James Lees and Sons Co.

National Labor Relations Board - Board Decisions

Jan 7, 1963

140 N.L.R.B. 487 (N.L.R.B. 1963)

JAMES LEES AND SONS COMPANY 487
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.
Employees may communicate directly with the Board's Regional
Office, The 120 Building, 120 Delaware Avenue, Buffalo 2, New York,
Telephone No. T1. 6-1782, if they have any question concerning this
notice or compliance with its provisions.
James Lees and Sons Company and Textile Workers Union of
America, AFL-CIO, CLC. Case No. 5-CA-2104. January 7,1963
DECISION AND ORDER
On September 20, 1962, Trial Examiner Harold X. Summers issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. The Trial Examiner also found that the Re-
spondent had not engaged in certain other unfair labor practices,
and recommended dismissal of the complaint insofar as it pertained
thereto.' Thereafter, the Respondent and the Charging Party filed
exceptions to the Intermediate Report and briefs in support thereof.
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in the case, and finds merit in the Respondent's exceptions for the
reasons discussed below. Accordingly, the Board adopts only those
findings, conclusions, and recommendations of the Trial Examiner
which are consistent with this Decision and Order.
The sole issue in this case is whether or not Raymond Tolley was
discharged in violation of Section 8(a) (3) and (1) of the Act. The
Trial Examiner found that Tolley was so discharged. We do not
agree.
Tolley was employed as an "alleyman," one of his duties being to
clean the peralta scrapers whenever a color change took place. Be-
fore August 1961, he had been reprimanded twice for failure prop-
erly to break up and spread waste wool which he had placed in the
1 No exceptions were filed to the Trial Examiner 's recommended dismissal of the alleged
independent violations of Section 8(a) (1), and we shall therefore adopt the Trial Ex-
aminer's findings and recommendations thereto pro forma
2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
( Chairman McCulloch and Members Leedom and Brown].
140 NLRB No. 40.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carding machine feedbox. In August 1961, he failed to clean a
peralta scraper during a color change and was laid off for 1 week.
At that time, Tolley was warned that a recurrence of the offense
might necessitate his discharge. On January 31, 1962, Tolley com-
mitted precisely the same infraction, failure to clean a peralta
scraper during a color change, and was discharged.'
Contrary to the finding of the Trial Examiner, the record reflects
that color contamination is a possible result of an uncleaned peralta
scraper. Such color contamination would result in a finished yarn
of inferior uniformity of color which might be unacceptable to cus-
tomers. It should be noted in this respect that during the 11/2 to 2
years immediately preceding the hearing in this case, the Respond-
ent's method of operation had changed in that an increasing percent-
age of its product was sold to outside consumers, rather than being
utilized internally. Accordingly, control of the quality of the yarn
being produced became increasingly more important to Respondent.
Although finding that the Respondent had reasonable cause to be-
lieve, and did believe, that Tolley was responsible for not cleaning
the scraper on January 31, thereby causing the web to break, the
Trial Examiner concluded that Tolley was not discharged for that
reason. In so concluding, he was persuaded by the fact that the Re-
spondent did not follow its written disciplinary procedure which
called for a 1- or 2-week layoff for an offense following one punished
by a 1-week layoff, and for discharge only after the next offense.
However, both the Respondent's written disciplinary procedure and
its former policy provide for deviations from the normal practice;
and, as the Trial Examiner himself finds, ". .. in the past, Respond-
ent has effectuated Step Five discharges without going through
earlier steps . . ." in instances involving detriment to the quality of
the yarn being produced. Those occasions, referred to by the Trial
Examiner, where the respondent exercised unusual leniency, in-
volved such disciplinary problems as unexcused absenteeism rather
than the quality of the yarn. According to the Trial Examiner, the
Respondent's underlying motivation in discharging Tolley was the
latter's activity on behalf of the Union. But the only union activity
by Tolley disclosed in the record is that he was an alternate observer
for the Union at a Board-conducted election in March 1960, and that
he served as a union observer in a second such election in I%farch
1961, almost a year before his discharge. Between March 1961, and
his discharge, Tolley is not shown to have engaged in any union ac-
activity. Nor does the record establish, contrary to the Trial Ex-
aminer, that the Union had stepped up its organizational efforts in
3 Witnesses for the Respondent testified without contradiction that Tolley's two failures
to clean the scraper during a color change were the only such incidents to come to
Respondent 's attention in its entire history.
JAMES LEES AND SONS COMPANY 489
late 1961 and early 1962. Except for his finding as to Tolley, the
Trial Examiner found no other unfair labor practices by the Re-
spondent. On the basis of the foregoing, and upon the entire record,
we believe that the General Counsel has not sustained his burden of
proving by a preponderance of the evidence that Tolley was dis-
charged for a discriminatory reason.4 Accordingly, we shall dismiss
the complaint in its entirety.
[The Board dismissed the complaint.]
4It should be noted in this respect that Tolley's discharge was initially recommended by
his shift foreman, Harris, and that recommendation proceeded in a routine manner through
normal channels until a final decision was reached . The record is devoid of evidence that
Harris was motivated by any antiunion considerations in making his recommendation.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon unfair labor practice charges filed on February 9, 1962, by Textile Workers
Union of America, AFL-CIO, CLC, herein called the Union, against James Lees
and Sons Company, herein called Respondent, the General Counsel of the National
Labor Relations Board issued a complaint on June 11, 1962, alleging that Respondent
had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and
(3) of the National Labor Relations Act, herein called the Act. Respondent's
answer admitted some allegations of the complaint, denied others, and denied
the commission of any unfair labor practices. Pursuant to notice, a hearing was
held before Trial Examiner Harold X. Summers at Lexington, Virginia, on July 17,
1962. All parties were afforded full opportunity to examine and cross-examine wit-
nesses, to argue orally, and to submit briefs. Briefs have been filed by the General
Counsel and by Respondent, which briefs have been fully considered.
Upon the entire record in the case, including my evaluation of the credibility
of the witnesses based upon the evidence and upon my observation of their demeanor,
I make the following:
FINDINGS OF FACT
1. COMMERCE
James Lees and Sons Company is a Pennsylvania corporation with a plant and
principal place of business at Glasgow, Virginia, where it is engaged in the manu-
facture, sale, and distribution of carpets and yarns.' In the course and conduct of
its business during 1961, Respondent shipped carpets from its Glasgow plant to
points outside the Commonwealth of Virginia, valued at in excess of $100,000.
I find that Respondent is an employer engaged in commerce within the meaning
of the Act
II. THE UNION
Textile Workers Union of America, AFL-CIO, CLC, hereinafter called the
Union, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At least since April 1958, the Union has continuously engaged in a campaign to
organize Respondent's nonsupervisory production and maintenance employees.
Pursuant to a petition filed with the Board 2 by the Union, an election among such
employees was conducted on March 16, 1960; the Union lost, 316 to 1,674. Upon
objections filed by the Union, the election was set aside, and a new election was held
on March 2, 1961; the Union lost, 765 to 1,193. Late in 1961 and early in 1962,
1 Although the record In this respect Is not complete, it appears that Respondent is, a
subsidiary of Burlington Industries, not a party hereto.
2 Case No. 5-RC-3018 ( 130 NLRB 290).
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's organizing efforts were stepped up with a view toward the filing of a new
petition for election, but the instant record does not reveal whether any such petition
was filed.
Throughout the period above referred to, up to the date of this hearing, Respond-
ent was and is actively opposed to the unionization of its employees?
B. Independent interference, restraint, or coercion
The complaint alleged, as independent interference, restraint, or coercion, one
incident-a conversation occurring on or about February 19, 1962, between Silas
Foster, a shift foreman,4 and George Mason, a utility man in the carding department,
in which, allegedly, Foster threatened Mason with "discharge or other reprisals" if
Mason became or remained a member of or gave any assistance or support to the
Union.
According to Mason's testimony, he was engaged in duties taking him through
Foster's work area-Foster was not his supervisor-when the two became engaged
in a conversation about the Union's passing out leaflets at the gate. (Mason did
not say who started the conversation.) Foster offered his "personal advice"
that Mason should not speak up for the Union out in the mill to other employees
on the job but that, if anything, he should talk against it-that if "they" found out
about it, "they" were liable to fire Mason. Mason asked Foster if he thought (the
coming in of) the Union could "help the plant." Foster replied that he did not
know, and he countered by questioning what the Union could give Mason that he
did not already have. He then said that the plant had been operating "in arrears"
since the first campaign and that "we stood a chance of the plant closing down"
whether or not the Union came in.5
Foster's testimony differed appreciably. He denied that, on February 19 or at
any other time, he had a conversation or conversations with Mason along the lines
testified to by Mason except as follows: On one occasion, in 1962, Mason passed
through Foster's department while some wool from Peerless Mills was being restacked;
Mason asked where the wool came from and, being told, asked whether that place
had not been shut down by a union; Foster answered in the negative, stating his
understanding that Peerless had lost money for a year or two and could not afford
to continue its operation. Further testifying, Foster said it was entirely possible
that he had asked Mason what he expected the Union to accomplish for the
employees since he had asked this of a number of employees. Specifically, he denied
ever telling Mason not to talk in support of, or to talk against, the Union; ever
telling Mason that he was liable to be discharged; or ever telling Mason that the
plant would close down.
I was not impressed by Mason as a witness. At times, he testified hesitatingly;
at others, he was pugnacious. Foster struck me as being straightforward in his
testimony, even where he might possibly have considered parts of it to be against
his own interests 6 I credit his testimony, finding that the General Counsel has
not preponderantly established the allegation that Foster made threats of reprisals.?
C. The discharge of Raymond Tolley
The complaint alleged that, on or about February 2, 1962, Raymond S. Tolley
was discharged by Respondent because of his membership in, assistance to, or activity
on behalf of the Union and/or because he engaged in concerted activities with other
of Respondent's employees for the purpose of collective bargaining or other mutual
3 Although not urging it as an unfair labor practice of itself, the General Counsel intro-
duced evidence in support of this finding . Without conceding its relevance , Respondent
stipulated to the fact above found , and the Trial Examiner , at the hearing , indicated that
no further evidence on the point was necessary.
4 Stipulated and here found to be a supervisor within the meaning of the Act.
5 On direct examination, Mason had testified that the shutdown might occur if the
Union came in; on cross-examination he revised the statement as indicated above
6 For example, his concession that he asked some employees what they expected to gain
by the advent of the Union
7In his brief , the General Counsel asks me to find unlawful interference, restraint, or
coercion on Poster 's testimony alone-that he might have asked Mason what Mason ex-
pected to gain from the Union since he had asked a similar question of at least 15 em-
ployees. Aside from the fact that the complaint pinpointed the alleged violations of
8(a) (1) to a single "threat of discharge or other reprisals ," I do not find any coercive
threat in the putting of this question , standing alone.
JAMES LEES AND SONS COMPANY 491
aid or protection. Respondent, answering, admitted that Tolley was discharged
on or about that date, but not for the reasons alleged; further explicating at the
hearing, Respondent started that Tolley was discharged because of his poor work
performance.
Tolley was hired by Respondent on or about May 2, 1947. During most of his
period of employment-14 years and 9 months-he worked in the carding depart-
ment. On the day of his discharge and at all pertinent times prior thereto, he was
an "alleyman" in that department.
The alleyman is one of a crew attending a carding machine. The carding machine
is designed to convert raw wool (which has been cleaned and, sometimes, dyed)
into "card roving" which can be spun into yarn. The machine consists of a series
of 60-inch metal rollers over and through which a wool "web" proceeds; basically,
it utilizes a combing process to break out knots, remove burrs, and straighten fibers,
and a pressure process to squeeze out impurities such as tars and vegetable matter.
The alleyman's direct responsibilities center around the so-called peralta section.
Here, the web passes between an upper and a lower peralta roller, under 3,500 pounds
of pressure. As the web passes on, impurities adhere to the peralta rollers until
they are scraped off by the peralta scrapers, two machinewide blades which them-
selves press against the upper and lower rollers, respectively.
An alleyman services six machines. In general,8 the alleyman's job is one calling
for observing, cleaning, and assisting in startups, not only on his own machines but,
for short relief periods, on those of other alleymen. He sees that the web is properly
feeding from the breaker section behind him to the finishing section ahead of him;
he keeps check on the peralta pressure; and he reports trouble to appropriate
individuals. In startups, he assists in the threading process and, on signal, operates
the switches for the breaker rollers. Much of his time is spent in cleanup: sweeping
under and around the machines, cleaning out flies under doffer rollers, emptying
burr cans, hand-carding doffers and breakers, wiping comb boxes, removing and
replacing waste bags, and cleaning the peralta scrapers.
Since the latter task-the cleaning of peralta scrapers-loomed important in this
hearing, I here set forth further findings in this respect. Matter forced from the web
onto a peralta roller normally falls to the floor when it gets to a peralta scraper. On
occasion, impurities may cling to the scraper instead of falling to the floor, and,
should they not be cleaned off, further impurities approaching the scraper may adhere
to those already on the blade; a "buildup" or accumulation can then occur which,
when it touches the delicate web, will break the web and cause it to fall onto the
floor.9 The solution of course, is to keep the scrapers clean. Cleaning a scraper
takes no more than 2 minutes; it involves pulling a lever which disengages the
scraper from the roller and running a stick or airhose across the blade. The alley-
man's job description calls for the cleaning of each peralta scraper whenever neces-
sary, but at least twice per shift. The twice-per-shift requirement has not been
enforced, but it is normal and expected practice to clean the scrapers whenever
necessary, normally one or more times per shift. Finally, I find that one of the
"necessary" occasions for cleaning a peralta scraper is at a color change-i.e., when
the color of the web being run is changed.1°
On Friday, August 11, 1961,11 the alleyman on the shift following Tolley's re-
ported that the web on carding machine # 13 had been found broken. Investiga-
tion by company officials indicated to them that this had occurred as a result of a
buildup or accumulation following a failure, after a color change, to clean the peralta
scraper on the machine, Tolley's responsibility. Although Tolley protested that he
8 A job description appears in this record To a limited extent, the testimonial evidence
indicates that the actual practice of alleyman deviates from the particulars set forth in
the job description The duties set forth above, an amalgam of the written requirements
and the practice as testified to, constitute my findings as to what the job actually requires
9 Similarly, a buildup might occur if the scraper's tension against the roller is faulty,
but this is a rare occurrence.
39A color change necessitates certain other operations, some of them the responsibility
of the alleyman The entire machine undergoes a cleaning process If the change is to
an appreciably lighter color, an intervening synthetic "clean-up" web (later discarded) is
run through the machine for a short period. If there is no cleanup run, the forward por-
tion of the new-color web is discarded.
u Tolley testified that this incident occurred in June rather than in August Although
the exact date has no particular relevance here, I find that it occurred in August ; Tolley
was undoubtedly confusing the incident with a still prior occasion on which he was repri-
manded: on or about June 14, 1961, he was criticized for failing to spread out waste
material which he had placed in the feedbox of a carding machine.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had cleaned the scraper and that he had left no accumulation, he was laid off for
1 week.12
At the instant hearing, Tolley, in effect, reiterated his denial of responsibility for
the August 1961 incident, although he does not deny that he was told of the serious-
ness of the problem at that time. On the basis of the available evidence at this
hearing, including the credited testimony of witnesses Marvin Ferguson (the alley-
man whose shift followed Tolley's) and Douglas Harris (Tolley's shift foreman)
and an observation of the web material allegedly found on the floor, I find that Re-
spondent had reasonable cause to believe and did believe that Tolley, on August 11,
1961, failed to clean his peralta scraper between color changes.
On January 31, 1962, there was a similar occurrence. Samuel Critzer, alleyman
for Tolley's machines on the shift following Tolley's, found and reported that there
was a two-color accumulation on the lower peralta scraper of machine #16 which
had built up to such a point that it broke the web. Shortly after Tolley reported
for work the next day, he was called to the office, where he was asked about the
incident. He said that he thought he had cleaned the scraper and that he was unaware
that he had left any accumulating wool. He was told to go home for the day while
the case was being considered. When he returned the following day-February 2-
he was discharged.
The General Counsel broadly insinuates that there was in fact no failure to clean
the scraper on January 31. Through witnesses and in argument, he seeks to raise
doubts that the wool displayed at the hearing could have been "scraper-wool." Con-
sidering concessions by such witnesses that the characteristics of the wool which
persuaded them that this was not scraper wool could have resulted from being packed
in a bag for the 51/2 months since it was placed there, I cannot place great reliance
on this testimony. Moreover, the credited testimony of witnesses Critzer and
Ira Clark (foreman for the shift following Tolley's) convinces me, and I find, that
the scraper on machine # 16 was not properly cleaned after a color change and that
Respondent had reasonable cause to believe and did believe that the responsibility
was Tolley's.
The General Counsel's approach to the problem is a multipronged one.
He first alludes to the "background." He points out, as I have found, that Re-
spondent, at all times pertinent, has been and is actively opposed to the unionization
of its employees. Next, he has demonstrated-and I find-that Tolley was active
on behalf of the Union since prior to the 1960 election 13 and that Respondent was
aware of his activities. He has submitted evidence, and I find, that on or about
January 15, 1960, 2 months before the 1960 election, then Assistant Personnel Man-
ager Higgenbotham 14 told Tolley that he had seen Tolley's automobile parked in
front of union meeting places and that he assumed Tolley was interested in the
Union; that, when Tolley admitted his interest, Higgenbotham told Tolley he ought
to quit if he did not like it at the plant; that Higgenbotham further said that if he
were Tolley he would not bring in his wife for any more employment; and that
Higgenbotham told Tolley, "as a friend," that Tolley had "better let the Union alone."
And, finally, the General Counsel has submitted evidence, and I find, that on March 18,
1960, 2 days after the 1960 election, Walter Maybry 15 asked Tolley what he had
been doing at the union hall on the previous day; told that Tolley had gone there
to congratulate the organizers on a good campaign, Maybry said, "if [Tolley] felt
that way to get out of there and get out of Rockridge County"; and he added that
he did not want to see Tolley with the union organizers anymore.
As earlier indicated, one line of the General Counsel's attack on Respondent's
defense is his contention that Respondent did not in fact hold Tolley responsible
for either or both of the peralta scraper incidents, if in fact they occurred. I have
already rejected this contention.
The General Counsel also urges that, even if Tolley failed to clean the peralta
scrapers, his discharge was contrary to established company policy on work offenses.
Accordine to its own pronouncements, discipline cases were handled by Respondent
in the following manner: 16
12 This layoff was not urged as a violation of the Act.
18 He was an alternate observer for the Union at the first election and an actual observer
at the second.
14 Now in charge of plant security. It is stipulated, and I find, that Higgenbotham was
a supervisor within the meaning of the Act.
15 Then spinning department manager, now assistant superintendent of the spinning
mill . It is stipulated, and I find, that Maybry was then and is now a supervisor within
the meaning of the Act. -
1e What follows is a paraphrasing of Respondent's personnel policy No 14, which I find
to be in effect at all times pertinent herein.
JAMES LEES AND SONS COMPANY 493
1. For a first offense (unsatisfactory work, violation of rules, or "detri-
mental" display of attitude), there is to be a conference between foreman and
employee; upon a recurrence, a written statement of the facts-an "A.V.O." 17
should be placed in the employee's personnel file.
2. For the next offense, a second A.V.O. is inserted in the employee's per-
sonnel file, and the employee may be laid off for one week.
3. Recurrence of cause for disciplinary action brings about another A.V.O.
and a one- or two-week layoff, subject to the concurrence of the department
manager, division superintendent, and personnel manager.
4. Another recurrence will justify discharge, as recommended by the fore-
man and approved by the department manager, division superintendent, per-
sonnel manager, general superintendent, and general manager.
5. Any offense "may be so serious" as to justify layoff or discharge at any
of the above steps, subject to the approval of the department manager, division
superintendent, general superintendent, personnel manager, and general manager.
Tolley's discharge, according to Respondent, was effectuated under the paragraph
above numbered 5; contamination, or the possibility of contamination, was consid-
ered so serious a problem that the omission of step 3 was justified. The General
Counsel, on the other hand, argues that it was the desire to slow down the Union's
organizational campaign by visiting this disparately severe punishment upon a known
union adherent that motivated Respondent in deviating from its normal procedures.
There is no doubt, and I find, that color contamination was considered by Respond-
ent to be a serious offense. Contamination causes the rejection of yarns or carpets
and, perhaps, the loss of customers. The evidence, moreover, establishes that
Respondent's campaign against contamination had been particularly emphasized
over the past year and a half.
On the other hand, no actual contamination was caused by either of Tolley's
failures to clean his scrapers Further, I find, color contamination cannot result
from an unclean peralta scraper. Numerous witnesses, whom I credit, so testified.
The only witness who came near testifying otherwise 18 said that either of two things
might happen if a buildup became so great as to reach the web: (1) the accumulated
stock might reach and be dragged along with the web, or (2) the web would break
and fall to the floor. Aside from the contradicting testimony of others, it is clear
that a buildup could not have the first effect to which he testified; the witnesses were
unanimous in stating that the web was so delicate that, the moment the buildup was
so great as to reach it, it would break and fall to the floor.
Thus, I find that Tolley's actions caused neither contamination nor the possibility
of contamination. 19
In determining whether Respondent regarded Tolley's infraction of January 31
as "so serious" as to justify the omission of step 3 of its established disciplinary
policy, a number of additional elements must be examined.
Tolley worked for Respondent almost 15 years. For 14 years, as far as this record
reveals, his work was free of fault.
On 2 successive days in June 1961, Tolley failed properly to break up and spread
waste wool which he placed in the carding machine feedbox, a circumstance which
led to a step 1 A.V.O. In August, as earlier found, he failed to clean a peralta
scraper. He was given a lecture on work quality, A V.O. number 2, and a 1-week
layoff The question arises-if contamination, as opposed to general uncleanliness,
was then believed to be involved, why was not a step 5 discharge there invoked9
'Why, at the least, was he not warned that a recurrence would result in a step 5
discharge? (As I have found, color contamination, even then, was a serious prob-
lem ) The answer, I find, is that contamination was not involved, that the offense
was not considered "so serious" as to justify extraordinary measures. Yet, when the
same infraction occurred 51/2 months later, Respondent deviated from its normal
procedures
Not that deviation is unprecedented. But the deviation, to the extent it is revealed
by this record, is in the direction of relaxation rather than stringency. For example,
one employee (Samuel Critzer), having been orally warned about absences pre-
viously, received a No. 1 A.V.O.; on the next occasion, a No. 2 A V.O. and a 1-week
layoff; and, on the next occasion, because of his financial condition and the immi-
nence of the Christmas holidays, he received no punishment. Another (Lackey
Ayres), having been previously warned about absenteeism, was given an A V.O. upon
17 Standing for "Avoid Verbal Orders."
18 Carding and Blending Manager Chester Layman.
19 In so finding, I do not, of course, condone a failure to clean a peralta scraper, which
is in direct violation of Respondent' s rules
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recurrence; upon a further recurrence, he was given an A.V.O. but no layoff; subse-
quently, when he refused to watch the machine of another alleyman as required, he
was given an A.V.O. but no layoff; finally, when he used an airhose in violation of
rules and cursed his supervisor, he was given an A.V.O. and a 2-week layoff.zo
On the other hand, there is testimonial evidence that, in the past, Respondent has
effectuated step 5 discharges without going through earlier steps. One employee
(LeRoy Jennings) was orally warned about walking across a carpet-in-process with
greasy shoes; a few minutes later, he repeated the offense and was discharged forth-
with. And, although no further details appear in the record, one Claude Connor
was summarily discharged without resort to earlier disciplinary steps .21
On these facts, considering Tolley's work history, the nature of his offense, and
the treatment of other offenders, I am persuaded that, absent the Union's campaign
and Tolley's participation therein, Respondent would have followed its regular dis-
ciplinary procedure and would have laid off Tolley for the maximum of 2 weeks.
Upon the entire record, and on the basis of what I am convinced is a fair prepon-
derance of the credible evidence, in the light of the above analysis, I conclude that
Respondent's underlying motivation in discharging Raymond S. Tolley on February
2, 1962, instead of imposing upon him a disciplinary layoff, was his activity on be-
half of the Union; that by thus discharging him and refusing to reinstate him, Re-
spondent discriminated in regard to hire and tenure of employment; and that, thereby,
Respondent not only interfered with, restrained, and coerced employees in the exer-
cise of rights guaranteed them in Section 7 of the Act, but discouraged membership
in the Union, or any other labor organization, in violation of Section 8(a) (1) and
(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with its operations described in section I, above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
I have found that, absent union considerations, Respondent, rather than discharg-
ing Raymond S. Tolley on February 2, 1962, would have suspended him for a
2-week period. Having found that Respondent discriminated with respect to Tolley's
hire and tenure of employment, I shall recommend that Respondent convert, on
its payroll and personnel records, his discharge to a 2-week layoff or suspension,
offer him full and complete reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights and privileges, and make
him whole for any loss of earnings suffered by him because of the discrimination,
by payment to him of a sum of money equal to the amount he would have earned
from February 14, 1962, to the date of Respondent's offer of reinstatement, less
his net earnings during said period. Backpay shall be computed on a quarterly basis
in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB
289, 291-294.22
As the unfair labor practices committed by the Respondent are of a character
striking at the roots of employee rights safeguarded by the Act, it will also be recom-
20 Documentary evidence of these instances (plus several others in which deviation was
not shown ) were inserted in the record by the General Counsel on the basis of informa-
tion requested of and furnished by Respondent
21 In giving weight, as I do, to these instances , I place no reliance on the General
Counsel's assertions that Jennings and Connor, like Tolley , were the subjects of charges
before the National Labor Relations Board, and I reject his implicit contention that the
deviation from normal procedures , in their cases, was based upon union considerations
I am unaware of the course or the fate of their cases before the Board ; they were not
involved in this proceeding.
22General Counsel , in his brief, urges that the Recommended Order include an award
of interest on backpay . I believe that whether or not interest should be included in back-
pay awards is a matter to be decided by the Board as a matter of overall policy. To date,
no Board Order has awarded interest in a situation comparable to this. I shall , therefore,
make no provision for interest.
JAMES LEES AND SONS COMPANY 495
mended that Respondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing factual findings and conclusions, and upon the
entire record in the case. I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tioan 2(6) and(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating in regard to the hire and tenure of Raymond S. Tolley be-
cause of his activity on behalf of the Union, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3)
of the Act.
4. By the foregoing conduct, Respondent has interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed them in Section 7 of the
Act, in violation of Section 8(a)(1) thereof.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and(7) of the Act.
6. Except for the above, Respondent has not engaged in unfair labor practices
as alleged in the complaint herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in the case . I recommend that James Lees and Sons Company
of Glasgow , Virginia, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Textile Workers Union of America , AFL-CIO,
CLC, or any other labor organization , by discriminating in regard to the hire , tenure,
or other conditions of employment of any of its employees.
(b) In any other manner interfering with , restraining, or coercing its employees
in the exercise of their right to self -organization , to form labor organizations, to
join or assist any labor organization , to bargain collectively through representatives
of their own choosing , to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , and to refrain from any and all such
activities.
2. Take the following affirmative action, which I find will effectuate the policies
of the Act:
(a) Convert , on its payroll and personnel records, the discharge of Raymond
S. Tolley on February 2, 1962, to a 2 -week layoff or suspension ; offer him im-
mediate and full reinstatement to his former position even though this may neces-
sitate displacement of a present incumbent (or, if his former position no longer
exists, to a substantially equivalent position ), without prejudice to his seniority or
other rights and privileges ; and make him whole for any loss of earnings suffered
by reason of the discrimination against him , in the manner set forth in the section
above entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and the right to reinstatement.
(c) Post at its plant at Glasgow , Virginia, copies of the attached notice marked
"Appendix ." 23 Copies of such notice , to be furnished by the Regional Director
for the Fifth Region , shall, after being duly signed by an authorized representative
of Respondent , be posted immediately upon receipt thereof , and be maintained by
it for a period of 60 consecutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily posted . Reasonable steps
shall be taken by Respondent to insure that such notices are not altered, defaced,
or covered by any other material.
23 If this Recommended Order Is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
In the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "Pursuant to
a Decree of the United States Court of Appeals, Enforcing an Order" for the words
"Pursuant to a Decision and Order."
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Fifth Region , in writing , within 20 days
from the date of the receipt of this Intermediate Report , what steps the Respondent
has taken to comply herewith 24
It is further recommended that the complaint be dismissed insofar as it alleges
that Respondent , through its supervisor , Silas Foster , threatened an employee with
discharge or other reprisals if he became or remained a member of the Union or
gave any assistance or support to it.
u If this Recommended Order Is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Fifth Region, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and In order to effecuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Textile Workers Union of America,
AFL-CIO, CLC, or any other labor organization, by discriminating as to the
hire, tenure, or any other term or condition of employment of any of our
employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to organize, to form, join, or assist a
labor organization, to bargain collectively through a bargaining agent chosen
by themselves, to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection; or to refrain from any
such activities.
WE WILL convert, on our payroll and personnel records, the discharge of
Raymond S. Tolley to a 2-week layoff or suspension, offer him his former of
a substantially equivalent job (without prejudice to seniority or other employ-
ment rights and privileges), and pay him for any loss suffered because of our
discrimination against him.
JAMES LEES AND SONS COMPANY,
Employer.
Dated------------------- By---------------------------------------_=--
(Representative} (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon appJica-
tion in accordance with the Selective Service Act after discharge from the, Armed
Forces.
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.
Employees may communicate directly with the Board's Regional Office, 707 North,
Calvert Street, Baltimore, Maryland,Telephone No. Plaza 2-8640, Extension 2104,
if they have any question concerning this notice or compliance with its provisions.
Mitchell Standard Corporation and United Furniture Workers
of America , AFL-CIO, and its Local 270. Case No. d6-CA-1191.
January 7, 1963
DECISION AND ORDER
On September 19, 1962, Trial Examiner Eugene F. Frey issued his
Intermediate` Report in the above-entitled proceeding, finding that, the
Respondent had engaged in certain unfair labor practices and recom-,
mending that it cease and desist therefrom and take certain afrrhativ6
140 NLRB No. 44.