Franklin Hosiery Mills

National Labor Relations Board - Board Decisions

Mar 22, 1960

126 N.L.R.B. 1160 (N.L.R.B. 1960)

1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manchester Board and Paper Company, Inc. and United Paper-
makers and Paperworkers , AFL-CIO, Petitioner. Case No.
11-RC-1298. March 21, 1960
ORDER DENYING MOTION
On December 28, 1959, the Regional Director for the Eleventh
Region issued a certificate of results of election in the above-entitled
proceeding. Thereafter, on January 19, 1960, the Petitioner filed a
motion to revoke certification of results of election and on February
511960, a supplement thereto.
In its motion, the Petitioner urges that the Regional Director should
have treated its "charges" of unfair labor practices against the Em-
ployer as objections to conduct affecting the results of the election, in
view of the facts that the charges alleged unlawful conduct occurring
within the 24-hour period immediately preceding the election and that
a copy of the "charges" was served upon the Employer as required
by Section 102.69 of the Board's Rules and Regulations dealing with
objections. On February 1, 1960, the Employer filed opposition to
the Petitioner's motion. We find no merit in the Petitioner's conten-
tion. Whether or not copies of these "charges" were served upon the
Employer within the time and in the manner required in the case of
objections to conduct affecting the results of elections, the "charges"
were filed by the Petitioner on the Board form provided therefor,
according to the usual procedure for the filing of unfair labor practice
charges, and the Regional Director was justified in treating them as
such and not as objections. We find, therefore, that no timely objec-
tions were filed to conduct affecting the election results.
[The Board' denied the motion and the supplement thereto.]
1 Member Bean dissenting.
126 NLRB No. 142.
Franklin Hosiery Mills and American Federation of Hosiery
Workers, AFL-CIO. Case No. 11-CA-1488. March 22, 1960
DECISION AND ORDER
On November 9,1959, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report.
126 NLRB No. 151.
FRANKLIN HOSIERY MILLS 1161
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following modification.
We agree with the Trial Examiner's finding that the Respondent
discharged Dolpha Fouts in violation of Section 8(a) (3) and (1) of
the Act, for the reason stated in the Intermediate Report. We also
rely on the clear evidence, as described in the Intermediate Report,
that Fouts was one of the two employee leaders actively soliciting on
behalf of the Union, that the Respondent was aware of Fouts' union
activities, and that Respondent discharged Fouts as one of the Union
"ringleaders."
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Franklin Hosiery
Mills, Franklin, North Carolina, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in American Federation of Hosiery
Workers, AFL-CIO, or any other labor organization of its employees,
by discriminating in regard to their hire or tenure of employment or
any term or condition of employment.
(b) Interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, by threaten-
ing employees for engaging in concerted activities, threatening to
close the plant rather than work with a labor organization, seeking to
have employees inform as to the activities of union employees, in-
quiring of employees as to their views regarding membership in or as
to their activities in a labor organization, inquiring of employees as
to the concerted activities or union interest of other employees, or
fostering the impression among employees that their activities are
under surveillance.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, including the above-named
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining, or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right may
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Dolpha Fouts and Boyd Holland immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges, and
make them whole in the manner set forth in the section of the Inter-
mediate Report entitled "The Remedy."
(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 analyze the amount of backpay due
under the terms of his Order.
(c) Post at its plant at Franklin, North Carolina, copies of the
notice attached to the Intermediate Report marked "Appendix." 1
Copies of such notice, to be furnished by the Regional Director for the
Eleventh Region, shall, after being duly signed by an authorized
representative of the Respondent, be posted immediately upon receipt
thereof, and be maintained by it 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 the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Eleventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
A
This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding against Franklin Hosiery Mills, herein called the Respondent
or the Company , involves Section 8 (a) (1) and (3) allegations , and was initiated by
the American Federation of Hosiery Workers, AFL-CIO, herein called the Charging
Party or the Union. The General Counsel filed a brief with the duly designated
Trial Examiner.
Upon the entire record of the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, Franklin Hosiery Mills, a North Carolina corporation, main-
tains a plant at Franklin, North Carolina, where it is engaged in the manufacture,
FRANKLIN HOSIERY MILLS 1163
sale, and distribution of textiles . During the calendar year 1958 , the Respondent
manufactured, sold, and shipped products from its Franklin plant valued in excess
of $500,000 to points outside the State of North Carolina. It is found that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, American Federation of Hosiery Workers, AFL-CIO, is a
labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The issues presented are whether the Respondent engaged in specified acts and
conduct in violation of Section 8(a)(1) and discriminated against Dolpha Fouts on
January 30 and Boyd Holland on February 11, 1959, in violation of Section 8(a) (3)
of the Act.
B. The events
In July 1958, the Respondent's knitters engaged in a work stoppage over impend-
ing pay and task changes. The changes were to have related to the knitters on the
400 machines where certain time-studies had been conducted. The 400 machine
knitters ceased working and obtained the aid of the knitters on the 474 machines
who also shut down their machines. No work was performed by the knitters on
two or three shifts. During this time management conferred with the employees in
an effort to get them to return to work. After assurance the following morning by
Stephen Bundy, plant superintendent, that he had consulted with the New York
office, that there would be no decrease in wages or increase in tasks, and that new
time-studies would be conducted, the knitters returned to work. Among the princi-
pals in this work stoppage were alleged discriminatees Dolpha Fouts and Boyd
Holland then, 474 and 400 machine knitters, respectively. It was obvious to Bundy
that Fouts had a big hand in the shutdown of the machines. Foreman Clyde Poole
talked to Fouts about his activities in connection with the work stoppage.' Shortly
after the work stoppage Bundy also talked to employee Lloyd Cook in his office
and informed Cook that if the employees shut off their machines again it would
be the same as automatically quitting.
Time-studies were again conducted in January 1959. The knitters on the 400
machines indicated that they were prepared to cut off their machines if the tasks on
the 474 machines were raised and this came to Bundy's attention. Bundy also
heard that Fouts and Holland were going to shut down machines.
In the middle of January, Holland and Fouts wrote the Labor Temple in
Asheville asking for the help of a union organizer. On January 28, Robert Beame,
national representative of the Union, arrived at Franklin and saw Holland and
Fouts at their homes. Holland and Fouts signed union cards and on January 29
and/or 30, they made house calls upon employees in an effort to get them to sign
up with the Union. On January 30, Fouts was discharged at the close of his shift.
In the early part of February, Supervisor Dan Stewart and Bundy engaged in
certain activities alleged to be in violation of the Act. A few days after Fouts'
discharge, Cook told Stewart that he had heard that he, Cook, was among those
who were to be discharged and that he did not have anything to do with getting the
union cards signed. Stewart replied that he knew that but wanted to know who
had come to Cook's house. Cook stated that it was Fouts and employee Ralph
Sorrels. Stewart declared that he knew who the ringleaders were and also all those
who had anything to do with the Union. Cook thereupon stated that he had gone
with Sorrels to show him where someone lived, but that he did not witness any
cards. Stewart stated that if that was all there was to it, nothing would be done
about if but if there was more, there was going to be some changes made. Stewart
stated further that the Company would not work with the Union. About a week
later Cook heard Stewart telling employee Charles Coffman that the Company
would not work with the Union, that they never had and never would, and that
they would close the plant and ship the machines out. A few days later Stewart
inquired of Cook as to whether the boys had been around again .2
1 This subject will be treated in the section of this report dealing with the discrimina-
tion allegations.
2 These findings are based upon employee Cook' s credible testimony . Coffman was not
called as a witness . Stewart's inconsistent testimony is not , on the basis of the Trial
Examiner 's observations , credited. His denials will not be further noted.
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the credible testimony of employee Harold Welch, he asked Stewart
if he had a chip on his shoulder for him, Welch, for some reason. Stewart declared
that he did not know which side Welch was on. After some conversation about the
Union, Welch admitted to Stewart that he had talked to Beame. Stewart then
stated that he knew that within an hour or two after Welch had talked to Beame at
the motel, and inquired whether Welch had signed anything.
Bundy talked with employee Jessie Crisp about the task changes and earnings.
In the course of this conversation Bundy asked Crisp what he thought about a union
and also declared that some of the boys were trying to slap him, Bundy, in the
face with the Union .3
According to the credible testimony of Gilbert Moses, he was called into Bundy's
office by his supervisor, Bill Jones, and the three had a conversation. In the course
of this conversation Bundy stated that he had heard that Moses was one of the
employees who was causing the trouble at the plant, referring to the Union and
to the shutting down of the machines. Bundy also wanted to know who among
the employees was causing trouble and named several employees. Moses stated
that he did not know who was causing the trouble. Jones stated that some plant
in Tennessee went out of business after a union came in. Moses asked Bundy if
the plant would close down if the Union came in and Bundy replied that he did
not know what his superior would do about the matter.4
Beame, who had left the town on January 30, returned on February 9. The fol-
lowing morning some men entered his motel room and, among other things, as-
saulted Beame and removed some 50-odd union cards, a majority of which had
been witnessed by Holland and Fouts. The next day, February 11, Holland was
discharged. About a week later, according to the credible testimony of employee
Charles Corbin, Stewart declared that he thought that they had gotten rid of the
ringleaders.
The following events involving Stewart and Bundy occurred according to the
credible testimony of employee Nelson Stamey. Prior to Holland's discharge,
Stewart told Stamey that most of the trouble was on the second shift, the shift on
which Holland was employed, and that Holland was definitely in on the Union.
Shortly before the Beame assault incident Stewart asked Stamey if anyone had
solicited him to sign a union card and upon Stamey's affirmative reply, Stewart in-
quired who had solicited him to sign. Thereafter in another conversation Stewart
told Stamey that he, Stewart, would have to get rid of all the employees in on the
Union. On the day of the Beame incident, Stewart reported to Stamey that he had
heard some good news, that a union man had been run out of town. Shortly there-
after Stewart informed Stamey that he, Stewart, knew who had signed some cards,
and it looked like he was going to have to get rid of them. Around this time in the
course of the events, Bundy asked Stamey directly after Stamey talked with another
employee in the smoking area what he, Stamey, and the other employee were
talking about and declared that he had faith in Stamey. Stamey replied that they
had been talking about the work. Bundy stated that he believed that the other
employee was in on the Union and inquired of Stamey whether that was so. In
late February or early March, Stewart asked Stamey if he had been attending union
meetings and Stamey replied that he did not know anything about the meetings.
Stewart stated that Stamey knew that several named employees had been attending
these meetings and that he, Stewart, would have to do something about it.
After the Beame incident, according to the credible testimony of employee James
Young, Stewart told Young not to worry about having signed a card and that they
would get rid of the troublemakers. Also after the Beame incident, according to
the credible testimony of employee Otis Welch, while Shore Neal, divisional per-
sonnel supervisor, was visiting the plant, he asked Welch if he knew anything of
the confusion that they were having. Welch replied that he did not know about
the confusion and Neal suggested that if Welch found out anything that would be
of help to the Company to let him know.5
Around the middle of February, Ira Daike, an official of the Company, while
visiting the plant spoke with Sorrells. Daike, according to the credible testimony
of Sorrells, inquired, "What is this I hear about the Union?" And 'Sorrells replied
that he had not heard much talk lately. Daike stated that the employees were
s These findings are based upon employee Crisp's credible testimony. Bundy's incon-
sistent testimony is not, upon the basis of the Trial Examiner's observations, credited.
Bundy's inconsistent testimony will not necessarily be hereinafter specifically noted.
4 Jones did not appear as a witness.
s Neal testified that he did not recall this subject arising in his conversation with
Welch.
FRANKLIN HOSIERY MILLS 1165
going to get a substantial increase in pay and that it was to be announced the next
day.6 The following day Bundy announced certain wage and task increases to the
employees. Daike and Bundy explained in their testimony that the wage and task
changes announcement was made simultaneously at all the seamless hosiery plants
of Burlington Mills, of which Franklin Mills is a part, and that it had been under
consideration for some time.
C. The conclusions
1. Interference , restraint , and coercion
It is found that the Respondent violated Section 8(a)(1) of the Act by: (1)
Threatening to discharge employees for engaging in concerted activities through (a)
Bundy's threat to discharge employees who engaged in a work stoppage in a
declaration to Cook, and (b) Stewart's threat to discharge Cook if he had done
more toward organizing employees than point out where employees lived to those
soliciting union membership, his threat to discharge those connected with the Union
in declarations to Stamey, his threat to Stamey that he would have to do something
about employees who attended union meetings, his threat to Young that the Respond-
ent would get rid of union adherents; (2) threatening to close the plant rather
than work with a labor organization through Stewart's threat to Cook that the
Respondent would not work with the Union, and his threat to Coffman that the
Respondent would not work with the Union, that the Respondent never had or ever
would work with a labor organization and would close the plant and remove the
machinery; (3) seeking to have employees inform as to the activities of union
employees through Neal's suggestion to Otis Welch that he inform as to the activity
of union adherents; (4) inquiring of employees as to their views regarding member-
ship in or as to their activities in a labor organization through (a) Bundy's inquiry
of Crisp as to what he thought of a union, and (b) Stewart's inquiry of Harold
Welch as to whether he signed anything for a union organizer, and his inquiry of
Stamey as to whether he had attended union meetings; (5) inquiry of employees
as to the concerted activities or umon interests of other employees through (a)
Bundy's inquiry of Moses as to who among the employees had engaged in concerted
activities, and his inquiry of Stamey as to whether another employee was a union
member, and (b) Stewart's inquiries of Cook and Stamey as to who solicited the
membership in the Union, and (6) fostering the impression among employees that
their union activities were under surveillance through (a) Bundy's statement to
Moses that he had heard that Moses was one of the troublemakers, and (b) Stewart's
statements to Harold Welch that he knew about Welch's visit with a union
organizer an hour or two after the event, his statement to Stamey that he knew
who had signed union cards, his statement to Cook that he knew who the union
ringleaders were and also who had anything to do with the Union, and his naming to
Stamey employees who had attended the union meetings.
2. The discrimination
The Respondent explained through its witnesses that the immediate cause for
Fouts' discharge was that on the last day of his employment, January 30, 1959,
Fouts had been out of his alley some 28 minutes, and that the matter of not being
in his alley had been taken up with Fouts in the past. In addition, after having
given many reasons for Fouts' discharge during the course of his testimony, toward
the close of his testimony and Respondent's case, Superintendent Bundy stated in
response to an inquiry by the Trial Examiner as to the reasons for the discharges,
"Mr Trial Examiner, the reason for the discharge of Dolpha Fouts was horseplay,
staying out of his alley excessively, being in unauthorized areas, going in the shipping
room, when he should be on his job, and in general not looking after his work as
he should." Foreman Poole enumerated many objections to Fouts and then testified
that the reasons for Fouts' discharge were staying away from his work area and not
keeping his machines up as he should, horseplay, and objecting to and not cooperating
as to certain clipper attachments and rechecks.
At the end of the shift on January 30, Fouts who had worked for the Company
since July 1957, was called into Bundy's office and discharged. As already reported,
after the work stoppage in July 1958, which lasted about a day, Bundy and Poole
discussed the matter with Fouts. Poole then told Fouts, according to a reprimand
which he filed with the Company dated August 7, 1958, that Fouts should not have
shut off his own machine or the other employees' machines particularly when he was
not affected by the changes, that Fouts admitted to Poole that he had made a mistake,
6 Daike did not deny a reference to the Union in his conversation with Sorrells.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he would keep his mouth shut, that if changes were made that affeced him he
would take them up with Poole, and that he, Fouts, would not cause any trouble with
the other men such as trying to talk them into shutting off their machines. Accord-
ing to Bundy, when Bundy talked to Fouts about this matter somewhat later Fouts
also stated to Bundy that he had made a mistake and Bundy pointed out to Fouts
he had given them so much trouble that he was pushing them into discharging him.
Shortly prior to the discharge, as already noted, the Company was again conducting
time-studies and it had come to Bundy's attention that machines were to be shut
down by Fouts and Holland.
Both Bundy and Poole participated in discharging Fouts. Fouts' version of the
discharge incident follows. Bundy asked Fouts why he was causing trouble for the
plant and Fouts stated that he knew that he was automatically guilty because he had
participated in the last shutdown. Bundy stated that Fouts was right, and that he,
Bundy, did not forget anything or forgive anything. Both Bundy and Poole declared
that it was their observation that Fouts was trying to make trouble for the plant.
Bundy asked Poole whether he wanted to talk over the plans they had made. Poole
replied in the affirmative and then, addressing Fouts, stated that he had worked with
Fouts for 10 months, that Fouts had objected to certain clippers and rechecks, that
he just could not get along with Fouts, and that Fouts was terminated. In the
course of this interview Poole also asked Fouts what the men were planning to do
when the Company made the new task changes. Fouts stated that he did not know.
Poole declared that Fouts did not have to tell them as they knew that the men
planned to come in on the third shift, line up in front of the machines, and not let
others go to work.
In substance, Poole's version of the discharge incident is that he told Fouts that
he had tried to work with him for some 10 months, that Fouts would not cooperate
with Poole, that Fouts objected to every change Poole had tried to make and every-
thing he had tried to do, that it looked like Poole had gone about as far as he could
go with Fouts, and that he was terminating Fouts. Poole's version of the discharge,
like Fouts' version, does not mention the subject of Fouts being out of his alley.
Poole did not deny the other matters attributed by Fouts to Poole and Bundy as
having occurred in the exit interview.
When Bundy was first questioned by the General Counsel early in the hearing as
an adverse witness Bundy testified that he could not recall just what was said to
Fouts on the occasion of Fouts' discharge and that he could not recall whether Fouts
was told that staying out of his alley was a reason for the discharge. When Bundy
appeared as a final witness in the Respondent's case he testified that in the exit
interview he told Fouts that he was being discharged because his horseplaying was
way out of line, that he was staving out of his alley and neglecting his machine too
much, that they had taken these matters up with him, and that Fouts had been
given an opportunity to correct his ways. He testified further that on this occasion
Poole had mentioned horseplay, staying out of the alley, going into unauthorized
areas as the supply room, and that Poole had stated further that all these matters
had been taken up with Fouts time and time again.? Bundy did not deny the other
matters attributed to Bundy and Poole by Fouts as having taken place during the
discharge incident. Bundy also testified that Personnel Supervisor Earl Adams was
present when Fouts was discharged. Adams did not appear as a witness
The termination notice which the Company gave Fouts after his discharge shows
the following as the reason for the discharge:
Involuntary separation due to continual resisting and objecting to changes by
management, and acting in an uncooperative manner.
This termination form sets forth several possible reasons for separation including,
"Discharge for misconduct (connected with his work)" and "Other" to be checked
when applicable. Fouts' notice shows "Other" checked with the above-quoted
material in a space entitled "Remarks."
Upon the basis of the Trial Examiner's observations of the witnesses he finds
contrary to Poole's testimony and credits Fouts' testimony that he was not away
from his machine 28 minutes on January 30, but that he could have been gone for
about 10 minutes. Much of Fouts' version of the discharge incident is undenied.
His version of the discharge incident particularly as to the absence of any mention
7Relating to the discharge incident, Bundy also testified both (1) that Fonts thanked
Poole and Bundy for discharging him, stated that he did not like anyone around there,
and that they were nothing but a bunch of mice: and (2) that Fouts stated on this
occasion that he liked his job, and that he thought Poole was one of the best supervisors
he had ever had.
FRANKLIN HOSIERY MILLS 1167
of his being away from his alley on the day of discharge, is supported by Poole's
version of the incident and also by the absence of any mention of that factor on
Fouts' termination slip. It is accordingly found that the Respondent's explanation
as to the immediate cause for Fouts' discharge has not been substantiated and that
Fouts' version of the discharge incident is substantially as it occurred.
Bundy testified that on occasions he had seen a certain amount of finished work
in Fouts' machine indicating that Fouts had been away from his machine 28 or 29
minutes and that he did not know how many times this had occurred, and that he did
not know how many times he had taken this matter up with Poole.
According to Poole, Fouts was out of his alley and away from his machine a great
deal more than any of the other knitters, and that he was away from his work
either within his department or outside of it, loafing or horseplaying. Poole testified
further that Fouts being away from his alley was a constant thing that happened
every day, that he would talk to Fouts about it, that Fouts would improve maybe
for one shift, and that the next shift it would be the same thing. Poole explained
that he had spent about 10 months trying to get Fouts to stay in his alley. Poole
wrote up reprimands on Fouts. The first reprimand dated August 7, 1958, related
to the work stoppage and has already been mentioned. The respective dates and
subjects of the other reprimands follow: August 20, 1958, horseplay and roughing
up production clerk; September 18, staying away from alley and spending too
much time at the production counter; December 18, being away from work area and
being in shipping room which is an unauthorized area; and January 22, 1959, loafing
and smoking in an unauthorized area, namely the supply room. Poole testified
further that writing up a reprimand is discretionary and without the knowledge of
the employee, and that if he had written up a reprimand every time he caught Fouts
and Holland whose case is treated later, doing some of these things, he would have
spent all his time writing.
Although the Trial Examiner cannot credit Bundy's and Poole's testimony as to
Fouts' defects as an employee, there is some independent basis for complaints about
Fouts. For example, Fouts did spend time out of his alley and there is credible
testimony by employees Fred Wooten and Don Shope, who had been Fouts'
fixers, to the effect that in their experience as fixers they had not been associated
with knitters who were out of their alleys as much as Fouts had been out of his
alley; Fouts and Holland did on occasion engage in such horseplay as putting
production clerk Ed Smith in a cart on wheels and riding him around in the plant;
Holland and Fouts squirted water on each other, and there is credible testimony
by employees James Hinson and Myles Gregory to the effect that in their opinion
Fouts and Holland did engage in more horseplay than other employees; and it also
appears that Smith, Holland, Fouts, and certain other knitters had been in the
supply room which the Respondent considers an unauthorized area.
It does not appear that the Respondent was strict in regulating the conduct of
its employees in and around the plant. Thus, in addition to the horseplay described
above, men had been put into the showers on their birthdays and Poole told the
employees to stop this practice as it was dangerous; drag races were conducted
on the parking lot, and Poole suggested to an employee that he enter his car in the
races; nuts were kept and weighed at Smith's counter and to Stewart's knowledge were
sold at the plant; football pools or chances were conducted at the plant to Stewart's
knowledge; punch cards had been passed around among the employees during
working hours and this had been called to Poole's attention; and raffles involving
to Stewart's knowledge such items as watches and shotguns were conducted at the
plant as frequently as between twice a week and once a month with the drawing
taking place on working time and occasionally a supervisor doing the drawing,
and on one occasion Poole told an employee that he had no objection to a pistol
being the subject of the raffle but to keep the pistol out of Bundy's sight.
As to Holland's discharge on February 11, 1959, the Respondent explained through
its witnesses that the immediate cause for his discharge was that it feared violence
at the plant. In addition, as in the Fouts' matter, after much discussion of Holland's
defects as an employee, and Bundy's observation that one could make a carbon
copy of most of the reasons for the discharge of Fouts and Holland as they were
were together nearly all the time, in response to the same inquiry by the Trial
Examiner as in the Fouts matter as to the reasons for the discharges, Bundy stated
that, "The reason we terminated Boyd Holland was excessive horseplay, staying out
of his alley, excessive amount of time, being in unauthorized areas, being in the
shipping room, threatening our regular employees." Bundy thereafter changed his
testimony from threatening employees to threatening an employee The defects
Poole gave in his testimony concerning Holland may be summarized by a review
of Poole's reprimands regarding Holland. The subjects of Poole's reprimands and
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their respective dates regarding Holland follow: August 29 , 1958 , did not cooperate
during time-studies on his machine held August 27; November 12, horseplay,
staying out of alley , and bothering production clerk on his job; December 18, being
away from work area in shipping room in an unauthorized area; and January 22,
1959 , loafing and smoking in an unauthorized area, namely the supply room.
For the reasons stated above Bundy's and Poole's testimony as to Holland's
defects as an employee cannot be credited . Some examples of defects for which
there is an independent basis in the record involving both Holland and Fouts have
been given . In addition , the credible testimony of employee Tommy Norman is
to the effect that in his experience as a fixer , he did not have a knitter who stayed
away from his machine as much as Holland did.
On the day of his discharge, February 11, 1959 , Holland who had been in the
Company's employ since July 1957, was called into Bundy 's office before the com-
pletion of his shift . Holland 's version of the discharge incident which the Trial
Examiner credits, follows : Poole and Bundy were present. Bundy stated that he
had tried to give Holland and everyone else a fair deal, that he had gotten it straight
and not from a rumor that Holland was causing trouble for the Company , and that
in his position he, Bundy, could not take any chances. Poole stated that he felt that
the plant would be better off without Holland's presence . The subject of violence
was not mentioned and no further reason was given Holland. Holland was told
to get his coat in the knitting department and to leave by the back door.
Holland was given a termination notice which shows the following as the reason
for the discharge:
Involuntary separation due to uncooperative work procedures.
This is the same form as was used in the Fouts ' discharge . Here too the misconduct
reason was not checked and the above -quoted material appears under "Remarks,"
as relating to other reasons for separation.
Poole's version of the discharge incident is to the effect that he had told
Holland that they had a lot of trouble at the plant, that he was afraid of violence,
that for Holland 's and the other employees ' welfare Holland's presence at the plant
was no longer needed. According to Bundy's testimony when he appeared as an
adverse witness early in the hearing , Holland was told that they thought it would
be best for him not to be at the plant due to violence . According to Bundy's version
of the discharge incident given in the Respondent's case he and /or Poole mentioned
to Holland horseplay , staying out of his alley , and that Holland had been given the
opportunity to mend his ways. On direct examination in the Respondent's case
Bundy testified also that Holland was told that they feared that Holland's presence
at the plant might lead to violence and on cross-examination Bundy testified that
Holland was not told that his presence could or would lead to violence . Neither
Poole nor Bundy is credited as to what occurred at the time of the discharge.
The incident relied upon by the Respondent to explain the immediate cause in
Holland's case occurred the day before the discharge . As Poole testified that he
acted only upon the reports of employees Orville McFadden and Smith after this
incident , it is sufficient to pass upon what these employees told Poole concerning
the event and it is unnecessary to pass upon the details of the incident itself. Mc-
Fadden and Smith testified that they each talked with Poole the day after the event
which had occurred in their presence , and that the information they gave Poole
was the same as the testimony describing the event. According to the combined
testimony of McFadden and Smith , on the shift directly after Union Representative
Beame was run out of town and about an hour or two before the end of that shift,
while Holland and McFadden were at Smith 's counter, Holland talked about the
"stupid s-o -b's" who worked out there , which McFadden , who was against the
Union , took as a reflection upon those who were opposed to the Union. McFadden
inquired whether Holland had anyone in particular in mind and Holland asked
"what the H-" was wrong with McFadden . McFadden stated, "Nothing," that
he just did not like the way Holland was running off his mouth. At this time
Holland's brother appeared and asked what it was McFadden did not like. Mc-
Fadden stated to the brother that it was not any of his business . Holland pushed
his brother back into an aisle as the brother sought to make passes at McFadden
while the brother was behind Holland. When Holland got his brother back into the
aisle, Holland stated to his brother that they would get McFadden in town. At no
time did Holland raise his hand to McFadden . McFadden explained in his testimony
that Holland was trying to prevent violence at the plant and that he, McFadden, did
not think the matter serious enough to talk to Poole that night. Smith 's version does
not mention Holland 's brother and Smith also testified that Holland told McFadden
that any time McFadden wanted to fight , Holland would see him anywhere ; Neither
McFadden nor Smith reported this event to Poole during that shift.
FRANKLIN HOSIERY MILLS 1169
The next day, February 11, after McFadden reported for work, he told Poole
about the incident the day before as described above, suggested that he be assigned
away from Holland, and explained to Poole that he, McFadden , did not want to
cause trouble at the plant. Poole reassigned McFadden and declared to McFadden
that he did not know what he was going to do about Holland , and that he had
gotten a lot of trouble out of Holland. On this day Poole asked Smith about this
incident and Smith gave his version as to what had occurred.
It thus appears that neither Smith nor McFadden thought the incident serious
enough a problem at the plant to report it to Poole when it occurred . As men-
tioned , McFadden explained that it was Holland who was trying to prevent violence
at the plant. It does not appear that anything was done about Holland 's brother.
Poole admitted that he did not consider employees' conduct after they left work a
matter of his concern . Aside from Poole 's and Bundy's testimony which cannot be
credited , the record does not afford a basis for the Respondent 's position that it
feared violence at the plant.
Whatever defects in their conduct as employees Fouts and Holland may have had,
in keeping with the standards of conduct by employees generally, and to some extent
by supervisors , which were permitted to prevail in and around the plant , for a period
of many months the Respondent tolerated Fouts' and Holland 's performance. A
reprimand was not executed until the employees acted together in an effort to
resist changes in pay and tasks by engaging in a work stoppage and that reprimand
related to Fouts' participation as a principal in that effort . Shortly prior to Fouts'
discharge when the Respondent again conducted time-studies and contemplated
changes, Bundy, who had not forgiven Fouts for his participation in the prior shut-
down, learned that although Fouts had stated that his participation in the prior
shutdown had been a mistake , planned to shut down machines again , and had him
discharged . It is found that Fouts was discharged because he was again causing
trouble to the Respondent in that he planned to be a participant in another work
stoppage in the Respondent 's effort to prevent the work stoppage from occurring.
Prior to Holland 's discharge Stewart declared that Holland was definitely in on
the Union and about a week after Holland's discharge that they had gotten rid of
the ringleaders . The trouble Holland caused as shown by the McFadden incident
was giving expression among the employees to the Union 's cause-a cause to which,
as shown by the findings concerning interference , restraint , and coercion , the Re-
spondent was opposed.
It is accordingly found that Dolpha Fouts was discharged on January 30 and Boyd
Holland was discharged on February 11, 1959, in violation of Section 8(a)(3) and
(1) of the Act.
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with operations of the Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and ( 3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Thus, having found that the Respondent interfered with, restrained , and coerced its
employees by the conduct enumerated in section C, 1, the Trial Examiner will
recommend that the Respondent cease and desist from this conduct.
Having also found that the Respondent discriminated with regard to the hire and
tenure of employment of Dolpha Fouts on January 30 and Boyd Holland on
February 11, 1959 , the Trial Examiner will recommend that the Respondent offer
each of them immediate and full reinstatement to his former or substantially equiv-
alent position without prejudice to his seniority or other rights and privileges and
make each of them whole for any loss of pay suffered as a result of the discrimina-
tion against him , by payment to each of them of a sum of money equal to the
amount he would have earned from the date of the discrimination to the date of the
offer of reinstatement less net earnings to be computed on a quarterly basis in the
manner established by the Board in F. W . Woolworth Company, 90 NLRB 289,
291-294 . Earnings in any one particular quarter shall have no effect upon the
backpay liability for any other such period . It will also be recommended that the
554461-60--vol. 12 6-7 5
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent preserve and make available to the Board , upon request , payroll and
other records to facilitate the computation of the backpay due.
The Respondent raised an issue as to Fouts' reinstatement. On Saturday, February
7, following Fouts' discharge on January 30, Fouts went out to the plant to ask Poole
to reemploy him. When Poole saw Fouts he asked Fouts to leave the plant. Fouts
stated that he thought it was the usual procedure for people to come in and go out
the plant so long as the door was open. Poole stated that that was so. Fouts then
asked if it was against regulations for someone who had been discharged to come in,
and Poole replied that that was also so . Thereafter, contrary to Fouts' testimony and
assuming the correctness of employees McFadden's and -Dewey Elliott's testimony,
while Fouts hit one hand into his other hand, Fouts stated to Poole, "Damn you,"
and that he would get Poole over in town that night. Nothing ever happened be-
tween Fouts and Poole. It was not until Monday that Poole swore out a warrant
against Fouts. Fouts posted bond sometime after this incident to assure his ap-
pearance in the event an action was brought against him. It does not appear that
Fouts' conduct was more than an expression of anger by one who had been illegally
discharged and who was asked to leave the plant by his foreman when he returned
seeking work. The Trial Examiner is of the view that there is insufficient basis for
denying Fouts the usual reinstatement remedy.
As the unfair labor practices committed by the Respondent were of a character
striking at the root of employee rights safeguarded by the Act, it will be recom-
mended that the Respondent cease and desist from infringing in any manner upon
the employee rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1 American Federation of Hosiery Workers, AFL-CIO, is a labor organization
within the meaning of the Act
2. By discriminating in regard to the hire and tenure of employment of the em
ployees named above in the section entitled "The Remedy," thereby discouraging
membership in the Union, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
3. By engaging in the conduct set forth in section C, 1, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the Labor-Management Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in American Federation of Hosiery
Workers, AFL-CIO, or any other labor organization, by discriminating in re-
gard to the hire or tenure of employment or any term or condition of employ-
ment of any of our employees.
WE WILL NOT (1) threaten to discharge our employees for engaging in con-
certed activities, (2) threaten to close our plant rather than work with a labor
organization, (3) seek to have employees inform us as to the activities of union
employees, (4) inquire of our employees as to their views regarding member-
ship in or as to their activities in a labor organization, (5) inquire of our em-
ployees as to the concerted activities or union interest of other employees, or
(6) foster the impression among employees that their union activities are under
surveillance.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form a labor
organization, to join the aforesaid labor organization, or any other labor or-
ganization, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all such activities,
BUCKLEY DEVELOPMENT COMPANY 1171
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment , as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer Dolpha Fouts and Boyd Holland immediate and full reinstate-
ment to their former or substantially similar positions without prejudice to their
seniority and other rights and privileges and make them whole for any loss of
pay suffered as a result of the discrimination against them.
All our employees are free to become, remain, or refrain from becoming or re-
maining members of any labor organization, except to the extent that such right may
be affected by an agreement requiring membershi in a labor organization as a con-
dition of employment as authorized in Section 8( )(3) of the Act.
FRertxtnv HOSIERY MILLS,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted or 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Jerry J. Buckley, d/b/a Buckley Development Company and
West Side Lumber and Coal Company and Carpenters Dis-
trict Council of Saginaw Valley
Jerry J. Buckley, d/b/a Buckley Development Company and
West Side Lumber and Coal Company and Thurlow Kelly,
John Curreli, Richard Montgomery . Cases Nos. 7-CA-2232,
7-CA-P367, 7-CA-9374, and 7-CA-2368. March $$, 1960
DECISION AND ORDER
On September 29, 1959, Trial Examiner James T. Rasbury issued
his Intermediate Report in the above-entitled proceedings, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that he cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in other unfair labor
practices alleged in the complaint and recommended that such allega-
tions be dismissed. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby 'affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications :
1. We agree with the Trial Examiner that the Respondent vio-
lated Section 8 (a) (1) of the Act by interrogating employees on or
about December 3, 1958, concerning their union activities and sym-
126 NLRB No. 147.