless, employee Hamm was not discharged until
April 24, 1977. after continutied excessive absences and more
warnings (G.C. Exh. 13)."
Employee David Chesler Wilkinson was another em-
ployee with a bad attendance record, hired and fired more
than once. His first employment with Respondent was tem-
porary: his second employment, beginning July 22. 1974.
was permanent and ended in discharge when he walked out
of the plant without notice, according to Assistant Plant
Manager Smith. He was rehired Ibr a third time, perma-
nently, on August 30, 1976. Five weeks later, on October 8.
1976. he received a verbal warning (G.C. Exh. 19) for
absenting himself from work 2 consecutive days: while he
claimed he had been sick he admitted going out in the cool
night air to visit his girl friend, and the absences were not
excused. Two months later, on December 10, 1976, he was
given a first written warning for 13 days' unexcused ab-
sences in his less than 3-1/2 months of employment (G.C.
Exh. 20). Within less than 5 days after December 10 he was
absent again without excuse and received, on December 15.
1976, a second written warning and a 3-day disciplinary
layoff (G.C. Exh. 21) for continuing excessive absenteeism.
Thus. notwithstanding the concentration of 14 days' unex-
cused absences in a 3-1/2 month period of employment,
t1 Respondent's counsel attempted to prove that emploee Hamm's 69
absences in 1976 were excused absences. but the file indicated that the em-
ployee sought to supply unsigned doclor's excuse." which the supervisors
rejected There was some evidence of a few signed excuses. hut ohsiously
from the warnings. and discharge. and Respondent management's view that
the absences and employee Hamm as not tired for multiple excused ah-
sences
435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilkinson was accorded the benefit of multiple warnings
and disciplined by only a 3-day layoff. He was discharged a
month later, on January 21. 1977, for continued excessive
absenteeism.
Even for 3 month probationary employees, who violated
the attendance rules, Respondent applied the stepwise pro-
gression of warnings and disciplinary layoff before dis-
charging the employee, said Assistant Plant Manager
Smith. Thus, probationary employee John Swayney, hired
September 13, 1976, was given a written warning on No-
vember 20, for being absent 2 days, November 16 and 17,
without calling in. He was given another written warning
December 2 for being out again on December I without
calling in. Swayney was also given a 3-day disciplinary lay-
off, and, when he returned after the layoff, he was late for
work, and was discharged on December 10, 1976.
Likewise, 3-month probationary employee Delores
Swayney, who was hired September 13, 1976, received
within 2 months, on November 7, a verbal warning for
being absent without notice: then a written warning on No-
vember 20 for being absent 2 days without notice or calling
in, and a warning of discipline for the next infraction: then
a second written warning, on December 2, plus a 3-day
layoff, for further absence without notice or call in, with
notice that the next similar offense would result in dis-
charge; and finally discharge on December 10. 1976, for
being absent that day without notice or call in.
In all of these cases the employees who were delinquent
in observing the attendance rules received multiple warn-
ings and 3-day disciplinary layoffs, prior to discharge, for
continuing to violate the rules, even in some cases where the
infraction was a violation of plant rule 42 (failure to report
for 3 consecutive work days) where the penalty was dis-
charged forthwith for the first offense.
The benefit of the plant rule procedures was not accorded
to employee Humphries, who received only one warning
and then discharge in connection with his having been ab-
sent I day and late twice. For him, there was no precedent
second warning and no precedent disciplinary layoff.
Respondent contended that there were six other cases
where discharge of the employee was not preceded by a
disciplinary layoff. However, Respondent has failed to note
that in at least five of the six cases, and possibly in the sixth
as well, the infractions involved, in addition to violation of
plant rule 1, violation of plant rule 42 (failure to report for
3 consecutive work days) where the rule called for immedi-
ate discharge without preliminary warnings of disciplinary
layoff.
Thus, employee Sandra Byars, received only a warning
on November 23, 1976, for 4 consecutive days of unexcused
absences on November 18, 19, 20, and 22 (Resp. Exh. 24).
November 21 was a nonwork day, Sunday. On January 31,
1977, she was discharged (Resp. Exh. 25), the discharge
noting that there had been prior oral and written warnings
for excessive unexcused absences, and failure to report
without word for three consecutive days, January 28, 29,
and 31, 1977 (January 30 was a nonwork day, Sunday).
Plant rule 42 had been violated twice by employee Byars in
the space of 2 months, yet it was not until the second time
that she was peremptorily fired.
Employee Brenda Bircheat worked 3-1/2 months for Re-
spondent. She was hired on Novemnber 17, 1976. was given
an oral warning on January 31, 1977 (Resp. Exh. 12), and a
written warning on February 2. 1977 (Resp. Exh. 13) for
continued unreported absences, and then discharged on
March 7, 1977, (Resp. Exh. 14) for the same cause, with the
indication that she had not reported since, and last worked
on, March 4, 1977, which in itself justifed the peremptory
discharge without any prior. lesser discipline.
Employee John Hallawood received a written warning
on Jul)' 19. 1976, for being absent without calling or send-
ing word on July 18 (Resp. Exh. 18). On February 2, 1977.
he received a second written warning, for staying out from
work without calling in or sending word (Resp. Exh. 19).
On February 24, 1977, he was fired for excessive absences,
the discharge noting that though work was available he
would not report for work regularly and that he last worked
2 hours on February 20 (Resp. Exh. 20). Hence he had
failed to report 3 consecutive work days, which was a viola-
tion of plant rule 42 subject to immediate discharge without
prior discipline.
Employee Truman Morgan was given a verbal warning
on March 29, 1977, for previous absence without calling or
sending word (Resp. Exh. 2 1). He was given a written warn-
ing on May 24. 1977, for further excessive absences without
notice or calling in (Resp. Exh. 22). He was discharged on
June 9, 1977 (Resp. Exh. 23), the discharge noting that at-
tendance and job performance was not satisfactory, and
that he had worked only 1 hour since June 1. Hence he had
been absent without calling or sending word for 7 or 8 days
immediately prior to discharge in violation of plant rule 42,
subject to immediate discharge without prior discipline.
Employee Scott Kelley received a verbal warning on
January 17, 1977. for not reporting to work on the previous
Saturday and prior occasions (Resp. Exh. 26). On August 2,
1977, he was given a written warning for unreported and
unauthorized absences on July 30 and August 1, indicating
he would be subject to disciplinary layoff or discharge for
the next offense (Resp. Exh. 27). On September 16, 1977,
employee Kelley was discharged for unreported and unau-
thorized absences though work was available, the discharge
noting that he had last worked September 13 (Resp. Exh.
28). Thus, Kelley had absented himself for 3 consecutive
days, in violation of plant rule 42, subject to immediate
discharge without benefit of a prior disciplinary layoff.
The sixth case advanced by Respondent was that of em-
ployee Robert Walker. Walker was given a first warning
(verbal) on December 7, 1976, for being absent the previous
day without call or sending word (Resp. Exh. 15). He re-
ceived a second warning (written) on January 4, 1977 for
excessive unexcused absences, noting he was orally warned
many times and if there was no improvement disciplinary
action would be taken (Resp. Exh. 16). On January 10,
1977 he was discharged for unsatisfactory attendance, the
discharge noting that he had last worked January 8 (Resp.
Exh. 17), absenting himself for 2 consecutive days prior to
discharge. Thus, in I month, Walker had been absent with-
out word or calling in for a considerable number of days,
the last 2 of which before discharge had been consecutive,
and though Respondent did not provide the details, from
the nature of the second warning the prior absences were
436
FAYETTE COTTON MILL
clearly multiple absences (that may have also violated plant
rule 42 if three or more of them were consecutive).
It should also be observed that in the discharge of em-
ployee Walker he was rated a "poor" employee, in contrast
to employee Douglas Humphries who was rated a "good"
employee. Likewise, employees John Hallawood and Tru-
man Morgan were rated "poor" employees, and employees
Sandra Ryan, Scott Kelley, and Brenda Bircheat were rated
only "fair" employees.
Even more significant, in comparing these six cases with
the case of employee Douglas Humphries is the fact that
each of the six employees had been given two or more
warnings for their infractions of the attendance rules,
whereas Humphries was given only one warning.
3. Conclusion
In my view the evidence demonstrated that, notwith-
standing Douglas Humphries all-around good record as an
employee of 7 years, Respondent reached for the first ap-
parent opportunity that arose to rid itself of employee
Humphries, because of Respondent's hostility to the Union
and to Humphries as an employee who openly expressed
and demonstrated support for the Union. Indeed, Respon-
dent overreached, by violating its own plant rules and prac-
tice, first, in summarily discharging employee Humphries,
and bypassing the established system of progressive warn-
ings and discipline, for his relatively minor attendance in-
fraction, as compared to Respondent's application, and
even relaxed application, of such progression to much more
serious infractions by other employees; and second, by
compounding the summary discharge with a summary deci-
sion not to rehire employee Humphries, contrary to Re-
spondent's past and contemporaneous practice of rehiring
experienced employees regardless of bad attendance rec-
ords far worse than the total infractions by Humphries, and
even multiple discharges therefor.
For 7 years Douglas Humphries had been a good em-
ployee in his work performance, deportment, and conform-
ance with the plant rules of conduct. He had given Respon-
dent no cause for warnings or discipline. While supervisors
and management did not appreciate his espousal of the
union cause, nevertheless his union involvement did not ad-
versely affect his performance of work or good behavior.
Yet, the first time in 7 years, when employee Humphries
reported in late on August 27, 1977, the matter was brought
instantly to the attention of top management of the plant
by his shift supervisor Nichols taking Humphries to De-
partment Head Ray to decide what to do about Humphries
coming in late. This was most unusual, not only for an
employee being late the first time, not because shift supervi-
sors were in charge of attendance and attendance records
and of whether lateness or absence was excused or unex-
cused and of dealing with the delinquent employees. The
action indicated that employee Humphries was a marked
man, and, as it turned out, marked for discriminatory treat-
ment.
The same special actions, the shift supervisor taking em-
ployee Humphries to top management of the plant, oc-
curred on August 31, after Humphries had been absent Au-
gust 30 without calling in, and again on September I, when
he was late a half-hour.
For coming late the first time, employee Humphries was
talked to by Supervisor Nichols without warning (counseled
is an equivalent expression used by some of the supervi-
sors). For his first unexcused absence of a day, subsequent
to his first time late, Humphries was given a written warn-
ing. If applicable plant rule I had been followed, he would
have been given a verbal warning, but the step was skipped.
For coming late the second time, Humphries was sent home
and discharged the same day. Under applicable plant rule
1. he would have been given a disciplinary 3-day layoff.
Again, another step in the four step procedure was skipped.
Although Respondent contended that under plant rule 1,
it might shorten the four steps to three by making the third
step discharge after two prior warnings, the officer in charge
of the plant, Assistant Plant Manager Jack Smith, conceded
that so far as he knew in plant rule I cases the discipline of
a 3-day layoff preceded the final discipline of discharge.
Moreover. Respondent was unable to produce a case other
than Humphries' to substantiate omission of the step.
Respondent brought in a half-dozen cases supposed to
substantiate the contention, but these were not comparable
cases. In these cases, the employees involved also violated
plant rule 42 (failure to report for 3 consecutive work days)
under which the discipline was discharge for the first of-
fense, without prior warnings or disciplinary layoff. Even in
these supposed examples, and in other examples put in by
General Counsel, there were instances where the employees
had been absent without calling in or sending word for 3 or
more consecutive days, and the penalty of discharge forth-
with had not been applied by Respondent when it might
have been.
Cases such as those of employee McCafferty, Selman,
Kemp, Byars, and others, also demolished Respondent's
further argument that there was something especially fla-
grant about Humphries' three infractions of plant rule I in
5 working days that justified, if not required, invoking pe-
remptory discharge without going through the prior steps of
warnings and disciplinary layoff contemplated by the rule.
Those cases furnished examples of successive absences by
the employees without notice or calling in, concentrated in
3 and more successive days, where Respondent withheld
imposing the penalty of the discharge prescribed by plant
rule 42 and passed over the infractions with no more than a
warning. Further weakening any attempted justification for
bypassing the stepwise procedure of plant rule 1, was the
admission by Respondent's chief plant officer Smith that an
unexcused absence is a more serious infraction than an un-
excused lateness, that not coming in at all is worse than
coming in late, hence rule 42 provides for immediate dis-
charge for not reporting for three consecutive days but does
not apply to tardiness whether consecutive or not or to the
lesser absences governed by plant rule I.
Further underscoring the disparate treatment accorded
employee Humphries, was the absence of any other in-
stance of a discharge for infractions of plant rule 1 where
the employee did not receive at least two prior warnings.
From the cases submitted by both sides, the evidence
showed at least two warnings, and sometimes more, preced-
ing the discharges for all but employee Humphries. Yet his
total infraction, I day absent and 2 days tardy in 7 years of
continuous employment, was far less serious than any of the
cases covered by the evidence.
437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Last, hut not least, in this record of disparate treatment,
was Respondent's decision, made simultaneously with the
discharge, to bar employee Humphries from reemployment.
Respondent claimed it had a policy since its 1975-76 ex-
pansion to rehire former experienced employees and,
whether the practice started then or earlier, its rehires in-
cluded employees who had been discharged for, among
other reasons, excessive unexcused absenteeism, rehired in
some instances not merely once but two or more times even
though their further discharges were for excessive unex-
cused absenteeism. Employees McCafferty, Aldridge, Gil-
pin, Wilkinson, and Selman, were among the examples of
rehired employees who were discharged two, three, and
even eight times (in Selman's case) for excessive, unexcused
absenteeism. In employee Aldridge's third discharge for un-
excused absenteeism, a month after employee Humphries
was discharged, it was stated that Aldridge would be re-
hired again if he changed his habits.
Respondent's harsh, summary, and disparate treatment
of Union Activist Humphries, in disregard of the applicable
plant rule and practice concerning the progression of disci-
plinary steps before discharge and of the policy and prac-
tice regarding rehiring, compared to the normal as well as
more lenient treatment accorded the many other employees
who were not union activists, was obviously discriminatory.
Such discrimination, without plausible explanation by Re-
spondent coupled with its hostility to the Union, gives rise
to the inescapable inference that Douglas Humphries was
discharged and barred from reemployment in reprisal for
his union activities and to discourage union membership
and support among the employees, in violation of Section
8(a)(3) and (1) of the Act. As stated in McGraw-Edison
Company v. N.L.R.B., 419 F.2d 67, 75 (8th Cir. 1969), "Ille-
gal motive has been held supported by a combination of
factors such as coincidence in union activity and discharge
... general bias or hostility toward the union . . . variance
from the employer's normal employment routine ... and an
implausible explanation by the employer for its action...."
For comparable Section 8(aX3) and (1) findings, derived
from misuse of, or deviation from, plant or company disci-
plinary systems and practice to discriminate against union
sympathizers, see The Keller Manufacturing Company, 237
NLRB 712 (1978); Gillette's, The Country Place, 226 NLRB
819, 822 (1976); Barko Hydraulics, Inc., 225 NLRB 1379,
1382-83 (1976); and Ramelli Building Maintenance Service,
Inc., 224 NLRB 815, 817-818 (1976).
CONCLUSIONS OF LAW
1. By warning employees of the futility of voting the
Union in; by threatening plant closure if they voted the
Union in; by coercively interrogating employees on why
they desired and supported the Union, or why the Union
withdrew its election petition just before the election, and
on what withdrawal would do to their support of the
Union; and by disparaging the Union in the eyes of the
employees, Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
2. By summarily discharging and denying the right of
reemployment to employee Douglas Humphries, on Sep-
tember 1, 1977, for infractions of the plant attendance rule,
disregarding and shortcutting the plant rule and practice
concerning the progression of warnings and discipline for
such infractions and disregarding the plant policy and prac-
tice governing rehire of experienced employees, in reprisal
for employee Humphries union activities and to discourage
union membership and support among the employees, Re-
spondent engaged in an unfair labor practice within the
meaning of Section 8(a)(3) and (I) of the Act.
3. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
TtIF REMEDY
It will be recommended that the Respondent:
(1) Cease and desist from its unfair labor practices.
(2) Offer to reinstate employee Douglas Humphries, and
give him backpay from the date of his discharge, September
I. 1977, said backpay to be computed on a quarterly basis
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
approved in N.L.R.B. v. Seven-Up Bottling Co., 344 U.S.
344 (1953), with interest as prescribed in Florida Steel Cor-
poration, 231 NLRB 651 (1977).'?
(3) Post the notices provided for herein.
And because the Respondent violated fundamental em-
ployee rights guaranteed by Section 7 of the Act, and be-
cause there appears from the manner of the commission of
this conduct an attitude of opposition to the purposes of the
Act and a proclivity to commit other unfair labor practices,
it will be further recommended that the Respondent:
(4) cease and desist from in any manner infringing upon
the rights guaranteed by Section 7 of the Act. N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941); P.R.
Mallory and Co. v. N.L.R.B. 400 F.2d 956, 959-960 (7th
Cir. 1968), cert. denied 394 U.S. 918; N.L.R.B. v. Bama
Company, 353 F.2d 323 324 (5th Cir. 1965).
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:
ORDER'7
The Respondent, Fayette Cotton Mill, Fayette, Ala-
bama, its officers, agents, successors, and assigns shall:
I. Cease and desist from:
(a) Warning employees of the futility of voting the
Union in.
(b) Threatening plant closure if employees vote the
Union in.
(c) Coercively interrogating employees on why they de-
sire and support the Union, or why the Union withdrew its
election petition, or what withdrawal would do to their sup-
port of the Union.
(d) Disparaging the Union in the eyes of the employees.
' See. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived or all purposes.
438
FAYETTE COTTON MILL
(e) Discharging or disciplining employees. or barring
them from reemployment, for infractions of the plant at-
tendance rules without regard to the prescribed system of
warnigns and discipline and the policy for rehiring experi-
enced employees.
(f) Discouraging employees from support of or member-
ship in the Union or other labor organization by discharge
or other discrimination affecting their tenure or conditions
of employment.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make employee Douglas Humphries whole, in the
manner set forth in the section of this decision entitled "The
Remedy," for any loss of earnings incurred by him as a
result of his discharge on September , 1977.
(b) Offer to said employee immediate and full reinstate-
ment to his former job, or if the job no longer exists, to a
substantially equivalent postion, without prejudice to his
seniority or other rights and privileges.
(c) Preserve, and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to ascertain the backpay due under the terms of this
Order.
(d) Post in the plant at Fayette, Alabama, copies of the
attached notice marked "Appendix."'8 Immediately upon
receipt of said notice, on forms to be provided by the Re-
gional Director for Region 10 (Atlanta, Georgia). Respon-
dent shall cause the copies to be signed by one of its autho-
rized representatives and posted, the posted copies to he
maintained for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 10. in writ-
ing, within twenty days from the date of this Order, what
steps Respondent has taken to comply herewith.
" In the event that this Order is enforced b a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted b' Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
439