Hanes Corp.

National Labor Relations Board - Board Decisions

Apr 18, 1967

164 N.L.R.B. 40 (N.L.R.B. 1967)

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hanes Hosiery Division , Hanes Corporation Service Act and the Universal Military Training and
and Textile Workers Union of America , Service Act, as amended, after discharge from the
AFL-CIO. Case 11-CA-2913. Armed Forces.
April 18, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 21, 1966, Trial Examiner Thomas S.
Wilson issued his Decision 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 attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order bf the Trial Examiner and
hereby orders that the Respondent, Hanes Hosiery
Division, Hanes Corporation, Winston-Salem, North
Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1. Add the following as paragraph 2(b) and
r_eletter those subsequent thereto consecutively:
"(b) Notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces."
2. Add the following immediately below the signa-
ture line at the bottom of the Appendix attached
to the Trial Examiner's Decision:
Note: We will notify the above-named employees,
if presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
164 NLRB No. 9
Respondent 's exceptions to the Tnal Examiner 's Decision are
in large part directed to the credibility resolutions of the Trial
Examiner. We will not overrule the Trial Examiner' s resolutions
as to credibility unless a clear preponderance of all the relevant
evidence convinces us that they are incorrect. Such a finding is
not warranted here Standard Dry Wall Products, Inc , 91 NLRB
544, enfd 188 F 2d 362 (C.A 3) In fn 9 of his Decision, the Trial
Examiner erroneously stated that Foreman Livengood did not
testify However, we have fully considered Livengood's testimony
and find it insufficient to disturb the Trial Examiner's
conclusions
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Trial Examiner : Upon a charge
duly filed on November 24, 1965, by Textile Workers
Union of America, AFL-CIO,' hereinafter referred to as
the Union or Charging Party, the General Counsel of the
National Labor Relations Board , hereinafter called the
General Counsel2 and the Board , respectively, by the
Regional Director for Region 11, Winston -Salem, North
Carolina, issued its complaint dated January 28, 1966,
against Hanes Hosiery Division , Hanes Corporation,
hereinafter called the Respondent.
The complaint alleged that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the Labor-Management
Relations Act , 1947, as amended , herein called the Act.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice , a hearing thereon was held in
Winston-Salem , North Carolina, on May 17, 18, 19, and 20
and on July 25, 26 , 27, 28 , 29, and 30, 1966 , before me. All
parties appeared at the hearing, were represented by
counsel , and were afforded full opportunity to be heard, to
produce, examine , and cross-examine witnesses, and to
introduce evidence material and pertinent to the issues. At
the conclusion of the hearing, oral argument was wavied.
Briefs were due on August 30, 1966 , but none were
received.
Upon the entire record in the case and from his
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I find
that Hanes Hosiery Division, Hanes Corporation, is a
North Carolina corporation engaged in the manufacture of
hosiery products at its plant on Hanes Mill Road, Winston-
Salem, North Carolina, which plant is the only one
involved in these proceedings.
During the past 12 months, which period is
representative of all times material herein, Respondent
I Without objection the name of the Charging Union was so
amended at the hearing
2 This term specifically includes the attorney appearing for the
General Counsel at the hearing
HANES HOSIERY DIV. 41
produced, sold, and caused to be transported outside the
State of North Carolina from its Hanes Mill Road plant,
Winston-Salem, North Carolina, goods valued in excess of
$50,000. During the same period of time, Respondent
caused goods and raw materials valued in excess of
$50,000 to be purchased and shipped directly to its Hanes
Mill Road plant, Winston-Salem, North Carolina, from
points and places outside the State of North Carolina.
Accordingly, I find that Respondent at all times material
herein was engaged in commerce within the meaning of
the Act.
II. THE UNION INVOLVED
Textile Workers Union of America, AFL-CIO, is a labor
organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Discharges
1. Nora Infinger, Betty Logan, and Jean Settle
a. The facts
Nora (Sue) Infinger began her employment with
Respondent in November 1959; Betty Logan in May 1959;
and Jean Settle in September 1956. Their employment
continued until August 13, 1965, when Respondent
discharged each of them under circumstances to be
described hereafter.
Infinger and Settle always made the production "honor
roll"; i.e., their weekly earnings always far exceeded the
Federal minimum wage requirement. Logan was not quite
so proficient but at least always made "production"; i.e.,
always produced enough to earn the minimum wage
without the necessity of any so-called "makeup pay" from
Respondent.
Infinger and Logan, inseparable friends, signed union
authorization cards in April 1964, but did not become
active on behalf of the Union until each became a member
of the employee' s organizing committee for the looping
department at a union meeting held on August 4, 1965.
Respondent was so notified by letter from the Union.
Thereafter Infinger and Logan actively talked on behalf of
the Union and solicited other employees to execute union
authorization cards on the Union's behalf.
Settle, a good friend of Infinger and Logan, apparently
engaged in little or no union activity until August 13, 1965.
On the evening of August 12 Infinger and Logan
distributed union leaflets at the plant gates in company
with Roxie Tesh, Hazel Boles, Maxine Holcomb, Lewell
Gentry, and others. This distribution was made openly and
notoriously and was thus known to the Respondent,
including Looping Forelady Macy Campbell which,
according to her, caused Campbell to "suspect" that
Infinger and Logan were prounion.
Early on the morning of August 13 Gentry, one of the
leaflet distributors, was warned by Foreman Leonard
Howard that, "You had better stay off the gate with those
leaflets, they are going to have a firing spree around here
one of these days and I would hate to see you get mixed up
in it."3
Also early on the morning of August 13, acting upon the
orders of her superiors, Foremen Livengood and Ivestor,
Forelady Campbell began to watch Infinger and Logan
"closely" and to count and time each break they took that
day.
About 8:30 a.m. that morning Jean Settle, whose
worktable was several rows behind those of Infinger and
Logan, sent word to her friends that she wanted four union
application cards for possible signature. An hour or two
later Infinger and Logan took a break stopping as usual at
Settle's table for a word and delivered to Settle the
requested authorization cards in a small brown paper bag
before continuing on their way to the restroom.4
After the delivery of the authorization cards to her,
Settle turned to two employees working at tables in the
row directly behind her, Kaiser 5 and Jacqueline (Jackie)
Henderson who had been honored that morning with a
shower and a "cake cutting" on her last day of work before
leaving on maternity leave, and asked them to sign union
authorization cards.
Kaiser accepted the card and subsequently executed it.
Henderson refused to sign on the ground that "when she
came back from maternity leave, that she wanted a job
when she came back."
Promptly after this refusal Henderson left her table and
went to the table of Forelady Campbell where she
complained that "Jean was upsetting her and was
continually worrying her to sign union cards."'
Following the return to work after lunch Henderson
again went to Campbell informing her on this occasion,
at least, that Infinger and Logan had brought the union
authorization cards to Settle in a brown paper bag7 and
that "Jean was just worrying her to death to sign one of
those cards, and she had been doing it for some time."
Promptly after Henderson's return to work Campbell
relayed this report to Foreman Ivestor, her superior, who
instructed Campbell to observe closely and to ask Jackie
"if she wanted to talk to anyone." Having thus instructed
Campbell, Ivestor in turn carried the news to his superior,
Looping Superintendent Paul Hemrick.
Thereafter Campbell came to Henderson's work station
and informed Henderson that she was wanted in the office.
Henderson then reported the incident to Foreman
3 This incident will be more fully considered infra
4 It is admitted that Respondent's employees are permitted to
take their breaks at will The only time Respondent's supervisors
objected to an employee's breaks was when, in the opinion of the
supervisor, the employee is taking an excessive number of breaks
or spending an excessive amount of time so as to interfere with
her own work
Also Respondent has no rule prohibiting the employees from
talking
5 Also "Kiser "
6 Henderson testified that the first time Settle had ever asked
her to sign the union card was on August 13 and that on that day
Settle made the request twice
Henderson also testified that she made this report to Campbell
because she, Henderson, "wanted to protect her own job" and
because she believed due to a letter which Hanes had sent to each
of the employees that the girls were "doing something wrong "
T The testimony of Henderson and Campbell is hazy as to
whether Henderson mentioned the names of Infinger and Logan
in connection with the delivery of the union authorization cards in
her first report to Campbell or only in the second report
Henderson admitted that she had seen Infinger and Logan bring
the union authorization cards in the brown bag before her first
report to Campbell However Henderson claimed that in the first
report she had only complained about "the commotion "
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Livengood who promptly took her to Personnel Manager
Frederick.8
At 3:29 p.m. (1 minute before the end of the shift),
Campbell informed Settle that Livengood wanted to see
her in the office and then called Infinger and Logan out of
the line of employees punching out for the day and took
them to Livengood's office along with Settle.
In individual interviews Livengood informed each of the
three that "after today we won't need you" or "as of now
your services are terminated." Each of the three protested
that the reason they were being fired was due to their
union activities. Livengood's only answer was that he "did
not want to be involved."9
Livengood then took the three to Personnel Manager
Frederick who asked each individually to sign a
termination slip which stated the cause of her discharge to
be, "Discharged-neglecting work and interfering with
work of others." Each refused to sign on the ground that
the statement was untrue . Logan offered to sign the
termination slip if Frederick could or would produce
anyone she had interfred with. The offer was ignored. All
three continued to protest that they were being unjustly
discharged but without further investigation all three
dismissals stood.
b. Conclusions
Disregarding the telltale timing between the leaflet
distribution on the evening of August 12, the solicitation,
and the discharges of the afternoon of August 13,
Respondent strenuously maintained at the hearing
through the testimony of Forelady Macy Campbell and two
employees that Respondent had in fact discharged
Infinger and Logan for "cause" because those employees
for weeks had been taking "breaks," excessive both in
number and in duration.
To prove this contention Respondent called Campbell
who testified with righteous indignation that for the last 4
to 6 weeks of their almost 10 years of employment with
Respondent, Infinger and Logan took too many and too
lengthy breaks during the workday. According to
Campbell's account, this became so bad that on August 13
all 100 girls under her supervision had eyes and ears for
nothing except Infinger and Logan; i.e., all eyes and ears
were on them when they took a break.10
In fact Respondent produced an employee witness who
testified with a straight face that every time Infinger and
Logan took a break it disturbed her in her work because
Infinger had a peculiar "shuffle" on her feet as she
walked." As all 100 girls did their work on machines in
this same room, this witness had to be endowed with
rather remarkable hearing.
Paul Hemrick, the looping superintendent, sought to
corroborate Campbell, et al., by testifying that Campbell
had reported these allegedly excessive breaks to him two
or three times in the month before the discharges. Until
August 13, however, Henrick's contribution to the solution
9 Henderson testified that she had "voluntarily" requested the
right to protest to the above supervisors because she wanted "to
protect her job" and to "protect the Company against the Union."
In view of Ivestor's earlier order to Campbell to see if Henderson
"wanted to talk to anyone," it is difficult to believe that
Henderson was a "volunteer "
9 Neither Livengood nor Ivestor testified at the hearing
10 Campbell had a little trouble explaining how she knew that
all 100 pairs of eyes and ears were on Infinger and Logan.
11 A trait this Trial Examiner failed to note during Infinger's
short walk to the witness chair
of this alleged problem had been restricted to informing
Campbell that it was Campbell's duty to "control"
the employees under her.
If is admitted that Respondent had no rule regarding
breaks by employees-at least until they became
"excessive" in the opinion of the supervisor. Campbell
admitted that she had never before warned an employee
for taking excessive breaks-until August 13. The most
Campbell even claimed was having said amiably to
Infinger and Logan, "You here again!" and "I'm going to
have to tie you to your chair." Beyond these comments
Campbell acknowledged that she never gave Infinger or
Logan a warning, written or oral, until August 13.
But on August 13, the day after both Infinger and
Logan had been distributing union leaflets at the plant
gate to Respondent's knowledge, Campbell, acting upon
orders from her superiors, for the first time in her 12 years
as a supervisor began counting the number of breaks
Infinger and Logan took and timing them. In fact,
Campbell enlisted the services of Mary Reynolds, the
forelady of the section next to Campbell's, to count and
time those breaks while Campbell was on her own breaks.
According to Campbell's testimony, she herself counted
six breaks that day for a total time of 1 hour and 16
minutes and that adding the time Reynolds reported to
Campbell that the employees were on breaks, the
accumulated break time for that day amounted to 2 hours
and 20 minutes.12
If this Campbell testimony can be accepted at face
value, then one-quarter of the working day of Infinger and
Logan on August 13 was spent on breaks and away from
their work. It seems axiomatic that, if Infinger and Logan
were absent from work for one-quarter of the working day,
they could not have maintained their regular production for
that day. As both employees were paid on the basis of their
production, the payroll records would have reflected their
absences from work that day in lowered production and
pay and would have corroborated Campbell. Respondent
failed, in fact refused, to produce such payroll records.13
The inference from this failure is clear and I draw the
same.
In the light of all the facts I am unable to credit the
testimony in regard to the alleged "excessive breaks."
However even if this evidence of Campbell were to be
accepted, which under the circumstances of this case I
cannot do, still other testimony proves that Respondent
discharged Infinger and Logan for reasons other than
these alleged excessive breaks.
The facts here prove that Respondent discharged Jean
Settle simultaneously with and as an integral part of this
same incident which resulted in the discharges of Infinger
and Logan. In all three cases Respondent made out
identical termination slips reading "neglecting work and
interfering with the work of others."
But Settle, according to Campbell's own testimony, was
a "very good" employee. Settle was always on the "honor
roll" for production. She did not take excessive breaks.
12 Reynolds was not called to verify the truth of the facts she
reported in this alleged report to Campbell nor was her absence
accounted for Consequently 1 hour and 4 minutes of this
accumulated time remained pure hearsay
13 General Counsel and the Charging Party had subpenaed
these records Respondent refused to produce said records, one
ground of such refusal being that said records were "immaterial"
because Respondent was not claiming "poor production" as the
cause of any of the discharges here However, in the instant cases,
the termination slip showed " neglecting work" as one "cause" of
discharge which seems to equate with "poor production "
HANES HOSIERY DIV. 43
She did not bother other employees. In fact she appears to
have been throughout her whole 10 years of employment
an exemplary employee-except that on August 13,
she asked employee Jackie Henderson in the plant
during working hours to sign a union authorization card
which to Henderson's and Respondent's knowledge had
been brought to Settle that morning in a brown paper bag
by her friends Infinger and Logan. As quickly as this was
reported to Campbell, action began among Respondent's
supervisory staff which resulted in the precipitous
discharge not only of Settle but also of Infinger and Logan.
Respondent had no reason to discharge Settle other
than the incident of August 13. In fact Respondent did not
even attempt to introduce any other "cause" for this
discharge. So the legalistic verbiage on termination slip
can mean only that Respondent discharged Settle for
having solicited Henderson to sign a union card on
company time and property. Respondent had no rule
prohibiting talking among employees. It had no "no-
solicitation" rule-nor, in fact, could there have been a
legal no-solicitation rule in effect in the plant due to the
numerous businesses, chances, and solicitations carried
on daily in the plant by employees with Respondent's
knowledge and consent, to wit, Avon Products and Stanley
products were sold, candy sold by Macy Campbell herself,
chances taken on raffles, and even flowers for sale were on
display.
But for spending 5 or perhaps 10 minutes talking to
Henderson about signing a union authorization card,
Respondent discharged Settle. To maintain that Settle, an
honor role employee, was neglecting her work thereby is
too asinine to require comment. To argue that by such
solicitation Settle "interfered with the work" of
Henderson is equally as absurd and, in this instance,
slightly ironic because it was only that very same morning
that Henderson had been honored with a shower which
was supposed to have taken place before work and a "cake
cutting" with other employees which occurred during
working hours. Such affairs had to "interfere with the
work" of the many employees who participated-including
Macy Campbell-but Respondent considered such
interferences to be for a worthy cause. Obviously union
solicitations were not so considered. Settle was fired for it
despite the fact that there was no rule prohibiting it.
And so were Infinger and Logan. Although their
allegedly "excessive" breaks had been going on for a
month or more, neither Campbell, Livengood, Ivestor,
Hemrick, nor Frederick considered the alleged offense
serious enough, until August 13, to even talk to the
employees about the matter other than the two innocuous
remarks made by Campbell which could hardly be classed
as "warnings." On the other hand, when it was reported to
Respondent that the union authorization cards had been
handed to Settle in a brown paper bag by Infinger and
Logan, Respondent's whole supervisory staff went into
immediate action culminating in the sudden discharges of
that afternoon. It is further noteworthy that Campbell
began her activity of checking and timing of the
employees' break for the first time on the morning after
Infinger and Logan had been seen distributing union
leaflets at the plant gates. The speed displayed after the
solicitation contrasts strikingly with the month's long
lassitude displayed over the alleged excessive breaks.
Accordingly, I am convinced, and hereby find, that
Respondent discriminatorily discharged Nora Infinger,
Betty Logan, and Jean Settle on August 13, 1965, because
their union activities had become known to the
Respondent and in order to discourage union membership
and activities among its employees in violation of Section
8(a)(3) and (1) of the Act.
2. Lewell Gentry
a. The facts
When Respondent discharged Lewell Gentry on
August 18, 1965, Gentry had been continuously employed
by Respondent for a period of 12 years, the first 2 of which
he worked as a knitter and the last 10 as a fixer.
Respondent's evidence indicates that until his transfer to
the first shift in November-December 1964, Gentry's work
as a fixer had been satisfactory to Respondent.
Gentry joined the Union in March 1964, and thereafter
was busily engaged in union activities; soliciting union
memberships in and outside the plant, attending union
meetings, and distributing union leaflets. The Union's
letter to Respondent dated July 8, 1964, listed Gentry's
name as one of its active members. Gentry received a copy
of Respondent's acknowledgment of the receipt of that
union letter. Thus Respondent admittedly was well aware
of Gentry's prounion activities.
In November-December 1964, as noted above, Gentry
was transferred from the third shift to the first, or daylight,
shift as a fixer on line 76.
According to Respondent, fixers are promoted to the
first shift strictly on the basis of seniority despite the fact
that, according to Respondent again, the fixer on the first
shift is supposed to be "responsible" for the work of the
second and third shift fixers on the line, a duty about
which Respondent never informed Gentry. Admittedly
fixers are not supervisory employees.
Just prior to Gentry's transfer to the first shift Glenn
Smith, foreman of the third shift, showed Gentry a unique
document, never before seen by Gentry in his 10 years as a
fixer, in which Smith had "rated" Gentry below average in
every qualification of a fixer except attendance.
According to the testimony of David Kallam,14 knitting
foreman on the first shift, Smith reported to him that
Gentry was not a very good fixer. However, Gentry was
promoted to the first shift and thus, according to
Respondent, became "responsible" for the fixers on the
other two shifts.
Foreman Kallam welcomed Gentry to the first shift upon
his transfer saying that he, Kalram, was glad to have
Gentry and that he had been saving a line just for Gentry.
He then assigned Gentry to line 76.
In January 1965 Kallam brought a production report on
line 76 for Gentry's inspection. At this time Kallam told
Gentry that he knew that the bad production report was
not Gentry's fault, that the line had been "running in the
red" for years, that he just wanted to show Gentry what
Gentry was up against on the line, and that "I want to see if
you can't bring that line up and get it running like one
should.... I know you can do it." 15
On May 20 and again on August 12, 1965, Gentry
distributed union leaflets at the plant gates after work
along with most of the other employees involved here.
14 Also spelled "Kellum " in the transcript
15 Kallam denied that he told Gentry that he had been saving
line 76 for Gentry or that the line had a problem Kallam
acknowledged that later he did show Gentry a production report
on line 76 and did not dispute the rest of Gentry's testimony about
that occasion
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the morning of August 13 Leonard Howard, foreman
of the changing crew which had been making numerous
changes in line 76 while Gentry was the fixer on the first
shift, saw Gentry about 8:30 a.m. and said, "A little word
of advice. You had better stay off the gate with those
leaflets, they are going to have a firing spree around here
one of these days and I would hate to see you get mixed up
in it."i6
On August 18 at 3:15 p.m. Knitting Superintendent
Hedgecock and Kallam discharged Gentry telling him at
that time that "we've followed your work all the way
through the mill and we have come to a conclusion that
everything that is wrong with the line is your fault." For
the first time they informed Gentry that it was his
"responsibility to see that all three shifts did their work
right." Gentry answered that all he could do was to tell the
other fixers how and hope that they did what he suggested.
He then asked if his discharge "would not have something
to do with union activities." To this Hedgecock answered,
"We were not going to bring this up but, since you have,
we think you have a very bad attitude towards the
Company." After Gentry denied having any such bad
attitude, Hedgecock continued, "Don't you think anybody
that wanted the Union in there has a bad attitude ?"17
The following day Gentry saw Personnel Director
Frederick who said that he knew nothing of Gentry's
discharge before Gentry told him. Frederick then got the
discharge report and stated that, "This says your work was
not up to par." Gentry denied that his work was poor and
stated that he thought he was fired for his union activity.
Frederick answered this by asking, "Don't you think
anyone that wanted the Union had a bad attitude?"
Frederick then requested Gentry to sign his discharge slip
which gave the cause of discharge as "discharged-work
not satisfactory as a fixer." Gentry refused to sign. He then
requested the right to see Plant Superintendent Waggoner
and President Hanes in accordance with the new August 8
grievance procedure. Frederick said that he would get
Gentry an appointment with them. That was the last
Gentry ever heard of that. He remained discharged."
b. Conclusions
In order to prove its defense that "things grew steadily
worse" in line 76 while Gentry was the fixer on the first
shift for which Gentry was solely responsible, Respondent
called David Spencer Kallam, knitting foreman on the first
shift, Albert A. Loggins, knitting foreman on the second
shift, Harvey A. Isom, fixer on the second shift,
Royce E. Sisk, knitter on the second shift,
Robert L. Evans, floating fixer on the first shift,
J. H. Cecil, volumet operator on the second shift,
Don Boyles, floating fixer on the second shift,
James H. Rutledge, head fixer on the third shift, and
R. Glenn Smith, knitting foreman on the third shift.
Without going into the details of their testimony the gist of
the testimony of each of the above was that there had been
no troubles on line 76 before Gentry became the fixer on
the first shift, that thereafter "things grew steadily worse"
on line 76 so that everybody working on it was losing
money but that, as soon as Gentry was discharged on
August 18, line 76 once again became a fine line without
troubles. In short the troubles on line 76 began when
Gentry became the first shift fixer on the line and ended
promptly upon his discharge. This whole testimony was
characterized by its vague generalizations, its absolute
indefiniteness, and its liberal use of hearsay "reports," the
facts contained therein never being proved. On one thing
all these witnesses agreed: No matter how low line 76 fell
in production, Respondent never held a line conference of
the workers on line 76 nor made any investigation seeking
the "cause" of the alleged "trouble." However, based
upon the above testimony, Respondent maintained that
Gentry was discharged for "cause," poor workmanship.
It is a beautiful theory, if one can accept it.
There are, however, a few flaws in the theory. Despite
the numerous witnesses Respondent called to testify about
the Gentry matter, Respondent followed the usual pattern
in this case by omitting to call as witnesses three persons:
Subforeman Shore, on the first shift, Speas, the head fixer
on the first shift, and Bill Steelman, the volument operator
on the first shift who regularly checked the sizes on
Gentry's work. These three men working right alongside of
Gentry throughout his 8 months on line 76 would have
known Gentry's work better than anyone else. Even
Kallam testified that Speas and Steelman were probably
the best qualified men to express opinions of Gentry's
work. Speas was not called to testify nor was his absence
accounted for. The inference is obvious. Bill Steelman, the
volument man, who regularly checked the sizes on
Gentry's line was the best qualified individual to testify
whether Gentry was sizing correctly or incorrectly.
Steelman was not called as a witness nor was his absence
explained. The inference is again obvious. According to
the testimony of Kallam, Subforeman Shore had on almost
innumerable occasions, always in Kallam 's absence,
criticized Gentry's workmanship to Gentry. Shore did not
testify, so that Kallam's testimony was nothing more than
hearsay. Again the inference is plain. Nor did Respondent
produce any production or other records on line 76. Thus
the "proof" of Gentry's alleged poor workmanship
amounts to nothing more than hearsay, unproved
"reports," and personal opinions without factual basis.
As a matter of fact Kallam himself gave the game away
on cross-examination when he admitted, from knowledge
gained from seeing the unproduced production records,
that before Gentry became the fixer on the first shift, line
76 was operating at 96 percent production and at the time
Gentry was discharged, line 76 was operating at 98 percent
production. Hence, contrary to the testimony given by all
the other witnesses called by Respondent, line 76 in fact
improved while Gentry was the first shift fixer and did not
get "steadily worse" as those witnesses would have us
believe. In fact Kallam was the first to admit, contrary to
16 Howard specifically denied making the above statement
Howard was not a convincing witness He originally testified that
he first learned that Gentry was prounion in the year 1966 He
then changed that date to the "latte' part of 1965" as the date that
lie• "could have known about it," Subsequently on cross-
examination he acknowledged that he had "heard" that Gentry
was prounion in the year 1964-but that that was just " hearsay." I
cannot credit Howard's denial, particularly as the record proves
that the prophesied "firing spree " began that very same day as
found heretofore.
11 This conversation as related by Gentry remained undemed
and uncontradicted as neither Hedgecock nor Kallam testified in
regard thereto
18 Although present at the hearing, Frederick was not called as
a witness so that the above testimony of Gentry remained
uncontradicted
HANES HOSIERY DIV.
the testimony of the other witnesses , that for years line 76
had been "operating in the red" and that during the period
Gentry was the fixer, line 76 improved until its production
was 98 percent, only .3 percent less than the average of all
machines under Kallam's supervision. This Kallam knew
from the records which Respondent did not see fit to
produce at the hearing.
Kallam also admitted that throughout his employment
on line 76, Gentry "always" received a bonus for making at
least 96 percent production while Isom, fixer on the
second shift, "generally" received such a bonus although
the three different, new and green fixers on the third shift
"seldom" managed to earn the bonus.
But Respondent had a theory for this also: that Gentry
spent his time helping his knitter make more production
while neglecting the fixing of the machines. This theory
also has too many holes in it to be acceptable: (1) Gentry
had to have the machines on line 76 working correctly
during his shift in order to run the required percentage of
production to get the bonus; (2) the machines run at a
regular speed which a knitter can handle alone without the
assistance of his fixer so that the assistance of the fixer in
the knitting operation would not increase production;
(3) this theory presupposes that Gentry not only knew how
to keep the machines running correctly on his own shift
but, more importantly, he knew how to have them break
down on the shifts after his own. I cannot believe that
Gentry was that much of a mechanical genius.
Consequently I must find that bonus fixer Gentry was
not discharged by Respondent for poor workmanship as
contended.
On the other hand the uncontradicted evidence proves
that the statements of both Hedgecock and Frederick,
neither of whom testified to the contrary, show that they
were discharging Gentry because he had a "bad attitude"
towards the Company in wanting the Union to represent
Respondent's employees and because he continued to
engage in union activities. Even as Howard indicated,
Respondent did in fact engage in a "firing spree" against
those who joined the Union and engaged in union
activities. This is a 8(a)(3) and (1) violation. Accordingly, I
must find that Lewell Gentry was discharged on
August 18, 1965, by Respondent because of his known
union membership, his known union activities, and
because the Respondent believed he had a "bad attitude"
because of these facts in violation of Section 8(a)(3) and (1).
3. Hazel Boles
a. The facts
Hazel Boles was employed by Respondent in November
1961, and worked steadily thereafter until discharged on
August 20, 1965. Her foreman for her last 2 years of
employment as a folder and stamper was Wrenn Vannoy
and her immediate supervisor was Nanny Brewer.
Admittedly Boles was a "very good" employee, being very
-fast and very productive and thereby, as a pieceworker,
one of the higher paid employees in the unit averaging over
$2 per hour.
Boles joined the Union on February 28, 1964, and
promptly became active on behalf of the Union passing out
19 This testimony is undenied as Brewer was not called as a
witness
20 One of the two unequivocal statements Vannoy made during
his indefinite testimony was to deny having made these last two
statements as testified to by Boles
21 Inspectors are not supervisors
45
leaflets as early as the spring of 1964, becoming the
chairman of the employees organizing committee in her
department and actively soliciting union memberships
among her fellow employees.
The name of Hazel Boles was included on the Union's
letter to Respondent dated June 8, 1964, as one of its
active union members. She received a copy of the letter
from Respondent acknowledging receipt of the June 8
letter. Respondent early recognized Boles as one of the
active union adherents.
As early as September 1964, Nanny Brewer spoke to
Boles telling her how thankful Boles should be that Hanes
"would permit" her to work. When Boles inquired if
Brewer was speaking of the Union, Brewer answered in
the affirmative and inquired if Foreman Vannoy could talk
to her about the Union."'
Vannoy did come to Boles shortly thereafter and told
her all about the "troubles" his brother had endured in the
North under a closed-shop union contract. He inquired as
to what Boles' husband, a known union member, thought
of "Jimmy" Hoffa. Boles then stated that she thought
Respondent was trying to discharge her because of her
activities on behalf of the Union. Vannoy answered this by
admitting that her work was being closely checked but
that they could not find anything against her work but that
they would find something. But he added that it then
looked as though Respondent would have to fire Vannoy
before they discharged Boles.20
Beginning about June or July 1965, Boles became even
more active in soliciting union memberships and signed
authorization cards.
About this time Boles made several efforts to interest
employee Janet Lawson in signing a union authorization
card and attending weekly union meetings . A number of
such conversations took place at Lawson's worktable. On
one occasion Boles handed Lawson an authorization card
while both were in the restroom. Lawson was polite but
uninterested because she was fearful that there might be
others present at the time. She did not sign an
authorization card nor attend union meetings.
Soon after July 27 Lawson reported these attempts by
Boles to Foreman Vannoy. Vannoy expressed his
"appreciation" for her report which he promptly carried to
his superintendent, Loftis, whose reaction, according to
Vannoy's testimony, was that this was a "serious matter"
and that they "would have to discuss it." After learing of
Lawson's report to Vannoy, Boles ceased her solicitation
of Lawson.
Either in June as Boles testified, or on or about
August 1, as Hall testified, Boles approached her
inspector,'' Jean Hall, and asked Hall to give her, Boles, a
list of all the employees in the department with their
addresses to which Hall had access. Hall told Boles that
she, Hall, would do so "later" and "when she had time."
Subsequently Boles inquired about the list several times
but was put off each time with a statement that Hall did
not have the " time."--
On August 9, according to Hall, Boles inquired about
the list again offering this time to do some housework for
Hall while Hall copied the list at home for her.
Hall then reported to Vannoy that Boles had requested
that she give Boles the list of the department employees
22 Originally Hall testified that during August Boles inquired
about this list "a dozen times," an estimate which she
subsequently revised to "three or four " In view of the time
element as testfied to by Hall, Hall's original estimate seems
exaggerated.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with addresses and had offered "to pay" Hall for it.23
Vannoy then instructed Hall that, if Boles repeated her
request, Hall should tell Boles that Boles would have to
request the list from "supervision."
On or about August 11 Boles reminded Hall of the
promised list. At this time Hall said that the list was on her
table and that Boles could take it off the table. This Boles
refused to do with a comment, "Are you crazy? Vannoy
would fire me if he caught me in those papers."24 Hall then
stated that Boles would have to get the list then from her
foreman, Vannoy. Boles told Hall "to forget it."22
Later that day Hall again reported to Vannoy that Boles
had again requested the list and had offered to "pay" for
it. But Hall did not mention the alleged "threat" to
Vannoy.26
Vannoy again promptly reported this incident to Loftis
who again remarked that the matter was "serious" and
that they "would have to discuss it."
Both Hall and Boles agree that there was no further
mention of the list thereafter.
On the evening of August 12, as found heretofore, Boles
was one of the union group who distributed leaflets at the
plant gates at the end of the shift. This was known to
Respondent.
According to the testimony of Hall, on August 18 she did
report to Vannoy that Boles had "threatened" her on
August 11 that, if she reported Boles to supervision, she
would "not live to get back here." Hall further reported at
this time that employee Carolyn Nail Walker had
"overheard" Boles tell a third person, unnamed, that, if
Hall reported Boles to supervision, "she [Hall] would not
live to get back here." Hall requested Vannoy to call
Walker in to repeat what she had "overheard. `21
According to Hall and Vannoy, Walker was called in and
did repeat the "overheard" threat.
Significantly, as was frequently the pattern in this case,
Respondent did not choose to call Walker as a witness at
the hearing nor to attempt to account for her absence.
Uncontradicted evidence showed that Walker had been in
attendance in the hearing room. In the light of this, there is
no probative evidence in this record as to what, if
anything, Walker "overheard." Upon receipt of this last
report, Vannoy again carried the report to Loftis who, in
Vannoy's words, "agreed" with Vannoy that the matter
was now "very serious ... after all of this came together,
the reports from Mrs. Hall and Mrs. Lawson." So that on
August 18 the decision was reached that Boles was to be
discharged at the conclusion of work on August 20.
Admittedly Boles during this whole period received no
written or oral warnings despite the fact that Vannoy
testified that both he and Loftis considered the solicitation
of Lawson to be a "very serious matter," considered
Boles' request of Hall for the list of employees to be a
"very serious matter," and considered the threat allegedly
made by Boles to Hall to be a "very serious matter."
In fact, to all outward appearances Boles' employment
continued on as usual until 1 minute before quitting time
on August 20 when Brewer came to Boles and stated that
Vannoy wanted to see her in his office. Boles told Brewer
that she wanted to take a witness with her but Brewer
refused. When Boles and Brewer arrived at Vannoy's
office, Vannoy informed Boles that Boles was terminated
"as of that date." Boles asked, "Why?""" Vannoy
answered that Boles' "quality and quantity was not good;
[Boles] had a bad attitude: [Boles] had interfered with
others: [Boles] had a bad medical record; a bad
attendance record." Vannoy then inquired whether
Boles would see Personnel Director Frederick who
was waiting for her, according to Vannoy. Because
of the lateness of the hour, Boles refused to see Frederick.
The following Tuesday, Boles returned to the plant and
saw Frederick who was "surprised" to learn that she had
been discharged. Frederick left the room to get the
termination notice. He returned with a termination notice
signed by himself, not that signed by Vannoy, which read:
"has proved to be an unsatisfactory employee; has
interfered with work of others and otherwise
misconducted herself." Frederick stated that all he knew
about the discharge was what the foreman told him. Boles
requested the right to see Superintendent Waggoner and
President Hanes in accordance with the Respondent's
new grievance procedure set forth in the letter of
August 8. Frederick told her that both Waggoner and
Hanes were busy but that he would make an appointment
for her to see them.
Although Boles returned to see Frederick the following
week requesting her job back and an appointment with
Hanes, Boles has never been reinstated nor had she been
given an appointment with Hanes.29
b. Conclusions
The testimony makes it clear that, according to
Respondent's theory, three episodes caused Respondent
to discharge Boles who was known by it to be actively
prounion: (1) Boles' attempts to solicit Lawson to sign a
23 Although Hall denied Boles' offer to do housework, Hall
admitted that no specific renumeration was ever mentioned
between the two.
24 Boles became suspicious and figured that "I was being set
up for something" and so was not going to touch the list unless it
was given to her by Hall. In the light of the Vannoy instructions to
Hall, it appears that Boles ' woman 's intuition was at work.
Yz Hall testified that Boles' answer to this was, Are you crazy?
... If you ever tell on me, you will not live to get back in here."
For reasons to be explicated later, I cannot credit this testimony
and hence credit the denial of Boles that she ever made any such
statement or "threat."
26 Hall testified that she did not report the alleged threat
because she did not consider it "serious." In fact Hall also
acknowledged at the hearing that she and Boles continued to
"joke and kid" thereafter just as they had done previously.
Obviously either the threat was not made or, as Hall testified, it
was not serious.
27 According to Hall, the alleged repetition of the "threat"
made it "serious."
28 Up to this point the testimony of Boles and Vannoy had been
identical. According to Vannoy, he answered Boles' inquiry by
telling her that she was discharged "because she was bothering
other people and otherwise misconducting herself." Vannoy
denied having given any other reasons for the discharge, this
being •Vannoy's second unequivocal testimony . However,
admittedly Vannoy cited at least one other reason on the
termination notice which he wrote out, but which was not
produced at the hearing, to the effect that Boles "has proved to be
an unsatisfactory employee." In addition Vannoy proved to be a
very indefinite and forgetful witness. Also admittedly Vannoy
took occasion to check Boles' production record which only
proved that Boles had been earning over 82 per hour. Respondent
did not call Brewer. The inference from this is clear. Accordingly,
I credit the testimony of Boles.
29 This testimony by Boles is uncontradicted because, although
he was present in the hearing room most , if not all , of the hearing,
Frederick did not testify. Neither did Loftis testify.
HANES HOSIERY DIV.
union authorization card which, according to Respondent,
"interfered" with Lawson's work although Lawson
testified to the contrary at the hearing; "' (2) Boles' attempt
to secure a list of departmental employees for union use•;'
from inspector Hall; and (3) Boles' alleged "threat" on
Hall's life if she reported Boles to management.
The first two of these events constituted legitimate
protected union activity on the part of Boles. As found
heretofore, Respondent had no rule against talking nor any
rule against solicitation."' Although Respondent for
reasons of its own may have preferred not to have a list of
its employees placed in the hands of the Union, there was
nothing secret or sacred about such a list.
The third episode, the alleged threat on Hall's life,
although growing out of a protected union activity, would,
if proved, constitute lust cause for dismissal. Such a threat
would be excessive and thus removed from the protection
of the Act.
According to Hall, this threat was made by Boles on
August 11, 1965, when Hall finally, upon instructions from
Vannoy, told Boles that she would have to get the list from
"supervision ," if she, Boles, would not take the proffered
list off of Hall's table."" - But when immediately thereafter
Hall reported this event to Vannoy, significantly she made
no mention to him of any alleged "threat" by Boles It is
further noteworthy that, as Hall admitted, thereafter she
and Boles continued to "kid and joke" as usual just as
though no threat had ever been made. It was not until 1
week after the event, on August 18, that this woman whose
life was supposedly in danger (because she had reported
Boles to supervision ) finally and belatedly reported the
alleged threat. Hall's excuse for this delay was that she did
not consider the threat " serious " until employee
Carolyn Nail Walker suddenly told her that she, Walker,
had "overheard" Boles recounting the identical threat
apparently to some third person. Both Hall and Vannoy
testified that, at Vannoy's request, Walker did repeat this
report to them. The contents of Walker's report, as
counsel had been warned, amounted to hearsay.
Respondent did not call Walker to testify as to what, if
anything , she supposedly had "overheard ," although the
evidence shows that Walker had been in the hearing room
during the hearing.
It is a fair inference from Respondent's failure to call
Walker, which I draw, that, if called, Walker's testimony
would not have assisted Respondent. In addition this
failure also means that Respondent has failed to prove the
contents of the report made by Walker by competent,
probative evidence. Thus there is no proof as to what
Walker supposedly "overheard "
Accordingly, I credit the denial of this testimony and of
3 0 Lawson was followed on the stand by employee Voss who
shared a worktable with Lawson . Voss testified that Boles also
solicited her to join the Union and that these solicitations did
interfere with her work This testimony , if believed , proved to be
immaterial to Respondent 's case because Respondent learned
about Voss and the alleged interference with her work only after
Boles had been discharged and hence it could have played no part
in the discharge
31 Hall and Boles agree that, when Boles laughingly informed
Hall that she wanted this - list for use "at Christmas," both
understood that the list was for the Union
32 Respondent attempts here to create a "no-solicitation" rule
by the legalistic use of the phrase "interfering with the work of
others" by finding that such "solicitation " for the Union did
"interfere with others." However , any talking to employees must
necessarily " interfere" with the listener But Respondent had no
47
the threat by Boles, who appeared to be a straightforward,
forthright witness who was telling the truth.
Under all the circumstances I am convinced, and hereby
find, that, contrary to Hall's testimony, Boles did not make
this or any other threat against Hall.
This finding is buttressed further by the fact that,
although Respondent and Hall purported to believe Hall's
life to be in imminent danger due to this alleged threat,
Respondent permitted Boles to continue working for 2 or 3
days thereafter without a word of warning to Boles or any
precautions taken to preserve Hall's threatened life. This
failure, together with the surreptitious instructions given
Hall by Vannoy create at least a suspicion that
Respondent was attempting to entrap Boles into some
action or statement which would justify her
discharge-even as Boles at the time feared.
It is clear and I find that the Respondent discharged
Hazel Boles on August 20, 1965, because it knew and
disapproved of her union membership and particularly her
continued activities on behalf of the Union in and out of
the plant and for the purpose of discouraging such
membership and activity in violation of Section 8(a)(1) and
(3) of the Act.
4. Roxie Tesh
a. The facts
At the time of her discharge by Foreman
Thurman Binkley on October 28, 1965, Roxie Tesh had
been employed by Respondent as a pairer for 6 years and 4
months.
Early in May 1964, Tesh signed a union authorization
card on behalf of the Union and became active in its
organizing campaign at Respondent' s plant . She became
the co-chairman of the employees' organizing committee
and a member of a team which visited employees at their
homes seeking signatures on union authorization cards. In
addition she wore union buttons in the plant and passed
out leaflets at the gates.
Under date of June 8, Gordon Hanes, Respondent's
president, wrote the Union a letter in pertinent part as
follows:
We have received your letters in which you state
that each of the following employees " is a member" of
your union and is "engaged" in active efforts on
behalf of your union , namely:... Roxie B. Tesh.34
We are taking di.e note of this information.
We want these employees, whom you have named,
to understand, however, that their being members of
rule against talking As applied here by the Respondent, only
solicitation on behalf of the Union " interfered with the work of
others " Under Respondent's interpretation, the solicitation of
employees to buy numerous manufactured products, raffle
tickets, candy, flowers, and other things did not so interfere Such
interpretation is too restricted to be legal In addition this
interpretation might also be unconstitutional as depriving the
employees of their freedom of speech
33 Boles refused Hall's offer that Boles take the list off Hall's
table because Boles feared that she was "being set up for
something "
31 This letter listed 16 names, including Tesh 's Among the
employees so listed were Hazel Boles and Maxine Holcomb, who
are also involved in the instant matter Respondent conceded at
the hearing that it had knowledge of Tesh' s involvement in the
Union
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
your union does not give them any immunity of any
sort nor any preference over other employees.
Although your letters disclaim any idea that these
individuals are seeking different treatment from other
employees, it appears to us that this is exactly the
purpose of your letters. We want to make it entirely
clear that these employees will be expected and
required to perform their jobs as fully as any other
employees-if they wish to remain in this Company's
employment. [Emphasis supplied.]
In addition to sending carbon copies of this letter to the
individuals named therein, Respondent posted copies of
this letter on the plant bulletin boards.
About April 23, 1965, Tesh wore a big 3-inch union
button to work. After lunch that day Binkley came to her
table and ordered her to remove the same on the ground
that its display was causing "confusion" in the plant.35
Tesh protested that Respondent had permitted the
employees to display equally large buttons during the
presidential election without objection. Binkley was
adamant. After Tesh reluctantly removed the button,
Binkley reported the incident to his superior as an
instance of "defiance."
In July 1965, Respondent placed additional duties upon
its pairers. For sometime Respondent had refused the
pairers the right to inspect the quality and production
reports put out by Respondent weekly contrary to pass
practice. The result of both these things was that on
July 27, 1965, the pairing department engaged in a sitdown
strike. Tesh was elected by the employees as 1 of 17
representatives of the department to confer with President
Hanes, Superintendent of the Finishing Department
Young, Plant Manager Waggoner, and Personnel Director
Frederick. During this conference Hanes remarked that,
when the Union heard about the sitdown strike, it would be
waiting for the employees at the gates. After the employee
representatives had aired their complaints, Hanes
promised "to see" what could be done about them.
The following day the same group of representatives
met with Superintendent Young who stated that there had
been complaints that the employees had been
"misrepresented" at the conference. Tesh spoke up and
stated that the employees all knew about her union
activities before they elected her to represent them in the
sitdown matter. Young thereupon asked the group to
indicate by a show of hands who among them was for the
Union.36 A number of the group raised hands.
The sitdown strike "irritated" Foreman Binkley who
admitted that, while he knew Tesh had been active in the
matter, he did not know that she was a leader thereof, even
though the local newspaper and television station had
interviewed Tesh in regard thereto.37
On August 12, 1965, the Union distributed leaflets at the
plant gates. Among the distributors were Roxie Tesh,
Maxine Holcomb, Hazel Boles, Betty Logan, Sue Infinger,
and Lewell Gentry. This distribution was open, notorious,
and known to the Respondent, including Foreman
Binkley.
On October 27, 1965, Tesh was ill. She failed to report in
sick to Respondent on the day of her absence.
On October 28, Tesh returned to work. She went to her
desk as usual and began working. When her superior,
Elva Stonestreet, failed to appear promptly at her desk
that morning to give Tesh a slip to see the plant nurse as
was her custom, Tesh so informed Marie Caudle, an
inspector who shared a table with Stonestreet, and asked
her to call the omission to Stonestreet's attention.
However the slip to see the nurse was not forthcoming.
About 2:30 p.m. Tesh attempted to attract Stonestreet's
attention to her omission. She was unsuccessful.
Early on that morning of October 28 Stonestreet had
reported to Binkley, as was customary, the employees
absent from work that day. Stonestreet also reported at the
same time, the only such report Binkley ever recalled, that
Tesh had returned to work but had not reported to
Stonestreet's table prior to commencing work.
Binkley thereupon reported these facts regarding Tesh
to Superintendent Young with the recommendation that
Tesh be discharged because of her "defiance" in this
matter. According to Binkley, Young then instructed him,
"Bink, if you think you can't control this girl, I don't think
you have any alternative. . . . You are the boss of the
department; you have got to control these people; and if
you think you can't control this girl, you terminate her."38
Binkley thereupon made out a termination slip for Tesh
giving the reasons for the discharge as, "Did not conform
to requirements with respect to unexcused absence and
reporting this and poor quality on work."
Binkley testified, however, that, "I fired her [Tesh]
because she had been defying me for the 2 years I had
been in that department, and this [October 28 episode]
was another defiance and I had gotten all of it that I
wanted."
About 3 p.m. Binkley and Stonestreet stopped at Tesh's
table where Binkley ordered Tesh into his office where he
said he had some defective work to show her. In the office
Binkley showed Tesh some defective work. Tesh
expressed doubts about this work being hers. Then
Binkley told her that that was not the reason, or "the
primary reason" according to Binkley, he had called
her into the office. He thereupon told Tesh that she had
"deliberately" laid out of work the day before, did not call
him, and did not report to her supervisor, Stonestreet,
upon her return from an unexcused absence and so she
was discharged.
According to Binkley's testimony, he then offered Tesh
an exit interview and ordered Stonestreet to get Tesh's
personal belongings out of her table. Tesh objected that no
one was allowed to handle her personal belongings
whereupon Binkley instructed Stonestreet to stand guard
by Tesh's table. By this action "Roxie again defied me"
was the way Binkley described it.
Binkley accompanied Tesh for the exit interview to see
Personnel Director Frederick after Superintendent Young
relayed word that he, Young, had nothing to say to her.
Frederick requested her to sign a discharge slip. Tesh re-
33 Although Tesh had worn the button all day, Binkley
apparently only noted this alleged "confusion "after lunch and
particularly while he was walking to Tesh's table, interest
created, perhaps, by the employees' curiosity as to Binkley's
intentions
as General Counsel refused to amend the complaint to allege
this to be a 8(a)(1) violation
37 Binkley testified that he did not subscribe to the local
newspaper Whether he owned a television was not probed at the
hearing However,lhe had heard reports both about the interviews
in the newspaper and over television.
38 Young did not testify
HANES HOSIERY DIV. 49
fused because the reason for discharge stated thereon was
not true, particularly the "poor quality on work," and
asked Frederick to check the records. Frederick's answer
was that he did not need to, that he took the word of the
foreman.
On August 8, 1965, Respondent had published a "new
and improved" grievance procedure. In its letter of
transmittal of this new procedure Respondent stated, "We
want your problems to be heard, and we intend for them to
be resolved."
Under this procedure Tesh asked Frederick to see Plant
Manager Waggoner. She saw him and protested that the
reasons cited for her discharge were untrue and that she
was being fired for union activities. Waggoner merely
informed Tesh that her union activity had nothing to do
with the discharge. Tesh thereupon requested to see
President Gordon Hanes. Upon seeing Hanes the
following day, Tesh asked him to check her records to
prove that the poor work claim, at least, was untrue. Hanes
refused on the ground that there was no need as the
foreman and superintendent's word was "good enough"
for him.39
b. Conclusions
To Respondent's admitted knowledge Tesh was an
ardent advocate and worker for the Union: Co-chairman of
the empployees ' organizing committee , solicitor of union
memberships, distributor of union leaflets, and wearer of
union buttons. She was also the leader and spokesman for
the pairing department sit-downers, an episode which
caused Hanes to remark that their action would bring the
Union to plant gates and to irritate Binkley.
In addition Tesh was an employee who stood on her
rights. She pursued Respondent's new (August 8)
grievance procedure, which Respondent allegedly
set up because it "wanted" the employees' problems
heard and "intended to have them resolved," to the very
end. Gordon Hanes proved the futility of his own new
procedure by refusing to investigate the facts as re-
quested on the grounds that the word of the foreman and
the plant manager was "good enough" for him. Hanes'
refusal now looks rather silly in the face of Respondent's
concession at the hearing that poor work had nothing to do
with this discharge.
Despite the phraseology of the termination slip Binkley
testified that he discharged Tesh on October 28, 1965,
"because she had been defying me for the 2 years I had
been in that department."
According to Binkley, this defiance began at some
indefinite date "early in 1964," or in December 1964 or
January 1965,40 when Tesh "sarcastically" gave him 2
weeks' notice of quitting because he would not allow her to
move her worktable but subsequently that same day
apologized to him and withdrew her notice. Because of
Binkley's complete indefiniteness as to even the year in
which this so-called "defiance" occurred, it is
possible-but not probable-that this "defiance"
occurred prior to Respondent's knowledge of Tesh's
interest in the Union.
According to Binkley, Tesh's second alleged "defiance"
of him occurred in the "spring" of 1965, and, therefore,
long after Tesh was known to be active in the Union, when
39 Contrary to Hanes' statement, Respondent conceded at the
hearing-and Binkley so testified-that "poor quality on work"
had nothing to do with the discharge of Tesh Thus the "cause" of
she "very sarcastically" had requested hourly pay for
picking up hose which had fallen off the antenna on her
table. Upon Binkley's refusal she turned and walked away
from him. Binkley immediately reported to his superior,
Young, that Tesh was showing "defiance" and was "hard
to control."
The third alleged "defiance," according to Binkley,
occurred on April 23, 1965, when Tesh asked Binkley
"why" she had to remove the large union button when he
ordered her to do so. Again Binkley reported to Young.
Although Binkley failed to mention the July 27 sitdown
strike as an act of "defiance" of him on Tesh's part, this
sitdown had "disgusted" Binkley.
The last act of defiance in Binkley's estimation was
Tesh's "deliberate" failure to follow what he said was the
"regular" company procedure by reporting back to work
after a 1-day absence for illness directly to the supervisor's
table to secure a slip from the supervisor to see the nurse
before going to her own worktable.
The issue in this case in Respondent's theory of it thus
gets down to the question of what constituted "regular"
company practice and procedure employees returning
from a 1-day absence from illness should follow and
whether Tesh "deliberately defied" Binkley by not
following it. Tesh's failure to follow what Binkley
maintained was regular company procedure amounted to
what he called "deliberate defiance" of him and was thus,
in Respondent's view, the "cause" of her discharge.
According to Binkley, regular company practice and
procedure for an employee returning from an absence due
to sickness required the employee to report directly to the
table of her supervisor, there secure a slip to see the nurse,
be checked by the nurse, and then for the first time return
to her own table and commence work. Binkley stoutly
maintained this to be established company procedure,
although finally admitting that he himself had had no
personal experience with it, and that "conceivably" the
procedure might vary according to the supervisor
involved.
On the other hand Tesh testified from her 6 years'
experience under the supervision of Elva Stonestreet that
in actual practice in her section the employee returning
from such an absence, returned to her own table and
worked until Stonestreet appeared at the employee's
table, which she customarily did promptly and gave her a
slip to see the nurse whereupon the employee went to the
nurse, was cleared, and then again returned to her own
worktable and continued working.
The actual difference between these two versions of
"regular company procedure," to wit, whether the
employee returned to her own worktable or to her
supervisor's originally, may well seem picayunish but,
according to Respondent, that difference constituted the
"cause" which justified the discharge of Tesh.
In fact it may seem so picayunish as to indicate that
Respondent here was searching for something, anything,
to justify the discharge.
Little time or effort is needed in order to determine this
conflict. If there was one person who knew from long
firsthand experience what the actual practice was in her
section, it was Elva Stonestreet, the supervisor who
handled it. But, as became almost customary in this case,
Respondent did not choose to call Stonestreet as a witness
Tesh's discharge was reduced to her failure to report to
Stonestreet before commencing work
40 Binkley was indefinite
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor to account for her absence although the evidence
indicated that she was still available. The inference from
this failure is clear. I draw it and consequently find,
contrary to Binkley's testimony, that regular company
practice in Stonestreet's section, at least, was as described
by Tesh, and, as a subsidiary thereto, that on October 28,
1965, Tesh did not, "deliberately" or otherwise, violate
regular company practice in waiting at her own table for
Stonestreet to bring her the slip for the nurse.
Thus the main "cause" specified by Respondent in its
termination notice to Tesh is false. The charge of poor
workmanship against Tesh stated as the other reason on
the termination slip was equally false due to Respondent's
concession at the hearing that Tesh's workmanship was
not in question. Consequently both reasons noted by
Respondent on said termination notice was untrue.
It is significant that, even from Binkley's description
thereof, each of the claimed "defiances" by Tesh of
Binkley-with the possible exception of the first-were
directly connected with the union, concerted activity or
collective bargaining. In addition, Tesh had been one of
the known union adherents who distributed union leaflets
at the plant gates on August 12, the day before
Respondent began its "firing spree," a spree to which
such distributors were peculiarly susceptible.
Accordingly, I am convinced, and therefore find, that
Respondent discharged Roxie Tesh on October 28, 1965,
after over 6 years' employment because of her known
union membership and numerous activities on behalf of
the Union, and in order to discourage other employees
from such membership and activities in violation of
Section 8(a)(1) and (3) of the Act.
5. Maxine Holcomb
a. The facts
Maxine Holcomb's employment with Respondent began
in January 1955 and ended with her discharge on
November 19, 1965. She signed a union authorization card
in April 1964 and became active in soliciting other
employees to sign cards, distributing union literature and
attending union meetings. Her name was one of those
submitted in the letter from the Union to the Respondent
on June 8, 1964, as an active member of the Union.
Respondent sent Holcomb a copy of its answer to this
union letter.
Her union activity was thus known not only to
Respondent but also to her foreman, Thurman Binkley,
who on one occasion in June 1965 told her, in answer to
her question as to how her work compared with that of the
others, that if she would leave the Union alone she would
not have to worry about her job.41
On July 27, 1965, the pairers engaged in the sitdown
strike because of the change in their work duties and
because Respondent had abandoned the practice of
permitting them to see their weekly quality and production
reports which affected their pay as they were all paid on a
piecework basis.
41 Binkley denied having made this remark but Binkley's
credibility was suspect
42 Sometimes spelled Spaniard in the record
43 This was only the fourth written warning which Holcomb had
received during her 10 years' employment
44 This was the first time Holcomb had ever heard of a batch of
Holcomb was elected as a representative of her line and
along with 16 other such elected representatives, including
Tesh about whom Binkley also testified, met with various
Respondent officials, including Hanes, Waggoner,
Frederick, and Young, over a period of several days trying
to settle this strike. At one of these meetings Young
claimed that some employees contended that they were
not being represented correctly because some of the
elected representatives were members of the Union.
Young then requested all such union representatives to
raise their hands. Although disputing the claim of
misrepresentation on the grounds that the employees
knew them to be prounion before electing them as such
representatives, Holcomb and Tesh raised their hands at
this time along with others.
Because of her part in the strike Holcomb appeared on a
local television station as one of the spokesmen for the
strikers.
During the strike Holcomb passed out leaflets at the
gates. Her picture doing so appeared on the local
television station.
On August 12 Holcomb with Tesh, Gentry, Infinger,
Logan, and Hazel Boles among others passed out leaflets
for the Union at the lower gate of the plant.
Three or four days later, or about August 16, Holcomb
was sent to the office where she found Binkley and
Forelady Spainhour42 who showed her a batch of work
which had "picks" in the hose. Binkley asked Holcomb
to sign a warning slip which stated that it was Holcomb's
"final warning." Holcomb refused.43
On November 19, 1965, Binkley came to Holcomb's
table and ordered her into the office where Assistant
Foreman Harris and Supervisor Spainhour had already
gathered. Binkley told Holcomb that he had had the count
off department check a batch of Holcomb's work44 and
that the check showed the work to have been very bad
with numerous picks in the hose. He displayed the bad
work to Holcomb who admitted that the work was not
passable but maintained that many of the picks looked as
though they had been made after leaving her as well as
questioning whether the work was hers although the
traveler on the batch of stockings tallied with her daily
record.45 However, Binkley informed Holcomb that she
was terminated for the unsatisfactory quality of her work.
The termination slip signed in Frederick' s name on
November 22, 1965, stated the cause of discharge as
"discharged-quality unsatisfactory."
On November 22 Holcomb returned and saw Frederick
and Waggoner. She requested her job back on the ground
that they knew as well as she that she had been discharged
for her union activities and not because her work was
unsatisfactory. Frederick answered that the foreman had
said that her work was bad and that "it would stand as
that." Holcomb then requested the right to see Hanes as
provided for in the Respondent's new grievance procedure
of August 8. Frederick said that it would do no good to go
any further but, when Holcomb insisted , said that he
would make an appointment for her with Hanes. Holcomb
was thereafter never notified of any appointment made for
her with Hanes. Nor has she been reinstated.
stockings being inspected in the count off department and the
first time that she had ever heard of Binkley going to the count off
department to pick up a bundle of work
45 The traveler is a paper ticket which travels with a lot of 24
dozen stockings It is not fastened to the lot of stockings
HANES HOSIERY DIV. 51
b. Conclusions
Thurman Binkley testified about the instant discharge
the day following his testimony regarding the "defiance of
him" allegedly displayed by employee Tesh. During his
testimony about Tesh, Binkley proved to a loud, arrogant,
and discourteous, as well as unreliable, witness. The
following day, while testifying about his discharge of
Holcomb, Binkley, perhaps as a result of overnight advice
or, perhaps, the character he was about to play, was a soft-
spoken, courteous, and complete humanitarian who had
suffered the shortcomings of Holcomb for many long years
because of her alleged home difficulties so that he was, in
his words, "real embarrassed" that he had put up with
Holcomb so long. He proved himself the complete
Thespian.
This sudden and complete reversal of character
overnight did not prove convincing for other reasons.
Binkley testified in vague and general terms that
Holcomb's work had been "very poor" since early 1964,
which coincided almost exactly with the time Holcomb
became prominently active on behalf of the Union.
According to Binkley, he had to speak to her about her
poor work at least twice a month thereafter and had to
return poor work to her "3 to 1" over any other operator in
his department. Also she had been absent a great deal of
the time due to sickness and other misfortunes. Binkley
testified that he retained her despite her poor work only
because of her innumberable problems at home, sickness,
her husband being out of work, etc., and because she
begged so hard to be permitted to retain her job. It was a
heart-rending tale-as Binkley told it.
Binkley did become specific in his testimony that on
Wednesday, November 17, before her discharge the
following Friday, some work of Holcomb's had been
returned from the count off department, where it had
somehow gotten without having been inspected as it
should have been in the pairing department. Binkley had
then had it specifically reinspected during which an
unacceptable number of "picks" were discovered.46 After
this special inspection Binkley took the lot of work to his
superintendent, Young, and it was then decided to
discharge Holcomb at the end of the week so that
Holcomb's supervisor, Spainhour, could be present. It was
at this time that Binkley felt "real embarrassed" at having
retained Holcomb so long.
During his testimony Binkley was full of vague,
indefinite details about how Holcomb had many times
pleaded that she would do better if Binkley would only
allow her to continue working during this 1964-1965
period, and how, at the time of her discharge, Holcomb
thanked him for having kept her at work so Iong despite
her poor work and her numerous absences-all of which
was denied by Holcomb.
Binkley even testified, from memory as usual, how
Spainhour had suggested at some indefinite time,
probably in 1964, that she required help in improving the
quality of Holcomb's work and suggested taking action
against Holcomb at that time-which, according to
Binkley, he refused to do at that time because of
Holcomb's many trials and tribulations.
As so frequently occurred in this case, Respondent did
not call Spainhour as a witness nor account for her
absence. Again I must draw the clear inference from this
failure, particularly as Spainhour, the immediate superior
of Holcomb. must have known the facts regarding
Holcomb's work at least as well as Binkley.
In the light of his other testimony above referred to, it
was surprising to hear Binkley admit, also from memory,
that Holcomb's earnings throughout this period were only
"just" below the average earnings of the employees of the
department. This admission, secured on cross-
examination, tended to discredit the prior Binkley
testimony.
The evidence further showed that in the pairing
department Respondent maintained a little black book
containing a single sheet for each individual employee
upon which for a 6-month period Respondent recorded
that employee's individual quality and production quality
and production report on an individual sheet. After 25
weeks, a 6-month period, these individual record sheets,
according to Binkley, were removed from the black book
and destroyed. This occurred on July 1 and January 1 of
each year. The sheet from this black book on Holcomb's
quality and production for the period July 1, 1965, to
December 31, 1965, would have been rather conclusive as
to which version of Binkley's testimony was to be believed.
The sheet was not produced. According to Binkley, the
Holcomb record of some 19 consecutive weeks was
"probably" destroyed on January 1. 1966. Thus
Respondent destroyed this record some 5 weeks after the
charge regarding Holcomb had been filed on
November 24, 1965, at which time Respondent knew that
it would have to defend the Holcomb discharge on the
basis of allegedly poor work, a fact which these records
could have proved or disproved.
Holcomb was paid on a piecework basis. Her payroll
record would thus reflect both the quality and quantity of
her work. Federal law requires the retention of such
payroll records. The payroll records for Holcomb were not
produced.
In the light of all these circumstances I can only find,
and hereby do, that Holcomb was little, if any, worse than
the average worker in the pairing department and that
Respondent has failed to prove that it discharged Holcomb
after 10 years of apparently satisfactory employment
because of the poor quality and quantity of her work or for
cause.
The facts here show that Respondent did in fact begin a
"firing spree" on August 23, 1965, among those known
union adherents who had the temerity to distribute union
leaflets at the plant gates the evening before. Holcomb was
one such distributor. Four days later, August 16, Binkley
presented Holcomb with a written "final warning" slip,
only the fourth written warning Holcomb had received
during her 10 years of otherwise apparently satisfactory
employment. Binkley was obviously preparing the way for
the unique inspection of November 19, 1965.
I am convinced by all the facts that Respondent
discriminated in regard to the hire and tenure of
employment of Maxine Holcomb on November 19, 1965,
because of her known membership and activities on behalf
of the Union and in order to discourage such membership
and activities among its employees in violation of Section
8(a)(3) and (1) of the Act.
'fi This corroborates the testimony of Holcomb that she had
never heard of this procedure before.
298-668 0-69-5
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. John Matt Davis
a. The facts
When Respondent discharged John Matt Davis on
December 31, 1965, Davis had been employed by
Respondent for a total period of 12 years with
approximately the last 10 years of employment being as a
fixer.
In 1961 when Davis was the fixer on line 22, it is
undenied that Paul Hemrick, then the knitting foreman
who subsequently became the knitting superintendent,
complimented Davis on the way Davis had improved the
line. In November 1963 Hedgecock, knitting
superintendent, also took occasion to compliment Davis on
his work.47
Davis joined the Union in March 1964. He became
chairman of the organizing committee, attended union
meetings, solicited employees in the plant and at their
homes as well as distributing leaflets at the plant gates. In
December 1964, the Regional Office of the Board located
in Winston-Salem dismissed a charge filed by the Union
alleging the discharge of one Dale Dumont to have been
discriminatory. Davis, Lewell Gentry, and a few other
employees expressed their disapproval of this action by
picketing the offices of the Regional Office in downtown
Winston-Salem, an action which received TV and
newspapers coverage which included the names of the
picketing employees. In addition the Union submitted
Davis' name to Respondent by a letter as an active union
member. The evidence _proved, and I find, that Respond-
ent well knew of Davis' union membership and activities.
About February 1965, Davis was moved with line 102
from the Weeks plant to the Ivey Avenue plant as the fixer
on the first shift.
On June 11, 1965, it is undenied that George Dowell,
then foreman over line 102, came to that line as Davis was
taking the first stocking of the shift off the machine in
order to check the sizes. Dowell informed Davis that they
had to do something about the looper lines. Davis asked
what was wrong with them stating that they looked all right
to him and handed Dowell the stocking he had in his hand
as proof. Dowell then added with emphasis that "they had
chewed him out until he was sore, and he was tired of it, so
that he was going to chew somebody else, he was going to
pass it on." Davis pointed out that his looper lines were all
right and that he had had no complaints about them.
Dowell thereupon replied, "I had had my orders" and
departed.
According to Davis, Dowell thereafter watched line 102
very closely until he retired a month later because of his
health. Dowell was succeeded as foreman by
Dillard Shermer.
Shermer testified positively that line 102 was "bad" in
June 1965, i.e., "below 97 percent" production, and
thereafter got progressively worse- until it became one of
the better lines in the plant immediately following Davis'
discharge.
This outburst by Dowell and the testimony of Shermer
are most surprising for the only production records
produced at the hearing prove that Davis' first shift on line
' Neither Hemrick nor Hedgecock denied this testimony of
Davis.
11 Respondent did not call Hedgecock as a witness and
Shermer was not asked to testify regarding this incident. Nor was
the written reprimand introduced at the hearing.
49 According to the testimony of Shermer it was early in
102 for the week of June 4, 1965, was producing at 97.91
percent of production, at 98.71 percent for week of
June 11, and at 98.98 percent for the week of June 18,
whereas the production average for the plant was at that
time only 97 percent, according to Shermer. It thus
appears that Dowell must have been given these "orders"
and "chewed out" about the first shift on line 102 about
something other than the production of that line on that
shift. It also appears that Shermer's testimony about
line 102 first shift was both inaccurate and untrue.
Early in November 1965 Shermer called Davis from the
line and stated that they were going to have to do
"something" about production. Davis answered that
production was not in question, that he, Davis, was "best
hand" and a good fixer but that "union activities are my
trouble." Shermer replied, "I have to write you up for my
own protection."
The following week Sherman brought a written
"warning slip" to Davis and requested that Davis sign it.
Davis refused to sign the warning which related to poor
production on the ground that "production had nothing to
do with it, that it was in the books for me to be fired. That
regardless of what I did I would be fired, if it wasn't for
production, they would hatch up something else." Davis
reminded Shermer of the times that he had complimented
Davis on his work and that he, Davis, was working "hard"
because he was being watched. Shermer answered, "I
know, John, but I have to write you eup for my own
protection."
A few days later, about November 12, Shermer took
Davis to see Superintendent Hedgecock who asked Davis
"why" he had not signed the warning.
When Davis again pointed out that his production had
nothing to do with the warning, Hedgecock countered by
saying that Davis was showing "poor cooperation." Davis
inquired if they wanted him to quit, "turn in my time," or
to say that unless his production increased in 2 weeks that
he would quit. Davis reiterated that his " union activities
was the cause of the trouble, not my work on the job."
Hedgecock said to Davis that his "outside activities could
interfere with his work at the plant." Davis denied this
saying that "what I do away from the plant is my own
business ." Hedgecock answered, "that what Davis did
away from the hoisery mill concerning [his work] at the
hoisery mill was company business." Davis continued to
refuse to sign this slip despite Hedgecock's suggestion
that "it was showing poor cooperation with the Company,
that [Davis] wasn't cooperating as [he] should." However
Davis was sent back to line 102 to "see how things would
work out."a"
About November 15, Davis took occasion to inform
Hedgecock and Shermer that their continuous "riding"
and "watching" him was bothering him. Both denied
"riding" or "watching" Davis.
In Decembers" Shermer brought some stockings to
Davis which Shermer and the traveler attached to them at
that time indicated were from Davis' shift. The sizes of the
stockings were "very bad," or , in Davis ' words, "the worse
he ever saw," varying in length from 3 inches long to
3 inches short, a 6-inch variation.'" Davis accepted
December, according to Davis about the middle of December.
i° The testimony proved that anything within one-half inch of
the standard size was acceptable and that variations amounting to
2-1/2 inches were almost never found. This was the testimony by
Respondent witnesses.
HANES HOSIERY DIV. 53
Shermer's words as to the origin of the stockings but
maintained that these variations in sizes were so great that
they would have been caught by the knitter and the
machine shut down. No written warning was given to
Davis on this occasion.
It is undisputed that Davis had volumet operator
Lewis Mills check his sizes promptly after having been
shown his batch of bad work and that the sizes in that
check on line 102 were all within one-fourth inch of the
correct size and, as such, first quality stockings."
Sometime during this period Shermer was called back
to work about 5:30 p.m. because the second shift had shut
down either 27, 26, or 13 of the 76 machines in line 102.52
At the hearing Shermer blamed Davis for the fact the
machines were closed down. However, it is notable that
the shutting down of the machines occurred 2 hours after
the end of Davis' shift, that Shermer did not give Davis any
written or oral warning in regard thereto, that Shermer
never criticized Davis for the event before the hearing, and
that, as a matter of fact, Davis, having heard of the matter
from the third shift fixer the next morning , went to
Shermer and asked him about the affair. Under these
circumstances it is hard to believe that even Shermer at
the time considered Davis to be at fault for whatever
actually did occur at that time.
On December 29,i'i 2 days before his discharge,
Shermer took Davis to the Week's plant to observe the
"preboarding" of a lot of stockings which Shermer said
came , from Davis' line and shift. Davis accepted Shermer's
word for this. Upon arrival Davis picked up the lot and
found them to be of first quality length from a visual
inspection thereof. Then two preboarding foremen put the
lot through the preboarding and baking process. Shermer
did not contradict Davis' testimony that the foremen, who
were not called as witnesses , appeared to deliberately pull
the stockings out of shape in the process. At the
conclusion of the process the stockings were not first
quality. No written warning was given to Davis.
According to Shermer's testimony, another batch of bad
work from Davis' shift came back on either December 30
or 31. Shermer immediately spoke to Hedgecock and it
was determined to discharge Davis as being responsible
for all the bad work on line 102. At the end of the shift on
December 31 Shermer again took Davis to Hedgecock who
commenced the conversation by again telling Davis that
Davis had showed "poor cooperation" and a "bad
attitude" in refusing to sign the warning slip of
November 12.'" For about 45 minutes Hedgecock
reiterated the fact that Davis had failed to "cooperate"
and that his "attitude was bad." Davis reminded
Hedgecock that Shermer had complimented him on being
a "best hand" and one of the better fixers and argued that
he was being discharged because of his union activities.
51 Although Mills was called as a witness on behalf of
Respondent he was not interrogated about this episode Shermer
also testified that Mills reported to him that the sizes on line 102
were running "fair" and that he was only finding bad sizes
"occasionally " Mills himself testified that, although line 102 was
the "worst" line in the mill for sizing, not very often did he find
sizes off more than one -half inch It is noteworthy that Shermer
never had Mills do any special sizing work on line 102
52 The date and the number of machines involved in this
incident was left very indefinite in the testimony
55 Shermer testified to no date for this incident The above date
is that given by Davis
54 Shermer admittedly had only asked Davis to sign one
warning slip and that was the occasion on or about November 12
55 These phrases are reminiscent of the Gentry discharge
Hedgecock admitted that Davis was a good fixer but
claimed that his cooperation was bad, adding that "outside
activities could affect his work,"-which Davis denied."
After 45 minutes of this sort of futile argument, Hedgecock
finally said, "I have said all I can say." Whereupon
Shermer told Davis, "John, we will have to let you go."
Davis requested permission to see Frederick.
On January 4, 1966, Davis saw Frederick who, after
hearing Davis' version of the matter, ended all argument
by saying, "the foreman's word is final." Frederick then
read the reason for the discharge from the termination slip
and requested Davis to sign the same. Davis refused on the
ground that the reasons stated therein were untrue Davis
said that no intelligent person could accept the fact that a
man who for 12 years had been "a best hand" suddenly
could become the worse and be discharged. Frederick
agreed that that was not "logical." When Frederick wrote
on the termination slip that Davis disagreed therewith,
Davis signed the same.56
Frederick thereupon called Plant Superintendent
Waggoner into the office and, when Davis posed his last
question to him, Waggoner agreed that "it was not
logical." However the discharge stood. When Davis asked
to carry his grievance over this discharge to Gordon Hanes
as provided in the letter of August 8, Waggoner's answer
was "I am the boss " Davis was never permitted to see
Gordon Hanes.-"
b. Conclusions
As against this strong prima facie case of discriminatory
treatment by Respondent of Davis, Respondent chose to
"prove" its defense of poor workmanship against Davis in
large part through the testimony of Foreman Shermer. It is
true that Respondent did call the second shift linefixer,
William R. Beck, and his knitter, Dean Mathews, and the
volumet operator on the first shift Lewis Mills.58
In brief the testimony of each of these amounted to no
more than that line 102 progressively went downward
productionwise during Davis' tenure as a fixer for reasons
none of them knew or was able to ascertain but that,
almost miraculously, the troubles in line 102 cleared up
immediately after the dismissal of Davis-also for reasons
none of them knew. This vague and generalized testimony
completely lacking in details and dates was of little or no
value. Opinions without factual basis are for the most part
worthless.
On the other hand on direct examination Shermer
testified most indefinitely concerning almost innumerable
instances of numerous dozens of bad work having been
returned from Davis' shift. In addition Shermer testified,
apparently from memory, of instances where line 102 had
fallen to "85" or "93 percent" of production. As
Respondent's fixers are paid on a production basis, the
Perhaps remembering that experience Hedgecock restricted
himself to the use of the phrase "outside activities" which,
however , equates with "union activities ," as used in the Gentry
incident
51 This termination slip itself was not produced at the hearing
However the report sent by Respondent to the Employment
Security Commission of North Carolina gave the reason for Davis'
discharge as follows "Discharge-work unsatisfactory Repeated
efforts made over a long period of time to get him to improve
performance and he failed to do so "
57 Hedgecnck called as adverse witness by General Counsel did
not testify in regard to any of the matters found above Frederick
and Waggoner were not called as witnesses by the Respondent
Hence this part of Davis' testimony remained uncontradicted
58 Referred to in the transcript as "Bannon Mills "
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll records of Respondent which under the law are
required to be retained by the employer would have easily
corroborated Shermer's memory, if that memory had been
correct. Respondent chose not to produce the payroll
records. The inference from this failure is clear.
It is very possible that the production on line 102 fell, as
Shermer claimed, to "85 percent" or "93 percent"
because on at least two occasions during this period of
time under question here Respondent's change crew
changed over half the line to "Sewtoe" styles. If there was
any unanimity in the testimony in this case, it was that,
when the change crew makes such changes in any line, the
production of that line falls radically. Shermer's testimony
implied that one of these changes, at least, occurred
subsequent to Davis' discharge. Shermer's testimony was
contradicted by both the other witnesses as well as Davis.
Shermer was mistaken.
During his testimony Shermer testified that he received
numerous lots of from 6 to 8 dozen lots of bad work from
Davis' shift which, if the testimony could be believed, were
always called to Davis' attention "I think," as Shermer put
it. A careful analysis of Shermer's testimony in this regard
reduces the number of these alleged instances to the same
instances found above based upon Davis' testimony. When
requested for times, dates, persons present, and the
conversation involved on these numerous alleged
incidents, Shermer's memory failed-completely.
Shermer appeared to be a most unhappy-and
uncooperative-witness when pressed for details
regarding these generalized incidents he had so glibly
referred to on direct examination.
Shermer's credibility had been badly strained by his
testimony that as early as June 1965 production on line 102
was less than 97 percent whereas the actual figures of the
Respondent, produced by General Counsel, prove that the
production on the first shift of line 102 was at that time in
fact over 97 percent and thus far above the average for the
plant.
Even as to the alleged many dozens of bad sizes
Shermer claimed he had called to Hedgecock 's attention
the day before, or the day of, Davis' discharge which
allegedly was the basis for the decision to discharge Davis,
it is notable that it is undenied that these bad dozens were
not only not shown to Davis on the occasion of his
discharge but that neither Hedgecock nor Shermer even
mentioned them during the 45-minute discharge interview.
It is almost unbelievable that these many dozens of bad
work would not have been even mentioned if, in fact, they
existed.
The testimony regarding this 45-minute discharge
interview, as given by Davis, serves merely to confirm and
strengthen the prima facie case of discrimination made
out by the General Counsel. The facts of this interview as
given by Davis, the only witness to testify in regard
thereto, remain uncontradicted in this record because
Respondent failed to produce Hedgecock as a witness or
to have Shermer correct any of Davis' testimony in regard
thereto. Thus, during this 45-minute interview neither
Hedgecock nor Shermer either produced or even
mentioned the alleged bad work which purportedly was
the cause of the discharge of Davis. Thus it seems clear
that this unproduced and unmentioned work was not the
cause of the discharge. On the other hand Hedgecock did
spend the 45 minutes fulminating about Davis' alleged
"lack of cooperation" in refusing to sign the warning slip
that Davis believed to be incorrect, his alleged "bad
attitude" towards Respondent and his "outside activities,"
clear and distinct references to Davis' well-known union
membership and activities. Hedgecock's total
concentration and concern for 45 minutes with Davis' well-
known union activities proves only that the alleged bad
work, even if it existed, had little, if anything, to do with
Respondent's decision to discharge Davis and that the real
and basic reason for the discharge of Davis was
Respondent's dislike for Davis' union membership and
activities. The undenied Dowell episode in June 1965
suggests the distinct possibility that even at that time
Respondent had the name of John Matt Davis on the list of
those union adherents who were to be included in the
forthcoming "firing spree" but which, in Davis' case, had
to be temporarily delayed probably because of the above-
mentioned production on line 102 during the month of
June, and until Respondent could find some more
palatable pretext for the discharge than the alleged poor
production in June.
Accordingly I am convinced, and hereby find, that
Respondent discharged John Matt Davis on December 31,
1965, because of his known union membership and
activities in violation of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship 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 Respondent has engaged in
certain unfair labor practices, it will be recommended that
it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
It also has been found that Respondent discriminated in
regard to the hire and tenure of employment of the
following named individuals on the following dates:
Nora Stewart Infinger August 13, 1965
Betty Bovender Logan August 13, 1965
Fredna Jean Settle August 13, 1965
Lewell Franklin Gentry August 18, 1965
Hazel Hill Boles August 20, 1965
Roxie B Tesh October 28, 1965
Maxine Holcomb November 19, 1965
John Matt Davis December 31, 1965
I shall accordingly recommend Respondent offer each of
the aforementioned individuals immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make each whole for any loss of pay he
may have suffered by reason of said discrimination against
him by payment to him of a sum of money equal to that
which he would have earned as wages from the date of the
discrimination to the date of his reinstatement, less his net
earnings during such period, in accordance with the
formula set forth in F. W. Woolworth Company, 90 NLRB
289, with interest thereon at 6 percent per annum
Because of the type of unfair labor practices engaged in
by Respondent, I see opposition by the Respondent to the
policies of the Act in general, and hence I deem it
HANES HOSIERY DIV 55
necessary to order Respondent to cease and desist
therefrom and from in any manner infringing upon the
rights guaranteed its employees in Section 7 of the Act.
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of
employment of the aforementioned employees by
discharging each of them on the date noted above, thereby
discriminating in regard to their hire and tenure of
employment and discouraging union membership and
activities among its employees and preventing its
employees exercising the rights guaranteed to them in
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8 ( a)(3) and (1) of the Act.
2. By interfering with , restraining , and coercing its
employees in the exercise of the rights guaranteed to them
in Section 7 of the Act, Respondent has violated Section
8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing finding of fact and
conclusions of law, and upon the entire record in this case,
I recommend that Hanes Hosiery Division, Hanes
Corporation, Winston-Salem, North Carolina, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging union membership and activities
among its employees by discriminating in regard to the
hire and tenure of any of its employees, or by
discriminating in any other manner in regard to any term
or condition of their employment in order to discourage
union membership or activities therein.
(b) Interfering with, restraining, or coercing its
employees in any manner in order to discourage union
membership or activities among its employees.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer to each of the individuals named below
immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make each
whole in the manner set forth in the section of this
Decision entitled "The Remedy":
Nora Stewart Infinger August 13, 1965
Betty Bovender Logan August 13, 1965
Fredna Jean Settle August 13, 1965
Lewell Franklin Gentry August 18, 1965
Hazel Hill Boles August 20, 1965
Roxie B. Tesh October 28, 1965
Maxine Holcomb November 19, 1965
John Matt Davis December 31, 1965
(b) Post at its plant in Winston-Salem, North Carolina,
copies of the attached notice marked "Appendix "59
Copies of said notice, to be furnished by the Regional
Director for Region 11, upon being duly signed by
Respondent's representatives, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that notices are not altered, defaced,
or covered by any other materials.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payments records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Decision.
(d) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply with the
foregoing Recommended Order.so
I FURTHER RECOMMEND that, unless within 20 days from
the date of the receipt of this Decision, the Respondent
has notified the said Regional Director that it will comply
with the foregoing Recommended Order, the Board issue
an Order requiring Respondent to take the aforesaid
action.
s In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the futthei event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
110 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to toad "Notify the
Regional Director fit Region 11, in writing, within 10 days from
the date of this Oider, what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discourage union membership or
activities of our employees on behalf of Textile
Workers Union of America , AFL-CIO, or any other
labor organization , by discriminating in regard
to their hire and tenure of employment of any
of our employees or in regard to any term or condition
of employment of our employees because of such
affiliation or activity.
WE WILL offer the following named employees
immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice
to their seniority or other rights and privileges, and
will make each of them whole for any loss of pay he
may have suffered by reason of the discrimination
practiced against him together with interest thereon
at 6 percent per annum:
Nora Stewart Infing-er August 13, 1965
Betty Bovender Logan August 13, 1965
Fredna Jean Settle August 13, 1965
Lewell Franklin Gentry August 18, 1965
Hazel Hill Boles August 20, 1965
Roxie B. Tesh October 28, 1965
Maxine Holcomb November 19, 1965
John Matt Davis December 31, 1965
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with,
restrain , or coerce our employees in the exercise of
their rights to self-organization , to form labor
organizations , to join and assist Textile Workers
Union of America , AFL-CIO, or any other labor
organization , to bargain collectively through
representatives of their own choosing or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to
refrain from any or all such activities.
HANES HOSIERY DIVISION,
HANES CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 1624 Wachovia
Building, 301 North Main Street, Winston-Salem, North
Carolina 27101, Telephone 723-2911, Extension 392.